Case4:02-cv-05849-PJH Document1-1 Filed12/17/02 Page1 of 13

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 FRANCIE E. MOELLER,

)

)

11 EDWARD MUEGGE,

)

)

12 KATHERINE CORBETT,

)

)

13 and

)

)

14 CRAIG THOMAS YATES

)

)

15

Plaintiffs,

)

)

16 v.

)

)

17 TACO BELL CORP.,

)

)

18

Defendant.

)

Case No.
CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

19

Plaintiffs Francie Moeller, Edward Muegge, Katherine Corbett and Craig Thomas

20 Yates, by and through their attorneys Fox & Robertson, P.C., hereby submit their Class Action

21 Complaint for violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181,

22 et seq., (“ADA”) and the Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq. (“the Unruh

23 Act”).

24

25
Class Action Complaint
26 Demand for Jury Trial
Moeller v. Taco Bell Corp.

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1

INTRODUCTION

2

1. Over twelve years after Congress passed one of our nation’s landmark civil

3 rights law for people with disabilities, Defendant’s restaurants in California still maintain

4 barriers that prevent customers who use wheelchairs or scooters from the full, independent and

5 equal enjoyment of Defendant’s goods and services.

6

2. Defendant has been and is in violation of federal and state disability civil rights

7 laws, in that it has failed to comply with federal and state nondiscrimination statutes.

8

3. Defendant has discriminated and continues to discriminate against Plaintiffs in

9 many ways, including but not limited to failing to ensure that its restaurants are accessible to

10 individuals with mobility impairments who require wheelchairs or scooters for mobility.

11

JURISDICTION AND VENUE

12

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

13 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claim brought

14 under the laws of the State of California. The Court may grant declaratory and other relief

15 pursuant to 28 U.S.C. §§ 2201 and 2202. Money damages alone are inadequate, and Plaintiffs

16 have been suffering and will continue to suffer irreparable injury.

17

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

18

INTRADISTRICT ASSIGNMENT

19

6. This action arises in the county of Sonoma, Contra Costa and/or Marin and thus

20 should be assigned to the San Francisco or Oakland Division.

21

PARTIES

22

7. Plaintiff Francie E. Moeller is and has been at all times material hereto a

23 resident of the State of California.

24

8. Ms. Moeller has a degenerative disc, spondothesis, fibromyalgia, and functional

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 thoracic outlet syndrome, which affect her muscles and tissue. Ms. Moeller has physical

2 impairments that substantially limit several major life activities, including but not limited to

3 walking. She has a record of physical impairments that substantially limit several major life

4 activities and is regarded as having physical impairments that substantially limit several major

5 life activities. Ms. Moeller uses a scooter for her primary means of mobility outside of her

6 home and has a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

7

9. Ms. Moeller has a physical disability and/or medical condition as those terms

8 are defined in applicable California law, including Cal. Gov’t Code § 12926.

9

10. Plaintiff Katherine J. Corbett is and has been at all times material hereto a

10 resident of the State of California.

11

11. Ms. Corbett has post polio syndrome. Ms. Corbett has physical impairments

12 that substantially limit several major life activities, including but not limited to walking. She

13 has a record of physical impairments that substantially limit several major life activities and is

14 regarded as having physical impairments that substantially limit several major life activities.

15 Ms. Corbett uses a power wheelchair for her primary means of mobility outside of her home

16 and has a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

17

12. Ms. Corbett has a physical disability and/or medical condition as those terms

18 are defined in applicable California law, including Cal. Gov’t Code § 12926.

19

13. Plaintiff Edward Muegge is and has been at all times material hereto a resident

20 of the State of California.

21

14. As a result of a spinal cord injury, Mr. Muegge has physical impairments that

22 substantially limit several major life activities, including but not limited to walking. He has a

23 record of physical impairments that substantially limit several major life activities and is

24 regarded as having physical impairments that substantially limit several major life activities.

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 Mr. Muegge uses a power scooter for his primary means of mobility and has a disability within

2 the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

3

15. Mr. Muegge has a physical disability and/or medical condition as those terms

4 are defined in applicable California law, including Cal. Gov’t Code § 12926.

5

16. Plaintiff Craig Thomas Yates is and has been at all times material hereto a

6 resident of the State of California.

7

17. As a result of a spinal cord injury, Mr. Yates has physical impairments that

8 substantially limit several major life activities, including but not limited to walking. He has a

9 record of physical impairments that substantially limit several major life activities and is

10 regarded as having physical impairments that substantially limit several major life activities.

11 Mr. Yates uses a power wheelchair for his primary means of mobility and has a disability

12 within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

13

18. Mr. Yates has a physical disability and/or medical condition as those terms are

14 defined in applicable California law, including Cal. Gov’t Code § 12926.

15

19. Defendant Taco Bell Corp. (“TBC”) is a corporation incorporated under the

16 laws of California, with its principal place of business at 17901 Von Karman, Irvine, CA

17 92614. TBC owns, operates, leases and/or leases to Taco Bell restaurants in California,

18 including combination restaurants in which Taco Bell products and products of other

19 restaurants (for example, Kentucky Fried Chicken) are sold.

20

CLASS ACTION ALLEGATIONS

21

20. Plaintiffs Moeller, Muegge, Yates and Corbett seek to maintain this action as a

22 class action under Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

23 The class consists of all individuals with disabilities who use wheelchairs or electric scooters

24 for mobility who, during a time period to be determined by this Court, were denied, or are

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 currently being denied, on the basis of disability, full and equal enjoyment of the goods,

2 services, facilities, privileges, advantages, or accommodations of any Taco Bell restaurant in

3 California that was designed or constructed by, or is owned, operated, leased by, or leased to,

4 Defendant.

5

21. The class identified in paragraph 20 is believed to consist of well over 1,000

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

7 members in this lawsuit is impracticable.

8

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

9 without limitation, the following:

10

a. Whether Taco Bell restaurants in California are “public

11

accommodations” under the ADA;

12

b. Whether Taco Bell restaurants in California are “business

13

establishments” under the Unruh Act;

14

c. Whether Taco Bell restaurants in California deny the full and equal

15

enjoyment of their goods, services, facilities, privileges, advantages, or

16

accommodations to people who use wheelchairs in violation of the

17

ADA;

18

d. Whether Taco Bell restaurants in California deny full and equal

19

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

20

who use wheelchairs, in violation of the Unruh Act;

21

e. What measures are legally required to bring Taco Bell restaurants in

22

California into compliance with the ADA and The Unruh Act;

23

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

24

Taco Bell restaurants -- violate state or federal law.

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1

23. The claims of Plaintiffs Moeller, Muegge, Yates and Corbett are typical of the

2 claims of the members of the class. They -- like all other members of the class -- use a

3 wheelchair or scooter for mobility and claim Defendant has violated the ADA and the Unruh

4 Act by failing to make its Taco Bell restaurants accessible to people who use wheelchairs.

5

24. Plaintiffs Moeller, Muegge, Yates and Corbett will fairly and adequately protect

6 the interests of the class because they have retained counsel with extensive experience in

7 litigation, including class action litigation. In addition, Plaintiffs’ counsel, Timothy Fox, was

8 class counsel in a Colorado class action under the ADA concerning Taco Bell restaurants.

9 Finally, Plaintiffs Moeller, Muegge, Yates and Corbett have no interests that conflict in any

10 way with those of the class.

11

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

12 because the Defendant’s violations of the ADA and the Unruh Act are applicable to all

13 members of the class. Therefore, an injunction requiring compliance with the ADA and the

14 Unruh Act is appropriate and the primary relief sought is injunctive relief.

15

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

16 because the many questions of law and fact which are common to class members clearly

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

18 law and fact relate to issues central to the case, such as whether Taco Bell restaurants in

19 California are public accommodations and business establishments, whether removing or

20 widening the narrow queue lines, lowering counters and otherwise complying with the ADA in

21 stores built prior to the effective date of the ADA is readily achievable for the Defendant, and

22 whether Defendant has violated the Unruh Act.

23

27. A class action is superior to other available methods for the fair and efficient

24 adjudication of this controversy because the damages suffered by individual class members are

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 relatively small and because the burden upon such individual litigants may make it difficult

2 and impractical for them to pursue their claims against Defendant.

3

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

4 in that it is likely to avoid the burden which would be otherwise placed upon the judicial

5 system by the filing of numerous similar suits by disabled people in the region. There are no

6 obstacles to effective and efficient management of this lawsuit as a class action by this Court.

7

STATEMENT OF FACTS

8

29. Within the twelve months prior to the filing of this Complaint, Ms. Moeller has

9 attempted to patronize the Taco Bell restaurant located at 1416 Farmers Lane in Santa Rosa,

10 California.

11

30. On information and belief, this Taco Bell restaurant is owned and/or operated

12 by TBC.

13

31. At the Farmers Lane Taco Bell restaurant, Ms. Moeller encountered barriers to

14 access, including without limitation a “queue line” (a series of fixed barriers designed to cause

15 patrons to form a single line) that was too narrow for her scooter to navigate, inaccessible soda

16 machines, and condiments that were inaccessible to her.

17

32. Ms. Moeller has experienced discrimination at other Taco Bell restaurants in the

18 state of California.

19

33. Within the twelve months prior to the filing of this Complaint, Ms. Corbett has

20 attempted to patronize the Taco Bell restaurant located on San Pablo Dam Road in Richmond,

21 California.

22

34. On information and belief, this Taco Bell restaurant is owned and/or operated

23 by TBC.

24

35. At the Richmond Taco Bell restaurant, Ms. Corbett encountered barriers to

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 access, including without limitation a queue line that was too narrow for her wheelchair to

2 navigate and inaccessible parking.

3

36. Ms. Corbett has experienced discrimination at other Taco Bell restaurants in the

4 state of California.

5

37. Within the twelve months prior to the filing of this Complaint, Mr. Muegge has

6 attempted to patronize Taco Bell restaurants located at 1416 Farmers Lane and 2000 Santa

7 Rosa Avenue in Santa Rosa, California, as well as the Taco Bell restaurants located at 5000

8 Redwood Drive and 1700 East Cotati Avenue in Rohnert Park, California.

9

38. On information and belief, these Taco Bell restaurants are owned and/or

10 operated by TBC.

11

39. At each of these restaurants, Mr. Muegge encountered one or more of the

12 following accessibility barriers: inaccessible queue lines, inaccessible parking areas, and

13 inaccessible seating areas.

14

40. Mr. Muegge has experienced discrimination at other Taco Bell restaurants in

15 the state of California.

16

41. Within the twelve months prior to the filing of this Complaint, Mr. Yates has

17 attempted to patronize the Taco Bell restaurant located at 180 Rowland Way in Novato,

18 California.

19

42. On information and belief, this Taco Bell restaurant is owned and/or operated

20 by TBC.

21

43. At the Novato Taco Bell restaurant, Mr. Yates encountered barriers to access,

22 including without limitation a queue line that was too narrow for his wheelchair to navigate.

23

44. Mr. Yates has experienced discrimination at other Taco Bell restaurants in the

24 state of California.

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1

45. On information and belief, numerous other California Taco Bell restaurants that

2 were designed or constructed by, or that are owned, operated, or leased by, or leased to,

3 Defendant are in violation of the ADA and the Unruh Act.

4

46. On information and belief, Taco Bell restaurants are built according to one of a

5 limited number of design prototypes. As such, on information and belief, the discriminatory

6 design features encountered by Plaintiffs recur in Taco Bell restaurants throughout California.

7

47. On information and belief, since January 26, 1992, some or all of the Taco Bell

8 restaurants in California have undergone alterations that affected, or could have affected, the

9 usability of part or all of those restaurants.

10

48. All four Plaintiffs have patronized Taco Bell restaurants in California in the past

11 and intend to continue to patronize those restaurants in the future.

12

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

13

49. Plaintiffs reallege and incorporate by reference the remainder of the allegations

14

set forth in this Complaint as if fully set forth herein.

15

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

16

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

17

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

18

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

19 51. Defendant owns, operates, leases and/or leases to Taco Bell restaurants in

20 California.

21

52. Defendant’s Taco Bell restaurants are places of public accommodation. 42

22

U.S.C. § 12181(7)(B).

23

53. Defendants have discriminated against Plaintiffs and members of the proposed

24

class on the basis of disability. Defendants’ discriminatory conduct includes but is not limited

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 to:

2

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

3

privileges, advantages, accommodations, and/or opportunities;

4

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

5

accommodations that are not equal to those afforded non-disabled

6

individuals;

7

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

8

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

9

privileges, advantages, and/or accommodations of the Sundowner to

10

individuals with disabilities;

11

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

12

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

13

by individuals with disabilities;

14

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

15

extent feasible, the altered portions of the restaurants are readily

16

accessible to and usable by individuals with disabilities, including

17

individuals who use wheelchairs;

18

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

19

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

20

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

21

accessible to and usable by individuals with disabilities; and/or

22

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

23

be readily achievable to do so.

24

54. As such, Defendants discriminate and, in the absence of the injunction

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 requested herein, will continue in the future to discriminate against Plaintiffs and members of

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

3 services, facilities, privileges, advantages, accommodations and/or opportunities of Taco Bell

4 restaurants in California in violation of Title III of the Americans with Disabilities Act, 42

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

6

55. Defendant’s violations of the ADA have harmed and will continue to harm

7 Plaintiffs and members of the proposed class in the future.

8

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

9 Plaintiffs pray for judgment as set forth below.

10

SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act) 11

57. Plaintiffs reallege and incorporate by reference the remainder of the allegations

12

set forth in this Complaint as if fully set forth herein.

13

58. Defendant operates business establishments within the jurisdiction of the State

14

of California and, as such, is obligated to comply with the provisions of the Unruh Act, Cal.

15

Civ. Code, § 51, et seq. (“the Unruh Act”).

16

59. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code,

17

§ 51, et seq.

18

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

19 to 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. The

21

Unruh Act also provides that a violation of the ADA is a violation of the Unruh Act.

22

61. Defendant has violated the Unruh Act by, inter alia, denying Plaintiffs and

23

members of the proposed class, as persons with disabilities, full and equal accommodations,

24

advantages, facilities, privileges, or services offered by Defendant. Defendant has also

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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1 violated the Unruh Act by violating the ADA, as set forth above.

2

62. Defendant has violated the Unruh Act by, inter alia, failing to operate its

3 services on a nondiscriminatory basis and failing to ensure that persons with disabilities have

4 nondiscriminatory access to its restaurants.

5

63. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code

6 § 52, Plaintiffs pray for judgment as set forth below.

7

64. In doing the acts and/or omissions alleged herein, Defendant wrongfully and

8 unlawfully denied access to its restaurants and their facilities to individuals with disabilities

9 and acted with knowledge of the effect its conduct was having on physically disabled persons.

10

RELIEF

11

WHEREFORE, Plaintiffs respectfully request:

12

1. That this Court assume jurisdiction.

13

2. That this Court certify the class identified in paragraph 20;

14

3. That this Court certify Plaintiffs Moeller, Corbett, Muegge and Yates as

15 representatives of this class.

16

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

17 Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. and the Unruh Civil Rights Act,

18 Cal. Civ. Code § 51, et seq.

19

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

20 statutes set forth herein.

21

6. That this Court award actual, compensatory, and/or statutory damages to

22 Plaintiffs and members of the proposed class for violations of their civil rights under state and

23 federal law.

24

7. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs pursuant

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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to federal and California law.

8. That this Court award such additional or alternative relief as may be just, proper
1 and equitable.
2 DEMAND FOR JURY TRIAL
3 Plaintiffs demand a jury on all issues which can be heard by a jury.
4

5 Respectfully submitted,
6 FOX & ROBERTSON, P.C.
7

8

9
10
11
12 December 16, 2002
13

By: ________________________ Timothy P. Fox 910 - 16th Street Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

Class Action Complaint
26 Demand for Jury Trial

Moeller v. Taco Bell Corp.

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 Case 3:02-cv-05849-PJH Document 17 Filed 02/20/2003 Page 1 of 5

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10 FRANCIE E. MOELLER et al,
11

12

Plaintiffs,

13 v.

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S SECOND DEFENSE

14 TACO BELL CORP.,

15

Defendant.

16

Date: Time:

April 22, 2003 9:30 a.m.

17

18 NOTICE
19 On April 22, 2003, at 9:30 a.m., or as soon thereafter as this motion may be heard,
20 before the Honorable Martin J. Jenkins, Plaintiffs will, and hereby do, move for an order
21 striking Defendant’s Second Defense.
22 This motion is based on this Notice of Motion, and all accompanying attachments
23 hereto.
24

25

26 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Motion to Strike Defendant’s Second Defense

Case 3:02-cv-05849-PJH Document 17 Filed 02/20/2003 Page 2 of 5

1

RELIEF SOUGHT

2

Pursuant to Fed. R. Civ. P. 12(f), Plaintiffs seek an order striking Defendant’s Second

3 Defense.

4

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

5 I. Summary of Argument.

6

Defendant’s Second Defense should be stricken because it has been explicitly rejected

7 by the Ninth Circuit in Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (2000).

8 II. Background.

9

Plaintiffs filed their Class Action Complaint in this case on December 17, 2002. The

10 complaint alleges that Defendant, which owns and operates Taco Bell restaurants in California,

11 has violated the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq., (“ADA”) and the

12 Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq. (“the Unruh Act”) by maintaining

13 architectural barriers in its restaurants that prevent customers who use wheelchairs or scooters

14 from the full, independent and equal enjoyment of Defendant’s goods and services. Defendant

15 filed its Answer to Complaint on February 5, 2003, and the Answer included a number of

16 defenses. Defendant’s Second Defense states:

17

On information and belief, this Court lacks subject matter jurisdiction over Plaintiffs’

18

Complaint because of their failure to exhaust administrative remedies in compliance

19

with 42 U.S.C. § 2000a-3(c) made applicable to the ADA pursuant to 42 U.S.C.

20

§ 12188(a)(1).

21

By letter dated February 14, 2003, undersigned counsel informed Defendant’s counsel

22 that the Ninth Circuit had rejected this defense in Botosan v. Paul McNally Realty, 216 F.3d

23 827, 832 (2000), and requested that Defendant withdraw the defense. See exhibit 1. On

24 February 19, 2003, defense counsel called undersigned counsel and stated that Defendant

25 would not withdraw the defense because the possibility existed that the Supreme Court might,

26 Case No. C 02 5849 MJJ ADR Plaintiffs’ Motion to Strike Defendant’s Second Defense -2-

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1 at some future date, rule that the defense is proper.

2 III. Argument.

3

A motion to strike a defense under Rule 12(f) should be granted when the defense is

4 insufficient as a matter of law. See, e.g., Chiron Corp. v. Abbott Labs., 156 F.R.D. 219, 220

5 (N.D. Cal. 1994) (“‘Although motions to strike a defense are generally disfavored, a Rule 12(f)

6 motion to dismiss a defense is proper when the defense is insufficient as a matter of law.’”

7 (citation omitted)). In this case, Defendant’s Second Defense has been rejected by the Ninth

8 Circuit in Botosan and thus is insufficient as a matter of law and should be stricken.

9

In Botosan, the Ninth Circuit considered the precise argument raised by Defendant in

10 this case -- whether 42 U.S.C. § 12188(a)(1) incorporates the requirements of 42 U.S.C.

11 § 2000a-3(c). Botosan, 216 F.3d at 831-32. Section 12188(a)(1) provides that “[t]he remedies

12 and procedures set forth in section 2000a-3(a) of [Title VII] are the remedies and procedures

13 this subchapter provides to any person who is being subjected to discrimination on the basis of

14 disability....” The Ninth Circuit held that section 12188(a)(1) does not incorporate the

15 requirements of 42 U.S.C. § 2000a-3(c):

16

The plain language of § 12188(a)(1) is clear and unambiguous, and it can be

understood without reference to any other statutory provision. Section

17

12188(a)(1) is devoid of any reference to § 2000a- 3(c). Yet, Congress

explicitly incorporated subsection (a) of § 2000a-3 into § 12188(a)(1). The

18

incorporation of one statutory provision to the exclusion of another must be

presumed intentional under the statutory canon of expressio unius. Surely,

19

“Congress obviously knew how to adopt provisions of Title VII because it

expressly adopted subsection (a) ... [and it is] unlikely that Congress would

20

absentmindedly forget to adopt a provision that appears a mere two paragraphs

below the subsection it adopted.” [Botosan v. Fitzhugh, 13 F. Supp. 2d 1047,

21

1050 (S.D. Cal. 1998); see also Guzman v. Denny’s Inc., 40 F. Supp. 2d 930,

934 (S.D. Ohio 1999).] Even if incorporation of all subsections of § 2000a-3

22

into § 12188(a)(1) did not render the explicit reference to § 2000a-3(a)

superfluous or redundant, the statute’s legislative history, the Code of Federal

23

24

25

26 Case No. C 02 5849 MJJ ADR Plaintiffs’ Motion to Strike Defendant’s Second Defense -3-

Case 3:02-cv-05849-PJH Document 17 Filed 02/20/2003 Page 4 of 5

Regulations, see 28 C.F.R. § 26.501(a), and the Department of Justice’s

Technical Assistance Manual generally support the conclusion that Title III

actions do not require state notification. Thus, we hold that § 12188(a)(1) does

1

not implicitly incorporate § 2000a-3(c).

2 Id. at 832.

3

Defendant’s Second Defense asserts that section 12188(a)(1) incorporates the

4 requirements of 42 U.S.C. § 2000a-3(c). Because the Ninth Circuit rejected this assertion in

5 Botosan, Defendant’s Second Defense is insufficient as a matter of law and should be stricken.

6

CONCLUSION

7

For the reasons set forth above, Plaintiffs respectfully request that their Motion to

8 Strike Defendant’s Second Defense be granted.

9

10

Respectfully submitted,

11

FOX & ROBERTSON, P.C.

12

13

By: /s/ Timothy P. Fox

14

Timothy P. Fox, Cal. Bar No. 157750

910 - 16th Street

15

Suite 610

Denver, CO 80202

16

303.595.9700

17 Dated: February 20, 2003

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26 Case No. C 02 5849 MJJ ADR Plaintiffs’ Motion to Strike Defendant’s Second Defense -4-

Case 3:02-cv-05849-PJH Document 17 Filed 02/20/2003 Page 5 of 5

PROOF OF SERVICE VIA U.S. MAIL

STATE OF COLORADO
1 CITY AND COUNTY OF DENVER
2 I am employed in the City and County of Denver, State of Colorado, am over the age of
3 18, and not a party to the within action; my business address is 910 - 16th Street, Suite 610, Denver, CO 80202. On the date below indicated, I served on the interested parties in this
4 action the within document(s) described as:

5

Plaintiffs’ Motion to Strike Defendant’s Second Defense

6

Declaration of Timothy P. Fox in Support of Plaintiffs’ Motion to Strike

Defendant’s Second Defense

7

Order Granting Plaintiffs’ Motion to Strike Defendant’s Second Defense

8

X (BY MAIL) by placing the true copies thereof enclosed in sealed envelopes, postage

9 prepaid, addressed as noted below:

10

Gregory A. Eurich, Esq.

Jim Goh, Esq.

11

Holland & Hart, LLP

P. O. Box 8749

12

Denver, CO 80201

13

I caused such envelopes to be deposited in the mail at Denver, Colorado 80202. The

envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with our

14 firm’s practice of collection and processing correspondence for mailing. It is deposited with

the U.S. postal service on that same day in the ordinary course of business. I am aware that on

15 motion of party served, service is presumed invalid if postal cancellation date or postage meter

date is more than 1 day after date of deposit for mailing in affidavit.

16

I declare that I am employed in the office of a member of the Bar of this Court at whose

17 direction service was made.

18

I declare under penalty of perjury under the laws of the State of Colorado that the

above is true and correct, and that this declaration was executed on February 20, 2003.

19

20 /s/ Elizabeth Miot Elizabeth Miot
21

22

23

24

25

26 Case No. C 02 5849 MJJ ADR Plaintiffs’ Motion to Strike Defendant’s Second Defense -5-

 
 Case 3:02-cv-05849-PJH Document 22 Filed 04/07/2003 Page 1 of 6

1
Jamerson C. Allen (State Bar No. 132866) 2 JACKSON LEWIS LLP
199 Fremont St., 10th Floor 3 San Francisco, CA 94105
Telephone: (415) 394-9400 4 Facsimile: (415) 394-9401

5 Gregory A. Eurich, Pro Hac Vice Jim Goh, Pro Hac Vice
6 HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200
7 Denver, Colorado 80202-3200 Telephone: (303) 295-8000
8 Facsimile: (303) 295-8261

9 Attorneys for DEFENDANT Taco Bell Corporation
10
UNITED STATES DISTRICT COURT 11
NORTHERN DISTRICT OF CALIFORNIA 12

13 FRANCIE E. MOELLER, EDWARD MUEGGE, KATHERINE CORBETT and
14 CRAIG THOMAS YATES

15

Plaintiffs,

Case No. C 02 5849 MJJ ADR
RESPONSE TO PLAINTIFF’S MOTION TO STRIKE

16

v.

17 TACO BELL CORPORATION

18

Defendant.

19

20

Defendant Taco Bell Corp. (“Taco Bell”), by its attorneys, hereby responds to Plaintiffs’

21 Motion to Strike Taco Bell’s Second Defense (“Motion to Strike”), and states as follows: 22

23

24

25

26

27

28

1

RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE

C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 22 Filed 04/07/2003 Page 2 of 6

1

INTRODUCTION

2

In its Answer, Taco Bell pleaded as its Second Defense that this Court lacks subject

3 matter jurisdiction over Plaintiffs’ Complaint because Plaintiffs failed to exhaust their
4 administrative remedies in compliance with the Americans with Disabilities Act, 42 U.S.C.
5
§12181, et. seq. (“ADA”). Plaintiffs have moved to strike this defense based on Botosan v. Paul 6
7 McNally Realty, 216 F. 3d 827, 830 (9th Cir. 2000). Because Plaintiffs are not prejudiced in any

8 way by allowing Taco Bell to continue to preserve this defense and further rulings from the 9th

9 Circuit and elsewhere may provide support for the exhaustion requirement, the Court should deny
10 Plaintiffs’ Motion to Strike. 11
ARGUMENT 12
Motions to strike affirmative defenses are disfavored. Before a motion to strike a defense 13 14 may be granted, “the Court must be convinced that there are no questions of fact, that any
15 questions of law are clear and not in dispute, and that under no set of circumstances could the

16 defenses succeed. [Citations omitted.] Moreover, a motion to strike defenses should not be

17 employed as a vehicle for determining ‘disputed and substantial questions of law.’” Levin-
18 Richmond Terminal Corp. v. International Longshoremen’s & Warehousemen’s Union, Local 10, 19
751 F. Supp. 1373, 1375 (N.D. Cal. 1990). 20
At issue is whether Plaintiffs are required, at least 30 days prior to filing a private lawsuit 21
22 under Title III of the ADA, to notify the state or local agency charged with enforcing the

23 applicable state civil rights laws pursuant to 42 U.S.C. § 2000a-3(c). There is a clear division of

24 authority on this issue. In addition to a panel of the 9th Circuit in Botosan, supra, several other

25 courts have not required exhaustion of administrative remedies as a condition precedent to filing a

26 ADA action, including Iverson v. Comsage, Inc., 132 F. Supp. 2d 52 (D. Mass. 2001); Guzman v.

27
Denny’s, Inc., 40 F. Supp. 2d 930, 934 (S.D. Ohio 1999); Lewis v. Aetna Life Insurance Co., 993 28

2

RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE

Case No. C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 22 Filed 04/07/2003 Page 3 of 6

1 F. Supp. 382, 387 (E.D. Va. 1998); Doukas v. Metropolitan Life Ins. Co., 1997 U.S. Dist. LEXIS

2 21757, No. CIV. 4-478- SD, 1997 WL 833134 (D.N.H. Oct. 21, 1997) and Bercovitch v. Baldwin
3 Sch., 964 F. Supp. 597, 604 (D. Puerto Rico 1997).
4 However, a number of other courts, including decisions in this Circuit predating Botosan,
5 have required that ADA plaintiffs exhaust their administrative remedies before filing a federal
6
7 court action. See, e.g., Burkhart v. Asean Shopping Center, Inc., 55 F. Supp. 2d 1013 (D. Ariz.

8 1999); Snyder v. San Diego Flowers, 21 F. Supp. 2d 1207, 1210 (S.D. Cal. 1998); Mayes v.

9 Allison, 983 F. Supp. 923, 925 (D. Nev. 1997); Daigle v. Friendly Ice Cream Corp., 957 F. Supp.

10 8, 9 (D. N.H. 1997); Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148, 1149 (D. Colo.

11 1996); Grubbs v. Medical Facilities of Am., Inc., 1994 U.S. Dist. LEXIS 15511, 1994 WL

12

791708 (W.D. Va. 1994). 13

14

Taco Bell acknowledges that the controlling authority in the 9th Circuit at the present time

15 is the panel decision in Botosan, supra. However, it cannot be said that “under no circumstances

16 could [Taco Bell’s] defense[] succeed.” Levin-Richmond Terminal Corp., supra. The issue of

17 statutory construction upon which Taco Bell’s defense rests continues to be a matter of dispute in

18 the courts. As a result, there is every reason to expect that another panel of the 9th Circuit may

19 disagree with Botosan or that it may be reversed by an en banc decision of the circuit and/or by
20

the U.S. Supreme Court. 21

22

Indeed, as no doubt occurs in many circuit courts of appeals, panel decisions of the 9th

23 Circuit have often been the subject of later contrary rulings within the circuit by other panels or

24 en banc decisions. The following is a sampling of recent occasions in which the Ninth Circuit

25 overruled a prior holding:

26 • Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (overruling

27

Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991));

28

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RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE

Case No. C 02 5849 MJJ ADR

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1

• United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc) (overruling United

States v. Nordby, 225 F.3d 1053, 1061 n. 6 (9th Cir. 2000)); 2

3

• In re Watts v. Watts, 298 F.3d 1077, 1083 (9th Cir. 2002) (overruling Jones v. Heskett,

106 F.3d 923 (9th Cir. 1997));

4

• United States v. Ruiz, 257 F.3d 1030, 1032 (9th Cir. 2001) (en banc) (overruling United

5

States v. Ramos, 923 F.2d 1346, 1357-58 (9th Cir. 1991));

6

• United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) (overruling

7

United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999), United States v. EstradaTorres, 170 F.3d 776 (9th Cir. 1999), and United States v. Lomas, 30 F.3d 1191 (9th Cir.

8

1994));

9

• Ticknor v. Choice Hotels International, Inc., 265 F.3d 931, 941-42 (9th Cir. 2001)

(overruling Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 285 (9th Cir. 1988) and

10

Bayma v. Smith Barney, Harris Upham and Co., 784 F.2d 1023 (9th Cir. 1986));

11

• Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Insurance Program, 222 F.3d

12

643, 645 (9th Cir. 1986) (en banc) (overruling Williams v. UNUM Life Insurance Co., 113

F.3d 1108 (9th Cir. 1997) and Nikaido v. Centennial Life Insurance Co., 42 F.3d 557 (9th

13

Cir. 1994));

14

• Hodgers-Durgin v. de La Vina, 199 F.3d 1037, 1041 (9th Cir. 1999) (en banc) (overruling

Nava v. City of Dublin, 121 F.3d 453 (9th Cir. 1997)); 15

16

• Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998) (en banc) (overruling Arreola v.

Mangaong, 65 F.3d 801 (9th Cir. 1995))

17 • United States v. Nishimura, 131 F.3d 1325, 1329 (9th Cir. 1997) (en banc) (overruling

18

United States v. Abrahams, 905 F.2d 1276 (9th Cir. 1990), United States v. Zolin, 809

F.2d 1411 (9th Cir. 1987), and United States v. Author Services, 804 F.2d 1520 (9th Cir.

19

1986));

20

• WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (overruling

21

McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992));

22

• Fisher v. Immigration and Naturalization Service, 79 F.3d 955, 963 (9th Cir. 1997) (en

banc) (overruling Ubau-Marenco v. INS, 67 F.3d 750, 759 (9th Cir. 1995), Nasseri v.

23

Moschorak, 34 F.3d 723, 727 (9th Cir. 1994), Shirazi-Parsa v. INS, 14 F.3d 1424, 1428

24

(9th Cir. 1994), and Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987));

25

• In re Catli v. Catli, 999 F.2d 1405, 1408 (9th Cir. 1993) (overruling In re Pederson, 875

F.2d 781, 782 (9th Cir. 1989));

26

• United States v. Fine, 975 F.2d 596, 597 (9th Cir. 1992) (en banc) (reconsidering and

27

overruling United States v. Fine, 946 F.2d 650 (9th Cir. 1991));

28

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MOTION TO STRIKE

Case No. C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 22 Filed 04/07/2003 Page 5 of 6

1

• United States v. Hardesty, 977 F.2d 1347, 1349 (9th Cir. 1992) (en banc) (overruling

United States v. Terrovona, 785 F.2d 767 (9th Cir. 1986)); 2

3

• White v. McGinnis, 903 F.2d 699, 700 (9th Cir. 1990) (en banc) (overruling Palmer v.

United States, 652 F.2d 893 (9th Cir. 1981));

4

• Townsend v. Holman Consulting Corporation, 929 F.2d 1358, (9th Cir. 1990) (en banc)

5

(overruling Murphy v. Business Cards Tomorrow, Inc., 854 F.2d 1202, 1205 (9th Cir.

1988)). 6

7

As Taco Bell pointed out to Plaintiffs’ counsel when asked to withdraw the

8 defense at issue here, allowing preservation of this defense so as to protect Taco Bell in

9 the event of such a change in the law does not prejudice Plaintiffs in any way. Clearly

10 Taco Bell would not ask this Court to dismiss Plaintiffs’ case for failure to exhaust
11 administrative remedies unless new authority supported such an argument; nor would the 12
court grant such a motion at this time. But there is no reason to strike the defense and 13
deny the opportunity of Taco Bell to preserve the issue since subsequent legal 14
15 developments may support Taco Bell’s reading of the ADA provisions in question.

16

CONCLUSION

17

Because Taco Bell has demonstrated that there are circumstances under which its defense

18 of exhaustion of administrative remedies “could succeed,” Plaintiffs’ Motion to Strike

19 Defendant’s Second Defense should be denied.
20

21

Dated this 7th day of April, 2003.

22

23

RESPECTFULLY SUBMITTED,

24

JACKSON LEWIS LLP

25 /S/

26

BY: Jamerson C. Allen

27

Attorneys for Defendant

28

TACO BELL CORP.

5

RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE

Case No. C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 22 Filed 04/07/2003 Page 6 of 6

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

6

RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE

Case No. C 02 5849 MJJ ADR

 
 Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 1 of 14

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 FRANCIE E. MOELLER,

)

)

11 EDWARD MUEGGE,

)

)

12 KATHERINE CORBETT,

)

)

13 and

)

)

14 CRAIG THOMAS YATES

)

)

15

Plaintiffs,

)

)

16 v.

)

)

17 TACO BELL CORP.,

)

)

18

Defendant.

)

Case No. C 02 5849 MJJ ADR
FIRST AMENDED CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

19

Plaintiffs Francie Moeller, Edward Muegge, Katherine Corbett and Craig Thomas

20 Yates, by and through their attorneys Fox & Robertson, P.C., hereby submit their First

21 Amended Class Action Complaint for violations of Title III of the Americans with Disabilities

22 Act, 42 U.S.C. § 12181, et seq., (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code, § 51, et

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

24 (the “CDPA”).

25

26 Case No. C 02 5849 MJJ ADR
First Amended Class Action Complaint

Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 2 of 14

1

INTRODUCTION

2

1. Over twelve years after Congress passed one of our nation’s landmark civil

3 rights law for people with disabilities, Defendant’s restaurants in California still maintain

4 barriers that prevent customers who use wheelchairs or scooters from the full, independent and

5 equal enjoyment of Defendant’s goods and services.

6

2. Defendant has been and is in violation of federal and state disability civil rights

7 laws, in that it has failed to comply with federal and state nondiscrimination statutes.

8

3. Defendant has discriminated and continues to discriminate against Plaintiffs in

9 many ways, including but not limited to failing to ensure that its restaurants are accessible to

10 individuals with mobility impairments who require wheelchairs or scooters for mobility.

11

JURISDICTION AND VENUE

12

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

13 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims brought

14 under the laws of the State of California. The Court may grant declaratory and other relief

15 pursuant to 28 U.S.C. §§ 2201 and 2202. Money damages alone are inadequate, and Plaintiffs

16 have been suffering and will continue to suffer irreparable injury.

17

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

18

INTRADISTRICT ASSIGNMENT

19

6. This action arises in the county of Sonoma, Contra Costa and/or Marin and thus

20 should be assigned to the San Francisco or Oakland Division.

21

PARTIES

22

7. Plaintiff Francie E. Moeller is and has been at all times material hereto a

23 resident of the State of California.

24

8. Ms. Moeller has a degenerative disc, spondothesis, fibromyalgia, and functional

25 thoracic outlet syndrome, which affect her muscles and tissue. Ms. Moeller has physical

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

-2-

Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 3 of 14

1 impairments that substantially limit several major life activities, including but not limited to

2 walking. She has a record of physical impairments that substantially limit several major life

3 activities and is regarded as having physical impairments that substantially limit several major

4 life activities. Ms. Moeller uses a scooter for her primary means of mobility outside of her

5 home and has a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

6

9. Ms. Moeller has a physical disability and/or medical condition as those terms

7 are defined in applicable California law, including Cal. Gov’t Code § 12926.

8

10. Plaintiff Katherine J. Corbett is and has been at all times material hereto a

9 resident of the State of California.

10

11. Ms. Corbett has post polio syndrome. Ms. Corbett has physical impairments

11 that substantially limit several major life activities, including but not limited to walking. She

12 has a record of physical impairments that substantially limit several major life activities and is

13 regarded as having physical impairments that substantially limit several major life activities.

14 Ms. Corbett uses a power wheelchair for her primary means of mobility outside of her home

15 and has a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

16

12. Ms. Corbett has a physical disability and/or medical condition as those terms

17 are defined in applicable California law, including Cal. Gov’t Code § 12926.

18

13. Plaintiff Edward Muegge is and has been at all times material hereto a resident

19 of the State of California.

20

14. As a result of a spinal cord injury, Mr. Muegge has physical impairments that

21 substantially limit several major life activities, including but not limited to walking. He has a

22 record of physical impairments that substantially limit several major life activities and is

23 regarded as having physical impairments that substantially limit several major life activities.

24 Mr. Muegge uses a power scooter for his primary means of mobility and has a disability within

25 the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 4 of 14

1

15. Mr. Muegge has a physical disability and/or medical condition as those terms

2 are defined in applicable California law, including Cal. Gov’t Code § 12926.

3

16. Plaintiff Craig Thomas Yates is and has been at all times material hereto a

4 resident of the State of California.

5

17. As a result of a spinal cord injury, Mr. Yates has physical impairments that

6 substantially limit several major life activities, including but not limited to walking. He has a

7 record of physical impairments that substantially limit several major life activities and is

8 regarded as having physical impairments that substantially limit several major life activities.

9 Mr. Yates uses a power wheelchair for his primary means of mobility and has a disability

10 within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

11

18. Mr. Yates has a physical disability and/or medical condition as those terms are

12 defined in applicable California law, including Cal. Gov’t Code § 12926.

13

19. Defendant Taco Bell Corp. (“TBC”) is a corporation incorporated under the

14 laws of California, with its principal place of business at 17901 Von Karman, Irvine, CA

15 92614. TBC owns, operates, leases and/or leases to Taco Bell restaurants in California,

16 including combination restaurants in which Taco Bell products and products of other

17 restaurants (for example, Kentucky Fried Chicken) are sold.

18

CLASS ACTION ALLEGATIONS

19

20. Plaintiffs Moeller, Muegge, Yates and Corbett seek to maintain this action as a

20 class action under Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

21 The class consists of all individuals with disabilities who use wheelchairs or electric scooters

22 for mobility who, during a time period to be determined by this Court, were denied, or are

23 currently being denied, on the basis of disability, full and equal enjoyment of the goods,

24 services, facilities, privileges, advantages, or accommodations of any Taco Bell restaurant in

25 California that was designed or constructed by, or is owned, operated, leased by, or leased to,

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 5 of 14

1 Defendant.

2

21. The class identified in paragraph 20 is believed to consist of well over 1,000

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

4 members in this lawsuit is impracticable.

5

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

6 without limitation, the following:

7

a. Whether Taco Bell restaurants in California are “public

8

accommodations” under the ADA;

9

b. Whether Taco Bell restaurants in California are “business

10

establishments” under the Unruh Act;

11

c. Whether Taco Bell restaurants in California are “places of public

12

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

13

the CDPA;

14

d. Whether Taco Bell restaurants in California deny the full and equal

15

enjoyment of their goods, services, facilities, privileges, advantages, or

16

accommodations to people who use wheelchairs in violation of the

17

ADA;

18

e. Whether Taco Bell restaurants in California deny full and equal

19

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

20

who use wheelchairs, in violation of the Unruh Act;

21

f. Whether Taco Bell restaurants in California deny full and equal access

22

to accommodations, advantages and facilities to people who use

23

wheelchairs, in violation of the CDPA;

24

g. What measures are legally required to bring Taco Bell restaurants in

25

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

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 6 of 14

1

CDPA;

2

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

3

Taco Bell restaurants -- violate state or federal law.

4

23. The claims of Plaintiffs Moeller, Muegge, Yates and Corbett are typical of the

5 claims of the members of the class. They -- like all other members of the class -- use a

6 wheelchair or scooter for mobility and claim Defendant has violated the ADA, the Unruh Act

7 and the CDPA by failing to make its Taco Bell restaurants accessible to people who use

8 wheelchairs.

9

24. Plaintiffs Moeller, Muegge, Yates and Corbett will fairly and adequately protect

10 the interests of the class because they have retained counsel with extensive experience in

11 litigation, including class action litigation. In addition, Plaintiffs’ counsel, Timothy Fox, was

12 class counsel in a Colorado class action under the ADA concerning Taco Bell restaurants.

13 Finally, Plaintiffs Moeller, Muegge, Yates and Corbett have no interests that conflict in any

14 way with those of the class.

15

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

16 because the Defendant’s violations of the ADA, the Unruh Act and the CDPA are applicable to

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

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

19

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

20 because the many questions of law and fact which are common to class members clearly

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

22 law and fact relate to issues central to the case, such as whether Taco Bell restaurants in

23 California are public accommodations and business establishments, whether removing or

24 widening the narrow queue lines, lowering counters and otherwise complying with the ADA in

25 stores built prior to the effective date of the ADA is readily achievable for the Defendant, and

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 7 of 14

1 whether Defendant has violated the Unruh Act and the CDPA.

2

27. A class action is superior to other available methods for the fair and efficient

3 adjudication of this controversy because the damages suffered by individual class members are

4 relatively small and because the burden upon such individual litigants may make it difficult

5 and impractical for them to pursue their claims against Defendant.

6

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

7 in that it is likely to avoid the burden which would be otherwise placed upon the judicial

8 system by the filing of numerous similar suits by disabled people in the region. There are no

9 obstacles to effective and efficient management of this lawsuit as a class action by this Court.

10

STATEMENT OF FACTS

11

29. Within the twelve months prior to the filing of this Complaint, Ms. Moeller has

12 attempted to patronize the Taco Bell restaurant located at 1416 Farmers Lane in Santa Rosa,

13 California.

14

30. On information and belief, this Taco Bell restaurant is owned and/or operated

15 by TBC.

16

31. At the Farmers Lane Taco Bell restaurant, Ms. Moeller encountered barriers to

17 access, including without limitation a “queue line” (a series of fixed barriers designed to cause

18 patrons to form a single line) that was too narrow for her scooter to navigate, inaccessible soda

19 machines, and condiments that were inaccessible to her.

20

32. Ms. Moeller has experienced discrimination at other Taco Bell restaurants in the

21 state of California.

22

33. Within the twelve months prior to the filing of this Complaint, Ms. Corbett has

23 attempted to patronize the Taco Bell restaurant located on San Pablo Dam Road in Richmond,

24 California.

25

34. On information and belief, this Taco Bell restaurant is owned and/or operated

26 Case No. C 02 5849 MJJ ADR

First Amended Class Action Complaint

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 8 of 14

1 by TBC.

2

35. At the Richmond Taco Bell restaurant, Ms. Corbett encountered barriers to

3 access, including without limitation a queue line that was too narrow for her wheelchair to

4 navigate and inaccessible parking.

5

36. Ms. Corbett has experienced discrimination at other Taco Bell restaurants in the

6 state of California.

7

37. Within the twelve months prior to the filing of this Complaint, Mr. Muegge has

8 attempted to patronize Taco Bell restaurants located at 1416 Farmers Lane and 2000 Santa

9 Rosa Avenue in Santa Rosa, California, as well as the Taco Bell restaurants located at 5000

10 Redwood Drive and 1700 East Cotati Avenue in Rohnert Park, California.

11

38. On information and belief, these Taco Bell restaurants are owned and/or

12 operated by TBC.

13

39. At each of these restaurants, Mr. Muegge encountered one or more of the

14 following accessibility barriers: inaccessible queue lines, inaccessible parking areas, and

15 inaccessible seating areas.

16

40. Mr. Muegge has experienced discrimination at other Taco Bell restaurants in

17 the state of California.

18

41. Within the twelve months prior to the filing of this Complaint, Mr. Yates has

19 attempted to patronize the Taco Bell restaurant located at 180 Rowland Way in Novato,

20 California.

21

42. On information and belief, this Taco Bell restaurant is owned and/or operated

22 by TBC.

23

43. At the Novato Taco Bell restaurant, Mr. Yates encountered barriers to access,

24 including without limitation a queue line that was too narrow for his wheelchair to navigate.

25

44. Mr. Yates has experienced discrimination at other Taco Bell restaurants in the

26 Case No. C 02 5849 MJJ ADR

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1 state of California.

2

45. On information and belief, numerous other California Taco Bell restaurants that

3 were designed or constructed by, or that are owned, operated, or leased by, or leased to,

4 Defendant are in violation of the ADA, the Unruh Act and the CDPA.

5

46. On information and belief, Taco Bell restaurants are built according to one of a

6 limited number of design prototypes. As such, on information and belief, the discriminatory

7 design features encountered by Plaintiffs recur in Taco Bell restaurants throughout California.

8

47. On information and belief, since January 26, 1992, some or all of the Taco Bell

9 restaurants in California have undergone alterations, as that term is used in the ADA, that

10 affected, or could have affected, the usability of part or all of those restaurants.

11

48. On information and belief, since July 1, 1970, some or all of the Taco Bell

12 restaurants in California have undergone alterations, structural repairs and/or additions, as

13 those terms are used in California law, including without limitation Cal. Health & Safety Code

14 § 19959.

15

49. All four Plaintiffs have patronized Taco Bell restaurants in California in the past

16 and intend to continue to patronize those restaurants in the future.

17

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

18

50. Plaintiffs reallege and incorporate by reference the remainder of the allegations

19

set forth in this Complaint as if fully set forth herein.

20

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

21

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

22

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

23

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

24

52. Defendant owns, operates, leases and/or leases to Taco Bell restaurants in

25

26 Case No. C 02 5849 MJJ ADR

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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 10 of 14

1 California.

2

53. Defendant’s Taco Bell restaurants are places of public accommodation. 42

3 U.S.C. § 12181(7)(B).

4

54. Defendants have discriminated against Plaintiffs and members of the proposed

5 class on the basis of disability. Defendants’ discriminatory conduct includes but is not limited

6 to:

7

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

8

privileges, advantages, accommodations, and/or opportunities;

9

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

10

accommodations that are not equal to those afforded non-disabled

11

individuals;

12

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

13

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

14

privileges, advantages, and/or accommodations of the Sundowner to

15

individuals with disabilities;

16

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

17

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

18

by individuals with disabilities;

19

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

20

extent feasible, the altered portions of the restaurants are readily

21

accessible to and usable by individuals with disabilities, including

22

individuals who use wheelchairs;

23

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

24

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

25

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

26 Case No. C 02 5849 MJJ ADR
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1

accessible to and usable by individuals with disabilities; and/or

2

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

3

be readily achievable to do so.

4

55. As such, Defendants discriminate and, in the absence of the injunction

5 requested herein, will continue in the future to discriminate against Plaintiffs and members of

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

7 services, facilities, privileges, advantages, accommodations and/or opportunities of Taco Bell

8 restaurants in California in violation of Title III of the Americans with Disabilities Act, 42

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

10

56. Defendant’s violations of the ADA have harmed and will continue to harm

11 Plaintiffs and members of the proposed class in the future.

12

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

13 Plaintiffs pray for judgment as set forth below.

14

SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act)

15

58. Plaintiffs reallege and incorporate by reference the remainder of the allegations

16

set forth in this Complaint as if fully set forth herein.

17

59. Defendant operates business establishments within the jurisdiction of the State

18

of California and, as such, is obligated to comply with the provisions of the Unruh Act, Cal.

19

Civ. Code, § 51, et seq. (“the Unruh Act”).

20

60. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code,

21

§ 51, et seq.

22

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

23

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

24

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

25

26 Case No. C 02 5849 MJJ ADR
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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 12 of 14

1 Unruh Act also provides that a violation of the ADA is a violation of the Unruh Act.

2

62. Defendant has violated the Unruh Act by, inter alia, denying Plaintiffs and

3 members of the proposed class, as persons with disabilities, full and equal accommodations,

4 advantages, facilities, privileges, or services offered by Defendant. Defendant has also

5 violated the Unruh Act by violating the ADA, as set forth above.

6

63. Defendant has violated the Unruh Act by, inter alia, failing to operate its

7 services on a nondiscriminatory basis and failing to ensure that persons with disabilities have

8 nondiscriminatory access to its restaurants.

9

64. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code

10 § 52, Plaintiffs pray for judgment as set forth below.

11

65. In doing the acts and/or omissions alleged herein, Defendant wrongfully and

12 unlawfully denied access to its restaurants and their facilities to individuals with disabilities

13 and acted with knowledge of the effect its conduct was having on physically disabled persons.

14

THIRD CLAIM FOR RELIEF

(California Disabled Persons Act)

15

66. Plaintiffs reallege and incorporate by reference the remainder of the allegations

16

set forth in this Complaint as if fully set forth herein.

17

67. Defendant operates, within the jurisdiction of the State of California, places of

18

public accommodation and/or places to which the general public is invited and, as such, is

19

obligated to comply with the provisions of the CDPA, Cal. Civ. Code, § 54, et seq.

20

68. The conduct alleged herein violates the CDPA, including without limitation

21

Cal. Civ. Code, § 54.1, et seq. and relevant provisions of California building code regulations.

22

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

23

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

24

facilities, and privileges of covered entities.

25

26 Case No. C 02 5849 MJJ ADR
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Case 3:02-cv-05849-PJH Document 36 Filed 08/04/2003 Page 13 of 14

1

70. Defendant has violated the CDPA by, inter alia, denying Plaintiffs and members

2 of the proposed class, as persons with disabilities, full and equal access, as other members of

3 the general public, to accommodations, advantages, facilities offered by Defendant.

4

71. Defendant has violated the CDPA by, inter alia, failing to operate its services on

5 a nondiscriminatory basis and failing to ensure that persons with disabilities have

6 nondiscriminatory access to its restaurants.

7

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

8 including Cal. Civ. Code §§ 54.3 and 55, Plaintiffs pray for judgment as set forth below.

9

73. In doing the acts and/or omissions alleged herein, Defendant wrongfully and

10 unlawfully denied access to its restaurants and their facilities to individuals with disabilities

11 and acted with knowledge of the effect its conduct was having on physically disabled persons.

12

RELIEF

13

WHEREFORE, Plaintiffs respectfully request:

14

1. That this Court assume jurisdiction.

15

2. That this Court certify the class identified in paragraph 20;

16

3. That this Court certify Plaintiffs Moeller, Corbett, Muegge and Yates as

17 representatives of this class.

18

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

19 Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. the Unruh Civil Rights Act, Cal.

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

21

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

22 statutes set forth herein.

23

6. That this Court award actual, compensatory, and/or statutory damages to

24 Plaintiffs and members of the proposed class for violations of their civil rights under state and

25 federal law.

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7. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs pursuant

to federal and California law.
1 8. That this Court award such additional or alternative relief as may be just, proper
2 and equitable.
3 DEMAND FOR JURY TRIAL
4 Plaintiffs demand a jury on all issues which can be heard by a jury.
5

6 Respectfully submitted,
7 FOX & ROBERTSON, P.C.
8

9

10
11
12
13 Dated: August 4, 2003
14

By: /s/ Timothy P. Fox Timothy P. Fox 910 - 16th Street Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26 Case No. C 02 5849 MJJ ADR
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 Case 3:02-cv-05849-PJH Document 40 Filed 09/16/2003 Page 1 of 30

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10 FRANCIE E. MOELLER et al,

11

Plaintiffs,

12 v.

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

13 TACO BELL CORP.,

14

Defendant.

Date: Time:

October 21, 2003 9:30 a.m.

15

16

17

18

19

20

21

22

23

24

25

26

27 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Motion for Class Certification
28

Case 3:02-cv-05849-PJH Document 40 Filed 09/16/2003 Page 2 of 30

1

TABLE OF CONTENTS

2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Relief Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Points and Authorities in Support of Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8

A. Named Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

9

B. Legal Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

1. The Americans with Disabilities Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

11

2. The Unruh Act and CDPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

12

C. The Colorado Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

13

D. Defendant Taco Bell Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14

1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

15

2. Accessibility Problems At Defendant’s California Restaurants. . . . . . . 7

16

a. Inaccessible Queue Lines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

17

b. Inaccessible Entrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18

c. Inaccessible Condiment and Drink Dispensers. . . . . . . . . . . . . 8

19

d. Inaccessible Dining Rooms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

20

e. Inaccessible Restrooms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

21

f. Inaccessible Parking Lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

22

3. Taco Bell’s Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

23 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

24

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

25

B. The Proposed Class Meets the Requirements of Rule 23(a). . . . . . . . . . . . . . 16

26

1. The Proposed Class Is So Numerous That Joinder Is Impracticable. . 16

27 Case No. C 02 5849 MJJ ADR

Plaintiffs’ Motion for Class Certification

28

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1

2. There Are Questions of Law and Fact Common

to the Proposed Class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2

a. Common Architectural Barriers. . . . . . . . . . . . . . . . . . . . . . . . 18

3

b. Common Policies and Practices. . . . . . . . . . . . . . . . . . . . . . . . 18

4

3. Named Plaintiffs’ Claims Are Typical of the Claims of the Class. . . . 21

5

4. Named Plaintiffs Will Fairly and Adequately Protect the

6

Interests of the Class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

7

C. The Proposed Class Is Proper Under Rule 23(b)(2). . . . . . . . . . . . . . . . . . . . . 22

8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 Case No. C 02 5849 MJJ ADR

Plaintiffs’ Motion for Class Certification

28

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1

TABLE OF AUTHORITIES

2

Cases

3 Access Now, Inc. v. AHM CGH, Inc., Case Number: 98-3004 CIV,

2000 U.S. Dist. LEXIS 14788 (S.D. Fla. Jul. 12, 2000) . . . . . . . . . . . . . . . . . . . . . . . 16

4

Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd.,197 F.R.D. 522

5

(S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

6 Access Now, Inc. v. Claire’s Stores, Inc., No. 00-14017-CIV., 2002 WL 1162422

(S.D. Fla. May 7, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

7

Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27 (E.D.N.Y. 2002) . . . . . . . . . . . . . . . . . 16

8

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

9

Anderson v. Department of Pub. Welfare, 1 F. Supp. 2d 456 (E.D. Pa. 1998) . . . . . . . . . . . . 16

10

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001),

11

cert. denied, 537 U.S. 812 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19, 21

12 Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal.) . . . . . . . . . . . . . . 6

13 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) . . . . . passim

14 Association for Disabled Americans v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002) . 16

15 Bacal v. Southeastern Pennsylvania Transportation Authority, Civil Action

No. 94-6497, 1995 WL 299029 (E.D. Pa. May 16, 1995) . . . . . . . . . . . . . . . . . . . . . . 16

16

Bates v. United Parcel Service, 204 F.R.D. 440 (N.D. Cal. 2001) . . . . . . . . . . . . . . . . . passim

17

Berlowitz v. Nob Hill Masonic Management, Inc.,No. C-96-0141 MHP,

18

1996 WL 724776 (N.D. Cal. Dec. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 23, 24

19 Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 5

20 Boulet v. Cellucci, 107 F. Supp. 2d 61 (D. Mass. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

21 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

22 Buchanan v. Consolidated Stores Corp., --- F.R.D. --- , No. CIV.A. DKC 99-3736,

2003 WL 21800960 (D. Md. July 21, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

23

Ceasar v, Pataki, No. 98 CIV.8532 (LMM), 2000 WL 1154318

24

(S.D.N.Y. Aug. 14, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

25 Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
26

27 Case No. C 02 5849 MJJ ADR

Plaintiffs’ Motion for Class Certification

28

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Case 3:02-cv-05849-PJH Document 40 Filed 09/16/2003 Page 5 of 30

1 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354

(D. Colo. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

2

D’Lil v. Stardust Vacation Club, No. CIV-S-00-1496DFL PAN,

3

2001 WL 1825832 (E.D. Cal. Dec. 21, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4 Duprey v. Connecticut Dep’t of Motor Vehicles, 191 F.R.D. 329 (D. Conn. 2000) . . . . . . . . 16

5 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6 Faulk v. Home Oil Co., 184 F.R.D. 645 (M.D. Ala. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

7 Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . . . 16

8 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

9 Henrietta D. v. Giuliani, No. 95-CV-0641, 1996 WL 633382 (E.D.N.Y. Oct. 25, 1996) . . . . 16

10 Jorgensen v. Jack in the Box Restaurants, No. C95-0406 SAW (N.D. Cal. Feb. 28, 1997),

Order Granting Plaintiff’s Motion for Class Certification . . . . . . . . . . . . . . . . . . passim

11

Kathleen S. v. Dep’t. of Pub. Welfare, Civ. Act. No. 97-6610,

12

1998 U.S. Dist. LEXIS 2027 (E.D. Pa. Feb. 25, 1998) . . . . . . . . . . . . . . . . . . . . . . . . 16

13 Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK and CIV. S-93-1622 LKK,

1994 U.S. Dist. LEXIS 21281 (E.D. Cal. June 28, 1994) . . . . . . . . . . . . . . . . . . passim

14

Lightbourn v. County of El Paso, Texas, 118 F.3d 421 (5th Cir. 1997) . . . . . . . . . . . . . . 16, 19

15

Marcus v. Kan., Department of Revenue, 206 F.R.D. 509 (D. Kan. 2002) . . . . . . . . . . . . . . . 16

16

McKay v. County Election Commissioners For Pulaski County, Arkansas,

17

158 F.R.D. 620 (E.D. Ark. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

19 National Organization on Disability v. Tartaglione, No. CIV. A. 01-1923,

2001 WL 1258089 (E.D. Pa. Oct. 22, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

20

Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185 (W.D. Tex. 1998) . . . . . . . . . . . . . . . . . . 16

21

Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

22

People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . 6

23

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

24

Siddiqi v. Regents of the Univ. of Calif., No. C 99-0790 SI,

25

2000 WL 33190435 (N.D. Cal. Sept. 6, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

26 Thrope v. Ohio, 173 F.R.D. 483 (S.D. Ohio 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

27 Case No. C 02 5849 MJJ ADR

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28

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1

Statutes

2 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

3 42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6 42 U.S.C. § 12186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7 Cal. Admin. Code § 2-611(c)(4) (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 6, 21

9 Cal. Civ. Code § 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

10 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

11 Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21

12 Cal Civ. Code § 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

13 Cal. Health & Safety Code § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14 Cal. Health & Safety Code § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15

Regulations and Other Authorities

16 28 C.F.R. § 36.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

17 28 C.F.R. § 36.211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 28 C.F.R. § 36.304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

19 28 C.F.R. § 36.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

20 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

21 Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A . . . . . . . . . . . . . . . . . passim

22 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

23 1 Robert Newberg, Newberg on Class Actions (4th ed. 2002) . . . . . . . . . . . . . . . . . . 16-17, 19

24 3 Robert Newberg, Newberg on Class Actions (4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . . . . 22

25 7A Charles Alan Wright et al., Federal Practice and Procedure § 1775-76 (2d ed. 1986) . . . 23

26 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9 FRANCIE E. MOELLER et al,

10 Plaintiffs,
11 v.
12 TACO BELL CORP.,
13 Defendant.
14

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Date: Time:

October 21, 2003 9:30 a.m.

15

16

NOTICE

17

On October 21, 2003, at 9:30 a.m., or as soon thereafter as this motion may be heard,

18 before the Honorable Martin J. Jenkins, Plaintiffs will, and hereby do, move for an order

19 certifying a class in the above-captioned action. This motion is based on this Notice of

20 Motion, and all accompanying attachments hereto.

21

RELIEF SOUGHT

22

Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs

23 seek an order certifying the following class:

24

All individuals with disabilities who use wheelchairs or electric scooters for mobility

who, during a time period to be determined by this Court, were denied, or are currently

25

being denied, on the basis of disability, full and equal enjoyment of the goods, services,

26

27 Case No. C 02 5849 MJJ ADR
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1

facilities, privileges, advantages, or accommodations of California Taco Bell corporate

restaurants.1

2

3

Plaintiffs further request that the Court appoint the Named Plaintiffs Francie Moeller,

4 Ed Muegge, Katherine Corbett and Craig Yates as class representatives, and the law firm of

5 Fox & Robertson, P.C. as class counsel.

6

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

7

ISSUES TO BE DECIDED

8

Whether the proposed class in this case should be certified pursuant to Rules 23(a) and

9 23(b)(2) of the Federal Rules of Civil Procedure.

10

SUMMARY OF ARGUMENT

11

Named Plaintiffs bring this case to remedy architectural barriers at Defendant’s

12 corporate owned and/or operated Taco Bell restaurants in California that discriminate against a

13 large number of Taco Bell patrons who use wheelchairs or scooters. The putative class seeks

14 an injunction ordering Defendant Taco Bell Corp. (“Taco Bell”) to adopt policies to ensure

15 access for customers who use wheelchairs or scooters, and to use its centralized design and

16 construction program to bring all of its stores into compliance with the Americans with

17 Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Unruh Civil Rights Act, Cal. Civ.

18 Code § 51 et seq. (“Unruh” or “the Unruh Act”), and the California Disabled Persons Act, Cal.

19 Civ. Code § 54 et seq. (the “CDPA”). The putative class also seeks, among other relief, the

20 minimum statutory damages per offense under Unruh and the CDPA.

21

This case epitomizes the type of case for which class action treatment -- and

22 certification under Rule 23(b)(2) in particular -- is appropriate, as the architectural barriers at

23 Defendant’s restaurants, and Defendant’s policies that result in such barriers, affect the Named

24 Plaintiffs and class members in the same manner and are appropriate targets for final,

25

26

1

These restaurants are identified in exhibit 3 to the Declaration of Timothy P.

Fox (“Fox Decl.”).

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1 company-wide, injunctive relief. In addition, there are no individualized damage issues,

2 because each class member seeks the minimum statutory damages per offense under Unruh

3 and the CDPA, to which they are entitled without proof of actual damages.

4

FACTS

5 A. Named Plaintiffs.

6

Named Plaintiffs Francie Moeller, Ed Muegge, Katherine Corbett and Craig Yates are

7 among the more than 150,000 Californians who use wheelchairs or scooters for mobility. (See

8 ex. 2 at 2.)2 The Named Plaintiffs are all active members of their communities, and all are

9 dedicated to advocating for the rights of persons with disabilities. Ms. Moeller, for example, is

10 a past chair of the Bay Valley District Organization of Business and Professional Women, and

11 is the current Chair of the Disability Caucus of the California Democratic Party. (See Moeller

12 Decl. ¶ 2 (ex. 11).) Mr. Muegge taught disability advocacy classes at Sonoma State University

13 and Santa Rosa Junior College, while Ms. Corbett has, on several occasions, testified at

14 legislative hearings on issues relating to persons with disabilities. (See Muegge Decl. ¶¶ 3-4

15 (ex. 12); Corbett Decl. ¶ 2 (ex. 13).) Mr. Yates is a Parks and Recreation Commissioner for

16 the City of San Rafael and is on the Advisory Boards of Golden Gate Transit and the

17 Metropolitan Transit Commission, and both Boards oversee issues concerning use of public

18 transit systems by the elderly and persons with disabilities. (See Yates Decl. ¶¶ 3-4 (ex. 14).)

19

The Named Plaintiffs eat at Taco Bell restaurants owned or operated by Defendant, and

20 all have encountered numerous accessibility barriers at these restaurants which are discussed in

21 detail in Section D(2) below.

22

23

24

25

2

All references to exhibit numbers throughout the brief refer to Exhibits to the

Declaration of Timothy P. Fox, filed concurrently with this motion. For convenience, all

26

references to deposition testimony in this brief are abbreviated as [Witness’ Last Name] Dep. All references to declarations are abbreviated as [Witness’ Last Name] Decl.

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1 B. Legal Context

2

Although it is premature to address the merits of this litigation, an understanding of the

3 legal context will be helpful in understanding the appropriateness of class certification.

4

1. The Americans with Disabilities Act.

5

The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate

6 for the elimination of discrimination against individuals with disabilities .” 42 U.S.C.

7 § 12101(b)(1); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (holding that the

8 ADA provides a “broad mandate” to eliminate discrimination against people with disabilities).

9 The statute recognizes that “the Nation’s proper goals regarding individuals with disabilities

10 are to assure equality of opportunity, full participation, independent living, and economic

11 self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8). Title III of the ADA prohibits

12 discrimination on the basis of disability in places of public accommodation such as Taco Bell

13 restaurants, both with respect to the accessibility of their physical facilities and with respect to

14 their policies and practices.

15

The ADA required the Department of Justice (“DOJ”) to issue regulations carrying out

16 the non-transportation requirements of Title III. 42 U.S.C. § 12186(b). Pursuant to this

17 statutory mandate, the DOJ promulgated Standards for Accessible Design (“DOJ Standards”).

18 See 28 C.F.R. pt. 36, app. A.3 The DOJ Standards contain detailed design specifications for

19 public accommodations covering a variety of architectural elements, including, for example,

20 parking lots, food service lines, accessible routes, and restrooms. See generally id.

21

The accessibility requirements of Title III and the DOJ Standards vary depending on

22 the dates that facilities were constructed or altered. Facilities built after January 26, 1993, are

23 required to be “readily accessible to and usable by” individuals who use wheelchairs, and these

24 facilities must comply with the DOJ Standards. 42 U.S.C. § 12183(a)(1); 28 C.F.R.

25

3

The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott,

26 524 U.S. 624, 646 (1998).

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1 § 36.406(a). When facilities that were built before that time are altered in certain ways after

2 January 26, 1992, the altered portion and -- to a certain extent -- the path of travel to the altered

3 portion must comply with the DOJ Standards. 28 C.F.R. §§ 36.402(b)(2); 36.406(a). In

4 facilities built prior to January 26, 1993 and not altered since January 26, 1992, Taco Bell is

5 required to remove architectural barriers where it is “readily achievable” to do so. 42 U.S.C.

6 § 12182(b)(2)(A)(iv).4 Readily achievable barrier removal must comply with the DOJ

7 Standards, unless doing so would make the removal not readily achievable. See 28 C.F.R.

8 § 36.304(d)(1) (incorporating the alteration standards set forth in § 36.402). In addition, Taco

9 Bell must “maintain in operable working condition those features of facilities and equipment

10 that are required to be readily accessible to and usable by persons with disabilities.” 28 C.F.R.

11 § 36.211.

12

2. The Unruh Act and CDPA.

13

Both the CDPA, which was enacted in 1968, and the Unruh Act, which was amended

14 in 1987 to cover persons with disabilities, prohibit discrimination on the basis of disability in

15 the full and equal access to the services, facilities and advantages of public accommodations.

16 Cal. Civ. Code §§ 51(b) (Unruh) & 54.1(a)(1) (CDPA). A prevailing plaintiff is entitled to,

17 among other relief, statutory minimum damages of $4,000 for each violation of the Unruh Act,

18 and statutory minimum damages of $1,000 for each violation of the CDPA. Cal. Civ. Code

19 §§ 52(a) (Unruh) & 54.3(a) (CDPA). A plaintiff is entitled to recover the statutory minimum

20 damages regardless of whether the plaintiff has suffered any actual damages. Botosan v. Paul

21 McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (holding that “proof of actual damages is

22 not a prerequisite to recovery of statutory minimum damages” under the CDPA and Unruh

23 Act). The putative class seeks the statutory minimum damages for each offense.

24

4

The question of what is readily achievable turns primarily on the nature and

25 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; see 26 also 42 U.S.C. § 12181(9).

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1

All buildings constructed5 or altered6 after July 1, 1970, must comply with standards

2 governing the physical accessibility of public accommodations. D’Lil v. Stardust Vacation

3 Club, No. CIV-S-00-1496DFL PAN, 2001 WL 1825832, at *7 (E.D. Cal. Dec. 21, 2001).

4 From December 31, 1981 until the present, the standards have been set forth in Title 24 of the

5 California regulatory code (the “California Standards”). People ex rel. Deukmejian v. CHE,

6 Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983). In addition to setting forth design and

7 construction standards, the California Standards require public accommodations to maintain in

8 operable working condition those features of facilities and equipment that are required to be

9 accessible to and usable by persons with disabilities. Cal. Standards § 1101B.3.

10

A violation of a California Standard constitutes a violation of both the CDPA and the

11 Unruh Act. See, e.g., Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433, 439

12 (N.D. Cal. 1994). A violation of the ADA also constitutes a violation of both statutes. See

13 Cal. Civ. Code §§ 51(f) & 54(c).

14 C. The Colorado Litigation.

15

In 1999, the United States District Court for the District of Colorado certified a class

16 very similar to the one sought to be certified in this case. Colo. Cross-Disability Coalition v.

17 Taco Bell Corp., 184 F.R.D. 354, 357, 363 (D. Colo. 1999) (the “Colorado Class Action”).

18 The certified class, which was represented by the undersigned counsel, consisted of individuals

19 who used wheelchairs or scooters and challenged the use of inaccessible “queue lines” at Taco

20 Bell restaurants in Colorado. A “queue line” is “a path cordoned off with barriers causing

21 patrons to form a single line” while waiting to place their order. Id. at 355. The Colorado

22 class sought injunctive and statutory damages. Id. at 356. The case subsequently settled on

23

24

25

5

Cal. Health & Safety Code § 19956.

26

6

Cal. Health & Safety Code § 19959.

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1 terms that required Taco Bell to bring the queue lines in all of its Colorado restaurants into

2 compliance with the DOJ Standards. (Fox Decl. ¶ 4).

3 D. Defendant Taco Bell Corp.

4

1. Background.

5

Taco Bell, a subsidiary of Yum! Brands, Inc. (“Yum”), sells Mexican fast food

6 products throughout the United States and elsewhere. Taco Bell is a highly-centralized

7 company headquartered in Irvine, California. According to Defendant’s discovery responses,

8 it directly owns and/or operates 220 restaurants in California (“corporate restaurants”). (See

9 ex. 3.) Although there are other California Taco Bell restaurants operated by Defendant’s

10 franchisees, Plaintiffs seek class certification in this case only with respect to patrons of the

11 corporate restaurants.

12

2. Accessibility Problems At Defendant’s California Restaurants.

13

To date, discovery in this case has been restricted to class certification issues, and thus

14 Plaintiffs have not yet had an opportunity to investigate fully Taco Bell’s violations of the

15 ADA and California law. Nevertheless and as set forth below, the experiences of the Named

16 Plaintiffs and the limited discovery that has occurred to date demonstrate a consistent pattern

17 of accessibility problems at Defendant’s California restaurants.

18

a. Inaccessible Queue Lines.

19

As was the case in Colorado prior to the Colorado Class Action, queue lines in many

20 California Taco Bell restaurants are inaccessible to people who use wheelchairs or scooters.

21 The Named Plaintiffs have all encountered queue lines that were too narrow for them to

22 traverse. (Moeller Decl. ¶ 5; Muegge Decl. ¶ 9; Corbett Decl. ¶ 4; Yates Decl. ¶ 6 (exs. 11-14,

23 respectively).) Defendant contends that persons with disabilities can access the service counter

24 through a separate route to the side of the queue line, but this system is segregated from all

25 other customers and is frequently blocked by a chain. See Colo. Cross-Disability Coalition,

26 184 F.R.D. at 355-56. Even when it works as intended, this system makes it difficult or

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1 impossible for a person using a wheelchair or scooter to determine where they are in line with

2 respect to non-disabled people standing in the queue line, with the result that it either angers

3 non-disabled customers who believe that disabled patrons in the alternative wheelchair access

4 are “cutting” in line, or causes persons with disabilities to be served after nondisabled

5 customers are served. See id. It also frequently requires people who use wheelchairs or

6 scooters to have to shout to get the attention of Taco Bell employees in order to receive

7 service. See id.

8

Several requirements under both Standards apply to queue lines. For example, as

9 cafeteria or food service lines, they must be at least 36 inches wide. DOJ Standards § 5.5; Cal.

10 Standards § 1104B.5(5). In addition, queue lines with lanes that are between 36 and 42 inches

11 wide and that require a turn around an obstruction must provide a 60-inch diameter space at the

12 turn. See DOJ Standards § 4.2.3; Cal. Standards § 1118B.3.

13

b. Inaccessible Entrances.

14

The California Standards provide that the maximum effort to open an exterior door not

15 exceed 8.5 pounds of force. Cal. Standards § 1133B.2.5. All of the Named Plaintiffs have

16 encountered doors that were difficult or impossible for them to open. (Moeller Decl. ¶ 5;

17 Muegge Decl. ¶ 9; Corbett Decl. ¶ 4; Yates Decl. ¶ 6 (exs. 11-14, respectively).) Plaintiffs’

18 counsel measured the force necessary to open the exterior doors at five Taco Bell restaurants,

19 and all five restaurants were significantly out of compliance. (Miot Decl. ¶¶ 2, 4, 5, 7-9 (ex.

20 15).) This violation prevents many class members from even entering restaurants

21 independently.

22

c.

Inaccessible Condiment and Drink Dispensers.

23

Both the DOJ and California Standards have requirements covering drink and

24 condiment dispensers. See, e.g., DOJ Standards §§ 4.2 & 5.6; Cal. Standards §§ 1104B.5(6) &

25 1122B.4. The Named Plaintiffs have all encountered drink and/or condiment dispensers that

26

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1 were difficult or impossible for them to reach. (Moeller Decl. ¶ 5; Muegge Decl. ¶ 9; Corbett

2 Decl. ¶ 4; Yates Decl. ¶ 6 (exs. 11-14, respectively).)

3

d. Inaccessible Dining Rooms.

4

Dining rooms are subject to several requirements under both sets of Standards. See,

5 e.g., DOJ Standards § 5; Cal. Standards §§ 1104B.5 & 1122B. One requirement, for example,

6 is that “at least 5 percent, but not less than one, of the fixed tables [in the dining area] shall be

7 accessible. . .” DOJ Standards § 5.1 (emphasis added). All of the Named Plaintiffs have

8 experienced accessibility problems in Taco Bell dining rooms. (Moeller Decl. ¶ 5; Muegge

9 Decl. ¶ 9; Corbett Decl. ¶ 4; Yates Decl. ¶ 6 (exs. 11-14, respectively).) For example, in many

10 restaurants, it is impossible for more than two people who use wheelchairs to sit together.

11 (See, e.g., Moeller Dep. at 35:16-22 (ex. 17); Corbett Dep. at 85:17-86:13 (ex. 18).)

12

e. Inaccessible Restrooms.

13

Both sets of Standards include requirements applicable to restrooms. See, e.g., DOJ

14 Standards §§ 4.16 (water closets), 4.17 (toilet stalls), 4.18 (urinals), 4.19 (lavatories and

15 mirrors), 4.22 (toilet rooms), 4.24 (sinks) and 4.26 (handrails and grab bars); Cal. Standards

16 § 1115B. Among other requirements, these Standards require that restroom doors have

17 accessibility signage, and that piping under sinks be insulated to prevent burning persons in

18 wheelchairs. DOJ Standards § 4.24.6; Cal. Standards §§ 1115B.5 & 1504.2.2. All of the

19 Named Plaintiffs have had accessibility problems in Taco Bell restrooms,7 and these problems

20 include a lack of accessibility signage on restroom doors and uninsulated sink pipes. (Yates

21 Dep. at 40:14-21 (ex. 19); Photograph of Novato restaurant (ex. 20); Corbett Dep. at 48:24-

22 49:7 (ex. 18).)

23

24

25

7

(Moeller Decl. ¶ 5; Muegge Decl. ¶ 9; Corbett Decl. ¶ 4; Yates Decl. ¶ 6 (exs.

26 11-14, respectively).)

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1

f. Inaccessible Parking Lots.

2

The Named Plaintiffs have encountered a variety of accessibility problems in the

3 parking lots of Defendant’s restaurants, including, for example, designated handicap parking

4 spaces and/or adjacent access aisles that are too narrow to permit persons who use wheelchairs

5 or scooters to unload from their vans,8 designated handicap parking spaces that are located in

6 areas that require persons to traverse traffic lanes,9 and parking lots that have no, or

7 inadequate, accessibility signage.10 (See generally Moeller Decl. ¶ 5; Muegge Decl. ¶ 9;

8 Corbett Decl. ¶ 4; Yates Decl. ¶ 6 (exs. 11-14, respectively).) Taco Bell’s discovery responses

9 demonstrate that many of its restaurants do not have the required number of accessible

10 spaces.11 (Fox Decl. ¶ 13.) Further, Plaintiffs’ counsel observed parking lots at 15 corporate

11 restaurants, and measured the dimensions of the designated accessible spaces in 13 of these

12 parking lots. (Fox Decl. ¶¶ 5-10; Miot Decl. ¶¶ 2-10 (ex. 15).) Of these 13 parking lots, the

13 designated accessible spaces at 10 parking lots did not comply with the width requirements of

14

8

Under both sets of Standards, the access aisle of a van accessible space must be

15 at least 96 inches wide. DOJ Standards § 4.1.2(5)(b); Cal. Standards § 1129B.4(2). Although

both sets of Standards have requirements concerning the total width of the space and access 16 aisle of a van accessible spot, the DOJ Standard (192 inches) is narrower than the California

Standard (204 inches). DOJ Standards §§ 4.1.2(5)(b), 4.6.3; Cal. Standards § 1129B.4(2). 17

9

The DOJ Standards require designated accessible spaces to be located on the

18 shortest accessible route of travel from the parking lot to the entrance, and the California

Standards require that designated spaces be so located that persons with disabilities are not 19 compelled to wheel behind parked cars other than their own. DOJ Standards § 4.6.2; Cal.

Standards § 1129B.4(3) 20

10 Each designated space must have a sign showing the accessibility symbol, and 21 van accessible spaces must also have a sign stating “Van Accessible” below the accessibility

symbol. DOJ Standards § 4.6.4; Cal. Standards § 1129B.5. The California Standards also 22 require a sign stating that unauthorized vehicles parked in designated spaces will be towed,

and providing information on how to contact the towing company if a car is towed. Cal. 23 Standards § 1129B.5.

24

11 Both sets of Standards require that parking lots with 26 to 50 spaces must have

at least 2 designated accessible spaces with adjacent access aisles, parking lots with between 25 51 and 75 spaces must have 3 designated accessible spaces with adjacent access aisles, and that

all parking lots with more than 5 spaces must have at least one van accessible space. DOJ 26 Standards § 4.1.2(5); Cal. Standards Table 11B-6.

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1 the DOJ and/or California Standards. (Fox Decl. ¶¶ 7-10, Miot Decl. ¶¶ 3-5, 7, 9-10 (ex. 15).)

2 In addition, many of the restaurants had no, or had inadequate, “Van Accessible” and/or

3 towing signage. (Fox Decl. ¶¶ 6-8, 10; Miot Decl. ¶¶ 3, 5-6, 9-10 (ex. 15).)

4

3. Taco Bell’s Policies.

5

Taco Bell has highly centralized policies governing the design, construction and

6 maintenance of its restaurants. For example, Taco Bell restaurants are constructed in

7 accordance with a series of standardized prototypes. (Azalde Dep. at 20:9-21 (ex. 10).) These

8 prototypes are developed by Taco Bell’s Architecture and Engineering (“A&E”) department,

9 which is part of Taco Bell’s “corporate” division located at its corporate headquarters in Irvine,

10 California. (Azalde Dep. at 13:16-22; 18:14-20; 20:11-14 (ex. 10).) In addition, Taco Bell’s

11 accessibility policies were created, promulgated and monitored by the A&E department and

12 Taco Bell’s ADA task force, which included senior managers of Taco Bell. (See, e.g., Azalde

13 Dep. at 24:6-19; 30:11-32:4; 38:3-41:4 (ex. 10).)

14

Taco Bell’s primary method of addressing the accessibility of its restaurants is through

15 its American with Disabilities Act Facilities Compliance Guide (“Compliance Guide”), which

16 was prepared by the A&E department. (Ex. 5; Azalde Dep. at 48:8-9 (ex. 10).) The

17 Compliance Guide -- which was sent to everyone in the company12 -- includes a “Facilities

18 Checklist” covering certain accessibility issues. (Ex. 5 at 02-0018.) The Compliance Guide

19 and Facilities Checklist are used in connection with Taco Bell’s design of new restaurants,

20 modifications to old restaurants, and final inspection of completed construction. (Resps. to

21 First Set of Interrogs.& Reqs. for Prod. of Docs. to Taco Bell Corp. at 7 (ex. 9).)

22

Several of the architectural barriers encountered by class members result directly from

23 Taco Bell’s policies. For example, the problems that Named Plaintiffs have had in finding

24 accessible seating for groups of more than two persons using wheelchairs results from the fact

25

26

12 Azalde Dep. at 48:10-16 (ex. 10).

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1 that many or all of Defendant’s prototypes make accessible five percent of the seats, rather

2 than five percent of the tables, in its restaurants. (See Fox Decl. ¶¶ 16-17) As a result, in

3 many restaurants, there are no tables with more than two accessible seats, thus precluding more

4 than two persons who use wheelchairs or scooters from sitting together. Id. Indeed, in many

5 restaurants, there are no tables with more than one accessible seat, thereby preventing even two

6 persons who use wheelchairs or scooters from sitting together. Id.

7

Similarly, Taco Bell’s inaccessible queue lines result from centralized policies and

8 prototypes. When Taco Bell started using queue lines in its restaurants in approximately

9 1984,13 the California Standards already required food service lines (known as “cafeteria lines”

10 at the time) to be at least 36 inches wide. Cal. Admin. Code § 2-611(c)(4) (1982) (ex. 8).

11 Carlos Azalde, Taco Bell’s Rule 30(b)(6) designee on queue lines in both the Colorado Class

12 Action and the present litigation, affirmed that the food service line provision applied to queue

13 lines. (Azalde Colorado Class Action Dep. at 35:13-19 (ex. 16).) Nevertheless, from 1984

14 until the early 1990s, all Taco Bell restaurants were built with queue lines that were narrower

15 than 36 inches. (Azalde Dep. at 93:11-16 (ex. 10).) From the early 1990s until approximately

16 1998,14 the width of queue line lanes was widened to 36 inches, but the width at the turn was

17 only 42 inches,15 instead of the required 60 inches. See supra p. 8. Thus most or all of the

18 queue lines in Taco Bell restaurants built prior to 1998 violate both the DOJ and California

19 Standards.

20

Other accessibility problems encountered by class members result from Taco Bell’s

21 failure to include various accessibility requirements in its company-wide policies. For

22 example, the Compliance Guide and Facilities Checklist do not address: the requirement that

23

24

13 Azalde Dep. at 15:2-4 (ex. 10).

25

14 Azalde Dep. at 92:6-13 (ex. 10).

26

15

Fox Decl. ¶ 18.

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1 accessible parking spaces should be located as close as possible to the entrance and should not

2 require persons with disabilities to travel behind parked cars; the required width of van

3 accessible spaces under the California Standards; the requirement that “Van Accessible” and

4 towing signs be installed in parking lots;16 or the requirement that the maximum effort to open

5 an exterior door not exceed 8.5 pounds of force. In addition, Taco Bell did not even consider

6 the accessibility of the height of drink and condiment dispensers until approximately 1995.

7 (Azalde Dep. at 86:17-21; 82:18-19 (ex. 10).) Even then, the prototypes only set forth the

8 height of the table on which the drink dispenser sits and did not address the height of the

9 dispenser itself. (K50 Prototype plan (ex. 6 at CA0011).)

10

Finally, some accessibility problems result from Taco Bell’s failure to enforce its

11 accessibility policies. For example, in December 1997, Taco Bell conducted a project to

12 restripe and repair the parking lots at all of its corporate restaurants, and this project was

13 supposed to include a review and correction of accessible parking. (Azalde Dep. at 108:4-

14 111:25 (ex. 10).) Had the project been carried out in accordance with Taco Bell’s Compliance

15 Guide, all parking lots would now have the number of accessible spaces required by the

16 Compliance Guide, and all access aisles for van accessible spaces would now be at least 96

17 inches wide as set forth in the Compliance Guide. (Compliance Guide at 02-009 (ex. 5).)

18 Instead, numerous parking lots still do not have the required number of accessible spaces,17 and

19 of the 13 parking lots in which Plaintiffs’ Counsel measured the dimensions of the designated

20 accessible spaces, 8 did not have van accessible spaces with access aisles that were at least 96

21 inches wide. (Fox Decl. ¶¶ 7-8, 10; Miot Decl. ¶¶ 3-5, 9-10 (ex. 15).)

22
16 Some of these parking requirements are discussed in Taco Bell’s 1997 “Site 23 Development Manual,” which applies to new construction. Based on the numerous
accessibility problems in Defendant’s parking lots observed by Plaintiffs’ Counsel and 24 encountered by the Named Plaintiffs, this Manual has not been used with respect to existing or
altered restaurants. Further, the Manual does not discuss the width requirements under the 25 California Standards for van accessible spaces, or the towing sign requirement.

26

17

Fox Decl. ¶ 13.

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1

ARGUMENT

2 A. Introduction

3

Named Plaintiffs seek certification of the following class:

4

All individuals with disabilities who use wheelchairs or electric scooters for mobility

who, during a time period to be determined by this Court, were denied, or are currently

5

being denied, on the basis of disability, full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of California Taco Bell corporate

6

restaurants (identified in ex. 3).

7

It is inappropriate to pass on the merits of the claims at the class certification stage.

8 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974). Rather, the Court must

9 determine whether the proposed class satisfies the four prerequisites of Rule 23(a), as well as

10 one of the three subsections of Rule 23(b). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022

11 (9th Cir. 1998). Named Plaintiffs seek certification pursuant to Rule 23(b)(2) because

12 Defendant has “acted or refused to act on grounds generally applicable to the class, thereby

13 making appropriate final injunctive relief or corresponding declaratory relief with respect to

14 the class as a whole.” Fed. R. Civ. P. 23(b)(2).

15

Named Plaintiffs will analyze each of the requirements of Rule 23(a) and Rule 23(b)(2)

16 separately below. As an overview, however, numerous courts in the Ninth Circuit have

17 certified classes of individuals with disabilities challenging architectural barriers and/or

18 deficient policies. These include, for example:

19

•

Armstrong v. Davis, 275 F.3d 849, 869-70, 879 (9th Cir. 2001), cert. denied,

20

537 U.S. 812 (2002) (Affirming the certification of a class of prisoners and

21

parolees with sight, hearing, learning, developmental and mobility disabilities

22

alleging violations of the ADA and the Rehabilitation Act);

23

•

Bates v. United Parcel Serv., 204 F.R.D. 440, 448 (N.D. Cal. 2001) (Certifying

24

nationwide class of hearing impaired employees of the defendant for alleged

25

violations of the ADA);

26

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1

•

Siddiqi v. Regents of the Univ. of Calif., No. C 99-0790 SI, 2000 WL

2

33190435, at *11 (N.D. Cal. Sept. 6, 2000) (Certifying classes of deaf and hard

3

of hearing students for alleged violations of federal law, including the ADA and

4

Rehabilitation Act);

5

•

Jorgensen v. Jack in the Box Rests., No. C95-0406 SAW, slip op. at 3 n.4, 7

6

(N.D. Cal. Feb. 28, 1997) (ex. 7) (Certifying class of persons with mobility

7

disabilities seeking monetary and injunctive relief under the ADA, Unruh Act,

8

CDPA and other state laws for alleged violations of architectural accessibility

9

requirements);

10

•

Berlowitz v. Nob Hill Masonic Mgmt., Inc., No. C-96-0141 MHP, 1996 WL

11

724776 at *1, 5 (N.D. Cal. Dec. 6, 1996) (Certifying class consisting of all

12

persons in California with physical disabilities who were denied the right to full

13

and equal access to, and use and enjoyment of, a concert arena seeking

14

injunctive and monetary relief under the ADA, Unruh Act, CDPA and other

15

state laws for alleged violations of architectural accessibility requirements);

16

•

Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 460 (N.D. Cal.

17

1994), modified, 158 F.R.D. 439, 443, 460 (1994) (Certifying a class of

18

disabled persons who used wheelchairs or who walked using aids who sought

19

monetary and injunctive relief for alleged violations of architectural

20

accessibility requirements of the ADA and the CDPA);

21

•

Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK and CIV. S-93-

22

1622 LKK, 1994 U.S. Dist. LEXIS 21281, at *18-19 (E.D. Cal. June 28, 1994)

23

(Certifying a class of physically disabled persons seeking monetary and

24

injunctive relief for alleged architectural barriers that violated the ADA, Unruh

25

and the CDPA).

26

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1 These cases are in accord with numerous decisions by courts across the country certifying

2 classes of individuals with disabilities challenging architectural barriers, transportation

3 barriers, and/or discriminatory policies.18

4 B. The Proposed Class Meets the Requirements of Rule 23(a).

5

1. The Proposed Class Is So Numerous That Joinder Is Impracticable.

6

Rule 23(a)(1) requires that a class be so numerous that joinder of all members is

7 impracticable. “Plaintiffs do not need to state the exact number of potential class members,

8 nor is a specific number of class members required for numerosity.” Bates, 204 F.R.D. at 444

9 (citing Arnold, 158 F.R.D. at 448). A court may make common sense assumptions to support a

10 finding that joinder would be impracticable. Colo. Cross-Disability Coalition, 184 F.R.D. 354

11 at 358; 1 Robert Newberg, Newberg on Class Actions, § 3:3 at 225 (4th ed. 2002) (hereinafter

12 “Newberg”) (“Where the exact size of the class is unknown but general knowledge and

13 common sense indicate that it is large, the numerosity requirement is satisfied.”). “Census data

14 are frequently relied on by courts in determining the size of proposed classes.” 1 Newberg

15

16
18 See, e.g. Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 423, 426 (5th 17 Cir. 1997); Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27, 38 (E.D.N.Y. 2002); Access
Now, Inc. v. Claire’s Stores, Inc., No. 00-14017-CIV., 2002 WL 1162422, at *3 (S.D. Fla. 18 May 7, 2002); Ass’n for Disabled Ams. v. Amoco Oil 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 19 v. Hawkins, 208 F.R.D. 301, 318-20 (D. Colo. 2002); Nat’l Org. on Disability v. Tartaglione,
No. CIV. A. 01-1923, 2001 WL 1258089, at *5 (E.D. Pa. Oct. 22, 2001); Access Now, Inc. v. 20 AHM CGH, Inc., Case Number: 98-3004 CIV, 2000 U.S. Dist. LEXIS 14788, at *16-17 (S.D.
Fla. Jul. 12, 2000); Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 21 530 (S.D. Fla. 2000); Bacal v. Southeastern Pa. Transp. Auth., Civil Action No. 94-6497, 1995
WL 299029, at *8-9 (E.D. Pa. May 16, 1995); Boulet v. Cellucci, 107 F. Supp. 2d 61, 63, 81 22 (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., 179 F.R.D. 185, 196 (W.D. Tex. 1998); Anderson v. 23 Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 462 (E.D. Pa. 1998); Kathleen S. v. Dep’t of Pub.
Welfare, Civ. Act. No. 97-6610, 1998 U.S. Dist. LEXIS 2027, at *8-9 (E.D. Pa. Feb. 25, 24 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 York City, 25 Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996); Henrietta D. v. Giuliani, No. 95-CV-
0641, 1996 WL 633382, at *16 (E.D.N.Y. Oct. 25, 1996); McKay v. County Election 26 Comm’rs For Pulaski County, Arkansas, 158 F.R.D. 620, 626 (E.D. Ark. 1994).

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1 § 3:3 at 226; see also Colo. Cross-Disability Coalition, 184 F.R.D. at 358; Arnold, 158 F.R.D.

2 at 448; Berlowitz, 1996 WL 724776, at *3.

3

Census figures demonstrate that there are approximately 151,580 non-institutionalized

4 people 16 years of age or older in California who use wheelchairs. (Ex. 2 at 2.) This number

5 does not include institutionalized people who use wheelchairs, people under the age of 16

6 years who use wheelchairs, or people who use scooters for mobility, all of whom are potential

7 members of the class. Further, the 220 restaurants covered by the proposed class had more

8 than 50 million transactions in 2002 alone. (Fox Decl. ¶ 14.) As a matter of common sense,

9 then, the class in this case is large.

10

In addition, the class is geographically dispersed, stretching from San Diego to Napa,

11 and the class members are difficult to identify. Both of these factors support a finding that

12 joinder in this case is impracticable. See, e.g., 1 Newberg, § 3:6 at 250-52 (and cases cited

13 therein) (joinder is impracticable where the class is geographically dispersed); Leiken, 1994

14 U.S. Dist. LEXIS 21281, at *13 (joinder is impracticable where class members are difficult to

15 identify).

16

This evidence is similar to, but even more compelling than, the evidence relied upon in

17 the Colorado Class Action to find numerosity. For example, that case involved only 38

18 restaurants, only 12 million customer transactions, a smaller geographic area (the Colorado

19 front range), and a statewide population of only about 15,369 wheelchair users. Colo. Cross-

20 Disability Coalition, 184 F.R.D. at 358.

21

For these reasons, joinder in this case is impracticable and the class satisfies Rule

22 23(a)(1).

23

2. There Are Questions of Law and Fact Common to the Proposed Class.

24

Rule 23(a)(2) requires that there be questions of law or fact that are common to the

25 class. “[T]he Ninth Circuit considers the requirements for finding commonality under Rule

26 23(a)(2) to be ‘minimal.’” Bates, 204 F.R.D. at 445 (quoting Hanlon, 150 F.3d at 1020). It is

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1 sufficient for class members to have shared legal issues but divergent facts or, similarly, to

2 share a common core of facts but base their claims for relief on different legal theories. Bates,

3 204 F.R.D. at 445.

4

a. Common Architectural Barriers.

5

Numerous courts have held that where people who use wheelchairs encounter the same

6 types of barriers at a number of commonly-owned or affiliated public accommodations,

7 commonality is established and class certification is appropriate. See, e.g., Colo. Cross-

8 Disability Coalition, 184 F.R.D. at 359-60; Ambulatory Surgery, 197 F.R.D. at 526; Arnold,

9 158 F.R.D. at 449; Leiken, 1994 U.S. Dist. LEXIS 21281, at *14.

10

In Arnold, for example, a class of mobility-impaired persons challenged architectural

11 barriers at more than seventy of the defendant’s California theaters. 158 F.R.D. at 444. In

12 holding that the commonality requirement was met, the court found:

13

Inadequate wheelchair accommodations at particular theaters are very likely to affect

all wheelchair-users in the same way. The same is true with respect to the affect of

14

accommodations for the semi-ambulatory on semi-ambulatory movie- goers. Thus the

state of such accommodations at defendant’s various theaters, and the legal adequacy of

15

those accommodations, are issues of fact and law common to all of those disabled

persons affected by them.

16

Id. at 449.

17

In this case, the proposed class challenges the accessibility of a number of architectural

18

elements, including, for example, parking lots, entrances, queue lines, condiment and drink

19

dispensers, dining areas and restrooms. Like Arnold, the state of such elements at Defendant’s

20

restaurants, and the legal adequacy of such elements, are issues of fact and law common to all

21

class members.

22 b. Common Policies and Practices.

23

Courts in a variety of situations have held that questions concerning allegedly

24

25

26

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1 discriminatory policies,19 the lack of required policies,20 and/or failure to enforce required

2 policies21 present factual and legal questions that meet the commonality requirement.

3

In this case, the proposed class challenges a number of Defendant’s policies, lack of

4 required policies, or failure to enforce required policies, and thus a number of common factual

5 and legal questions exist, including:

6

•

Did Defendant’s pre-1998 policy require installation of queue lines that are

7

inaccessible to class members, and if so, did that policy violate the ADA, Unruh

8

Act and/or CDPA?

9

•

Does Defendant have a policy of only making five percent of its seats, but not

10

five percent of its tables, accessible to class members, and if so, does that policy

11

violate the ADA, Unruh Act and/or CDPA?

12

•

Has Defendant failed to create, or failed to enforce, policies concerning the

13

accessibility of its parking lots, including for example, policies relating to the

14

number, dimensions and location of accessible parking spots, as well as the

15
19 See, e.g., 1 Newberg § 3:10 at 283 (“Common issues in actions charging 16 discrimination on the basis of race or sex are the presence of a discriminatory rule or practice
and a general policy of discrimination.”); see also Armstrong, 275 F.3d at 868 (“We have 17 previously held, in a civil-rights suit, that commonality is satisfied where the lawsuit
challenges a system-wide practice or policy that affects all of the putative class members.”); 18 Bates, 204 F.R.D. at 445-46 (holding that commonality was met where the class challenged the
employer’s policy requiring all employees to pass certain hearing standards.) 19
20 See, e.g., Lightbourn, 118 F.3d 421; Tartaglione, 2001 WL 1258089. In 20 Lightbourn and Tartaglione, both of which involved challenges by classes of individuals with
disabilities to inaccessible polling places, the commonality requirement was met because the 21 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 polling places accessible. Lightbourn, 118 F.3d at 22 426; see also Tartaglione, 2001 WL 1258089, at *3 (allegation that defendant failed to have
policies ensuring that voters with mobility impairments had access to neighborhood polling 23 places was an allegation that defendant “engaged in a common course of conduct on a
classwide . . . basis”). 24
21 See, e.g., Ceasar v, Pataki, No. 98CIV.8532 (LMM), 2000 WL 1154318, at *525 6 (S.D.N.Y. 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 26 with various statutory mandates violated Title VI.).

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1

accessibility signage required in parking lots? If so, do such failures violate the

2

ADA, Unruh Act and/or CDPA?

3

•

Has Defendant failed to create, or failed to enforce, policies concerning the

4

accessibility of the entrances to its restaurants, including for example, policies

5

concerning the force necessary to open doors at its entrances? If so, do such

6

failures violate the ADA, Unruh Act and/or CDPA?

7

•

Has Defendant failed to create, or failed to enforce, policies concerning the

8

accessibility of its condiment and drink dispensers, dining rooms, and

9

restrooms? If so, do such failures violate the ADA, Unruh Act and/or CDPA?

10

These policies, lack of required policies, and failure to enforce required policies, all

11 result from a centralized decision-making process, making certification particularly

12 appropriate. See, e.g., Faulk v. Home Oil Co., 184 F.R.D. 645, 655 (M.D. Ala. 1999) (“[T]he

13 locus of decisionmaking authority is an important consideration when determining whether

14 class certification is appropriate for systemic discrimination claims involving multiple

15 facilities.” (citations omitted)). For example, Defendant’s accessibility policies and prototype

16 designs were all formulated at Defendant’s corporate headquarters in Irvine by management

17 personnel. This satisfies the commonality requirement. See, e.g., Buchanan v. Consolidated

18 Stores Corp., --- F.R.D. —, No. CIV.A. DKC 99-3736, 2003 WL 21800960, at *8 (D. Md. July

19 21, 2003) (“The individuals who made the [challenged] decisions did so from Defendants’

20 central headquarters in Pittsfield, Massachusetts, on behalf of their employer. The evidence of

21 centralized decisionmaking is, therefore, sufficient for the court to conclude that Plaintiffs have

22 fulfilled the commonality requirement.”).

23

Finally, because class members seek only the minimum statutory damages per offense,

24 damage issues for each class member are almost identical. As the court in Arnold put it:

25

Even with respect to damage claims, the most important issues -- the state of

accommodations at defendant’s various theaters during the three year statute of

26

limitations period prior to the filing of this suit, and the legal sufficiency thereof -- are

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1

common to the subclass. The only damages issue not common to the subclass is the

simple question of the number of instances that individual class members were

2

aggrieved by inadequate accommodations at defendant's theaters during the period

covered by the lawsuit. (No individual quantum of damages issues will be presented,

3

for plaintiffs have stated that they will seek no more than the statutory minimum of . . .

damages for violations of California Civil Code § 54.1 and § 51, their only causes of

4

action that carry damage remedies.)

5 Arnold, 158 F.R.D. at 449.

6

For these reasons, the proposed class satisfies the commonality requirement of Rule

7 23(a)(2).

8

3. Named Plaintiffs’ Claims Are Typical of the Claims of the Class.

9

Rule 23(a)(3) requires that the claims of the Named Plaintiffs be typical of those of the

10 class. The Ninth Circuit does “not insist that the named plaintiffs’ injuries be identical with

11 those of the other class members, only that the unnamed class members have injuries similar to

12 those of the named plaintiffs and that the injuries result from the same, injurious course of

13 conduct.” Armstrong, 275 F.3d at 869. “[I]n a public accommodations suit . . . where disabled

14 persons challenge the legal permissibility of architectural design features, the interests,

15 injuries, and claims of the class members are, in truth, identical such that any class member

16 could satisfy the typicality requirement for class representation.” Arnold, 158 F.R.D. at 450

17 (emphasis in original). Similarly, the court in Jorgensen held:

18

Indisputably, [the named plaintiff] is typical of the class as defined. She suffers a

mobility disability, manifested by her use of a wheelchair. She was hampered in her

19

ability to use a Jack in the Box restaurant due to its allegedly unaccommodating

structure (a narrow doorway). This and other physical obstacles would, presumably,

20

hinder the ability of persons with many types of mobility disabilities from fully

enjoying the goods and services offered by Defendants and would deter mobility

21

disabled persons from attempting to visit similarly unaccommodating Jack in the Box

restaurants.

22

Jorgensen, No. C95-0406 SAW, slip op. at 5-6 (ex. 7).

23

In this case, the Named Plaintiffs, like members of the proposed class, all use

24

wheelchairs or scooters for mobility and have encountered discriminatory barriers and policies

25

at Defendant’s restaurants. The effect of these barriers and policies is the same for the Named

26

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1 Plaintiffs as for the class: it impairs their ability to eat at Defendant’s restaurants. Named

2 Plaintiffs challenge these barriers under the same statutes and remedial theories as the class.

3 Therefore, the Named Plaintiffs’ claims satisfy the typicality requirement of Rule 23(a)(3).

4

4. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the

Class.

5

The final requirement of Rule 23(a), adequate representation, requires (1) that the

6

proposed representatives do not have conflicts of interest with the proposed class and (2) that

7

the representatives are represented by qualified counsel. Bates, 204 F.R.D. at 447. Adequate

8

representation is usually presumed in the absence of contrary evidence. 3 Newberg § 7:24 at

9

78.

10

The Named Plaintiffs in this case do not have conflicts of interest with the proposed

11

class. All are members of the class that they seek to represent, all seek to remedy allegedly

12

discriminatory architectural barriers and policies, all have a history of advocating for the rights

13

of persons with disabilities, and all will vigorously prosecute this case on behalf of the class.

14

(See generally Moeller, Muegge, Corbett and Yates Decls. (exs. 11-14).)

15

Plaintiffs’ counsel is qualified to represent the class. Plaintiffs’ counsel has extensive

16

experience in litigating disability rights actions and has been certified as class counsel in three

17

class actions under the ADA and other disability rights statutes, including the Colorado Class

18

Action against this Defendant. (Fox Decl. ¶ 3). Plaintiffs’ counsel has spoken and written

19

widely on the rights of persons with disabilities. (Id.) Finally, undersigned counsel is

20

thoroughly familiar with issues concerning people with disabilities because he is a tetraplegic

21

as a result of a sports injury and has used an electric wheelchair for over 15 years. (Id. at ¶ 2.)

22

C. The Proposed Class Is Proper Under Rule 23(b)(2).

23

Once a class has satisfied all four of the prerequisites of Rule 23(a), it must satisfy one

24

of the subsections of Rule 23(b). The class proposed herein satisfies Rule 23(b)(2) if Taco

25

Bell “acted or refused to act on grounds generally applicable to the class, thereby making

26

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Case 3:02-cv-05849-PJH Document 40 Filed 09/16/2003 Page 29 of 30

1 appropriate final injunctive relief or corresponding declaratory relief with respect to the class

2 as a whole . . .” and the representatives are seeking “final injunctive relief or corresponding

3 declaratory relief.” A class that seeks monetary relief as well as injunctive relief should be

4 certified under Rule 23(b)(2) if injunctive relief is the predominant form of relief sought by the

5 class. Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003).

6

The Ninth Circuit in Molski specifically addressed the question before this Court:

7 whether the requirements of Rule 23(b)(2) are met when a class of persons with disabilities

8 challenges architectural barriers and seeks injunctive and monetary relief under the ADA,

9 Unruh and CDPA. The court held that injunctive relief was the predominant form of relief

10 sought by the class, and thus the class met the requirements of Rule 23(b)(2). Id. at 950.

11 Several other courts have certified under Rule 23(b)(2) classes of persons with disabilities

12 seeking injunctive and monetary relief for alleged violations of the ADA, Unruh and CDPA.

13 See, e.g., Arnold, 158 F.R.D. at 461-62; Leiken, 1994 U.S. Dist. LEXIS 21281, at *15-16;

14 Jorgensen, slip op. at 3 n.4; Berlowitz, 1996 WL 724776, at *1, 5.

15

This result is consistent with the purpose of Rule 23(b)(2). “[S]ubdivision (b)(2) was

16 added to Rule 23 in 1966 primarily to facilitate the bringing of class actions in the civil rights

17 area,” in large part because “the class suit is a uniquely appropriate procedure in civil rights

18 cases, which generally involve an allegation of discrimination against a group as well as the

19 violation of rights of particular individuals.” 7A Charles Alan Wright et al., Federal Practice

20 and Procedure § 1775-76 (2d ed. 1986). Indeed, the Supreme Court has found that “[c]ivil

21 rights cases against parties charged with unlawful, class-based discrimination are prime

22 examples” of Rule 23(b)(2) classes. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614

23 (1997) (quoting Adv. Comm. Notes, 28 U.S.C. App., p. 697).

24

In this case, Named Plaintiffs allege that numerous architectural barriers exist at

25 Defendant’s restaurants, that these barriers result from Defendant’s centralized policies

26 concerning the design and accessibility of its restaurants, and that these barriers deny a large

27 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Motion for Class Certification
28

-23-

Case 3:02-cv-05849-PJH Document 40 Filed 09/16/2003 Page 30 of 30

1 number of people the full and equal enjoyment of the restaurants. The predominant relief

2 sought by the class is removal of those barriers, and correction of the discriminatory policies

3 that resulted in the barriers. Further, this case is identical in all relevant respects to Molski,

4 Arnold, Leiken, Jorgensen and Berlowitz, in which the courts held that the classes met Rule

5 23(b)(2)’s requirements. Thus the proposed class in this case should be certified pursuant to

6 Rule 23(b)(2).

7

CONCLUSION

8

For the reasons set forth above, Named Plaintiffs request that this Court, pursuant to

9 Rules 23(a) and 23(b)(2), certify a class in this case.

10

11

FOX & ROBERTSON

12

13

BY: /s/ Timothy P. Fox

Timothy P. Fox

14

15 Dated: September 16, 2003

16

17

18

19

20

21

22

23

24

25

26

27 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Motion for Class Certification
28

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 Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 1 of 29

1 HOLLAND & HART LLP Gregory Eurich, Pro Hac Vice
2 Jim Goh, Pro Hac Vice
555 Seventeenth Street, Suite 3200 3 Denver, Colorado 80202-3 979
Tel: (303) 295-8000
4 Fax: (303) 295-8261

5 Attorneys for Defendant

6
JACKSON LEWIS LLP 7 Jamerson C. Allen, Cal. Bar No. 132866
199 Fremont Street, 10th Floor 8 San Francisco, CA 94105
Tel: (415) 394-9400
9 Fax: (415) 394-9401

10 Attorneys for Defendant

11
IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

13

FRANCIE E. MOELLER et al,
14
Plaintiffs,
15 v.
16
TACO BELL CORP., 17
Defendant.
18
19

)

) ) No. C 02 5849 MJJ ADR

)

)

)

) DEFENDANT'S RESPONSE BRIEF IN

) )

OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

)
) Date:
) Time:

October 21, 2003 9:30 a.m.

) 20 ___________________________________

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 2 of 29

1

TABLE OF CONTENTS

2 Issue

1

3 Introduction

2

4 Relevant Facts

2

5 Argument

6

I. Plantiffs Cannot Prove That Certification Is Proper Under Rule

23(a)
7

A. Plaintiffs Cannot Satisfy The "Commonality" Requirement

8

OfRule23(a)(2)

5

9

B. Plaintiffs Cannot Satisfy The "Numerosity" Requirement Of

Rule 23(a)(1)

12

10

C. Plaintiffs' Have Failed To Satisfy The "Typicality"

11

Requirement Of Rule 23(a)(3)

14

12

D. Plaintiffs Have Failed to Satisfy The "Adequate

Representation" Requirement Of Rule 23(a)(4)

15

13

II. Plaintiffs Also Cannot Satisfy The Requirements of Rule 23(b)

19

14

A. Plaintiffs' Claims Preclude Certification Under Rule

15

23(b)(2)

19

16

B. Plaintiffs' Claims for Substantial Money Damages Require

Analysis Under Rule 23(b)(3), Which Further Defeats Class

17

Certification

20

18 Conclusion

23

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 3 of 29

1

TABLE OF AUTHORITIES

2

Cases

3 Access Now v. S. Fla. Stadium, 161 F. Supp. 2d 1357 (S.D. Fla. 2001)

9

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

10

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

4, 21, 22

6 Arnoldv. UnitedArtists Theatre Circuit, 158 F.R.D. 439 (N.D. Cal. 1994)

9

7 Arnoldv. UnitedArtists Theatre Circuit, 866 F. Supp. 433 (N.D. Cal. 1994)

12

8 Bates v. United Parcel Serv., 204 F.R.D. 440 (N.D. Cal. 2001)

11

9 Benner v. Becton Dickinson & Co., 214 F.R.D. 157 (S.D.N.Y. 2003)

11

10 Berlowitz v. Nobb Hill Masonic Mgmt., 1996 WL 724776 (N.D. Cal. Dec 6,

1996)

11,14

11

Castano v. American Tobacco Co., Inc., 84 F.3d 734 (5th Cir. 1996)

22

12

Civic Ass'n of the Deaf V. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996)

11

13

Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443 (6th Cir. 2002)

21

14

Colorado Cross Disability v. Taco Bell Corp., 184 F.R.D. 354 (D. Cob. 1999) 7, 10

15

Duprey v. Conn. Dep 't of Motor Vehicles, 191 F.R.D. 329

11

16

Eisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974)

22

17

Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982)

5, 6, 11

18

Green v. Borg-Warner Protective Servs. Corp., 1998 WL 17719 (S.D.N.Y. Jan.

19 16, 1998)

12

20 Greenspan v. Brassier, 78 F.R.D. 130 (S.D.N.Y. 1978)

18

21 Grimes v. Pitney Bowes, Inc., 100 F.R.D. 265 (N.D. Ga. 1983)

6

22 Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981)

5

23 Hall v. Burger King Corp., 1992 WL 372354 (S.D. Fla Oct. 26, 1992)

9

24 Hanon v. Dataproducts Corp., 976 F.2d 497 (9' Cir. 1992)

5

25 In re Bridgestone/Firestone, Inc., 289 F.3d 1102 (7th Cir. 2002)

11

26 In re Goldchip Funding Co., 61 F.R.D. 592 (M.D. Pa. 1974)

15

27 In re Mid-Atlantic Toyota Antitrust Litig., 93 F.R.D. 485 (D. Md. 1982)

18

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

11

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 4 of 29

1 In re Storage Tech. Corp. Sec. Litig., 113 F.R.D. 113 (D. Cob. 1986)

15, 18

2 Jeffries v. Pension Trust Fund, 172 F.Supp.2d 389 (S.D.N.Y. 2001)

12

3 Kassover v. Computer Depot, Inc., 691 F. Supp. 1205 (D. Minn. 1987)

18

4 Kohn v. American Hous. Found., Inc., 178 F.R.D. 536 (D. Cob. 1998)

5

5 Lang v. Kansas City Power & Light Co., 199 F.R.D. 640 (W.D. Mo. 2001)

20

6 Legrand v. New York City Transit Auth., 1999 WL 342286 (E.D.N.Y. May 26,
1999)
7
Leikenv. Squaw Valley Ski Corp., 1994 WL 494209 (ED. Cal. 1994)
8
Lightbournv. County of El Paso, 118 F.3d 421 (5thCir. 1997)
9
Mace v. Van Ru Credit Corp., 109 F.3d 338 (1997)
10
Mazusv. Dep't of Transp., 489 F.Supp. 376 (M.D. Pa. 1979)
11
Mazus v. Dep't of Transp., 629 F.2d 870, 875 (3rd Cir. 1980)
12
Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003)
13
Morrison v. Booth, 763 F.2d 1366 (11th Cir. 1985)
14
Neff v. VIA Metro. TransitAuth., 179 F.R.D. 185 (W.D. Tex. 1998)
15
O'Conner v. Boeing N. America, Inc., 197 F.R.D. 404 (C.D. Cal. 2000)
16
Officers for Justice v. Civil Serv. Comm 'n of San Francisco, 688 F.2d 615 (9th
17 Cir. 1982)

13 11 14
22 12 12 20, 21
6
14, 19 22
20

18 Reed v. Bowen, 849 F.2d 1307 (lOth Cir. 1988)

5

19 Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997)

19

20 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001)

20, 21

21 Rolex Employees Ret. Trust v. Mentor Graphics Corp., 136 F.R.D. 658 (D. Ore.
1991) 22
Ross v. Nikko Sec. Co. Int'l, Inc., 133 F.R.D. 96 (S.D.N.Y. 1990)
23
Saylor v. Lindsley, 456 F.2d 896 (2d Cir. 1972) 24
Schwartz v. Upper Deck Co., 183 F.R.D. 672 (S.D. Cal. 1999)
25
Sheehan v. Purolator, Inc., 103 F.R.D. 641 (E.D.N.Y. 1984) 26
Sheehan v. Purolator, Inc., 839 F.2d 99, 103-104 (2' Cir. 1988)
27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

111

18
6, 13
15 12
5, 6
6

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 5 of 29

1 Stambaugh v. Kan. Dep 't of Corr., 151 F.R.D. 664 (D. Kan. 1993). 5, 14

2 Weisman v. Darneille, 78 F.R.D. 669 (S.D.N.Y. 1978)

15

3 Wheeler v. City of Columbus, 703 F.2d 853 (5th Cir. 1983) 4 Zinser v. Accufix Research Inst., 253 F.3d 1180 (9th Cir. 2001)

6 5, 21, 22, 23

5

Statutes

6 42 U.S.C. § 12181

9

7 cal. civ. code § § 52

22

8 cal. civ. code § 54

10

9

Re2ulations and Other Authorities

10 cal. code Regs. Title 24 § 101.17.11(4) (2003) 11 Fed. R. civ. p• 23

10
1, 4, 5, 10, 18, 19, 20, 21

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

iv

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 6 of 29

1 HOLLAND & HART LLP Gregory Eurich, Pro Hac Vice
2 Jim Goh, Pro Hac Vice
555 Seventeenth Street, Suite 3200 3 Denver, Colorado 80202-3979
Tel: (303) 295-8000
4 Fax: (303) 295-8261
5 Attorneys for Defendant

6 JACKSON LEWIS LLP
7 Jamerson C. Allen, Cal. Bar No. 132866 199 Fremont Street, 10th Floor
8 San Francisco, CA 94105
Tel: (415) 394-9400
9 Fax: (415) 394-9401
10 Attorneys for Defendant

11
IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

13

FRANCIE E. MOELLER Ct al,
14
Plaintiffs,
15 v.
16
TACO BELL CORP.,
17
Defendant.

) )
) No. C 02 5849 MJJ ADR
) ) )
) DEFENDANT'S RESPONSE BRIEF IN ) OPPOSITION TO PLAINTIFFS' ) MOTION FOR CLASS CERTIFICATION

18

)

) Date:

October 21, 2003

19

) Time:

9:30 a.m.

) 20 ________________________________________

21

22
ISSUE
23
Whether plaintiffs have satisfied the requirements of Rule 23(a) and (b) for 24
certification of a class action.
25

26

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiffs Motion for Class Certification

1

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 7 of 29

1

INTRODUCTION

2

Plaintiffs seek to certify a class of mobility-impaired individuals who have

3 allegedly been denied "full and equal enjoyment of the goods, services, facilities,

4 privileges, advantages or accommodations" in any of the 220 company-owned Taco

5 Bell restaurants scattered throughout the entire state of California. Using a broadbrush,

6 one-size-fits-all approach, plaintiffs attempt to sweep in all so-called "accessibility

7 barriers" in each and every one of the 220 restaurants. Included in plaintiffs' definition

8 of such "accessibility barriers" is a laundry list encompassing every conceivable alleged

9 violation of the Americans With Disabilities Act ("ADA"), the Unruh Act, and/or the

10 California Disabled Persons Act ("CDPA")—ranging from parking spaces to front

11 entrances to accessible seating to queue lines to dining rooms to condiment and drink

12 dispensers to restrooms. Through the class action mechanism, plaintiffs attempt to cast

13 a single dragnet over 220 distinct facilities with varying construction designs or styles,

14 interior layouts, and dates of construction or renovation—some having been built after

15 the ADA, some predating the ADA, and others having been remodeled since the ADA,

16 thereby triggering different legal standards. Plaintiffs' Motion for Class Certification

17 to redress alleged injuries isolated to a cluster of restaurants in northern California by a

18 small, finite, and identifiable group of individuals should be denied.

19

RELEVANT FACTS

20

Taco Bell owns and operates approximately 220 restaurants within the state of

21 California. Azalde Dccl. ¶2 (Ex. A to Goh Dccl.)'. Most of these restaurants were

22 designed according to dozens of different prototypes, each with different layouts and

23 architectural features. Id. Typically, Taco Bell rolled out a new prototype once a year.

24 Azalde depo. at 28:11-12 (Ex. B to Goh Deci). Each prototype incorporates general

25

26 1 Unless otherwise specified, all references to exhibits are to Exhibits to the Declaration of Jim Goh ("Goh Deci."), filed concurrently with this Response.
27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

2

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 8 of 29

1 accessibility standards, but is further adapted by local consultants, architects and

2 construction managers prior to the completion of the building. Azalde Decl. ¶3. Thus,

3 even within each particular prototype, there can be significant architectural variations

4 from store to store. Id. Due to these site-specific adaptations, no two Taco Bell

5 restaurants are identical in all major respects. Id.

6

Some restaurants, however, were not even designed according to any prototype.

7 These include "in line" restaurants that are not standalone buildings but are built within

8 an existing structure such as a high-rise building or a shopping center, as well as

9 "conversion" restaurants that were converted from a preexisting structure such as a

10 bank or another fast food restaurant. Id. at ¶4. In California, Taco Bell operates

11 numerous "conversion" restaurants, principally due to its purchase of the Pup N' Taco

12 chain of fast food restaurants. These restaurants do not conform to any Taco Bell

13 prototype and vary dramatically from one store to the next. Id. at ¶5.

14

Aside from the variations in architectural features, Taco Bell's restaurants in

15 California have vastly different dates of construction and occupancy—ranging from the

16 1960's to the present. Some of these restaurants were built and occupied prior to

17 January 26, 1993—the date of the enactment of the ADA; others were built and

18 occupied after the ADA enactment date. Additionally, some of the pre-ADA restaurants

19 have undergone various degrees of renovations after January 26, 1992. Ex. 3 to Fox
20 Decl.

21

The four named plaintiffs in this case have identified a host of restaurants

22 located within, or in proximity to, the San Francisco bay area. Plaintiffs allege that

23 they have encountered multiple "accessibility barriers" in each of those restaurants, and

24 have identified a long laundry list of such alleged barriers, including inaccessible queue

25 lines, heavy doors, insufficient accessible seating, non-conforming toilets, inadequate 26 or non-existent signage, inaccessible condiment and drink dispensers and non-compliant

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

3

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 9 of 29

1 parking stalls.2 While plaintiffs contend that they have experienced difficulties with

2 access, none of them has any evidence that the alleged accessibility barriers violated the
3 ADA or the California statutes.

4

Taco Bell denies that the alleged accessibility barriers constitute a violation of

5 the ADA or the California statutes. Notwithstanding the lack of merit in plaintiffs'

6 claims, the almost-infinite variations in design, layout and architectural features that

7 distinguish one restaurant from another, and the vastly different dates of construction

8 and renovation present individualized, store-specific factual and legal issues so as to

9 preclude a finding of commonality or typicality. Plaintiffs have also failed to establish

10 that the putative class is so numerous that joinder is impracticable, or that they are

11 adequate class representatives. Finally, plaintiffs have failed to show that they meet the

12 requirements of Rule 23(b). For all these reasons, plaintiffs' motion to certify a class

13 should be denied.

14

ARGUMENT

15 I.
16

PLAINTIFFS CANNOT PROVE THAT CERTIFICATION IS PROPER UNDER RULE 23(a).

17

Fed. R. Civ. P. 23 sets forth a two-part test for the maintenance of a class action.

18 First plaintiffs must satisfy the four prerequisites of Rule 23(a): numerosity,

19 commonality, typicality, and adequacy of representation.3 Second, one of the three

20 subsections of Rule 23(b) must also be satisfied.4 Amchem Prods., Inc. v. Windsor, 521

21 2 Plaintiffs warn that this laundry list might get even longer once they embark on substantive discovery. Plaintiffs' Motion for Class Certification, at 7.
22
Subsection (a) of Rule 23 contains four prerequisites: (1) the class is so numerous 23 that joinder is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims and 24 defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.
25 In this action, plaintiffs seek to certify their class under either Rule 23(b)(2), which provides: "the party opposing the class has acted or refused to act on grounds generally
26 applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

4

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 10 of 29

1 U.S. 591, 614 (1997). The United States Supreme Court has required district courts to

2 conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are met before

3 certifying a class. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). A

4 trial court has broad discretion in deciding whether to certify a class, but that discretion

5 must be exercised within the framework of Rule 23. Gulf Oil Co. v. Bernard, 452 U.S.

6 89, 100 (1981).

7

Plaintiffs bear the burden of proving that all the requirements for class

8 certification are met. Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir.

9 2001); Reed v. Bowen, 849 F.2d 1307, 1309 (10th1 Cir. 1988) ("A party seeking to certify 10 a class is required to show 'under a strict burden of proof, that all the requirements of

11 23(a) are clearly met."). As one court aptly stated: "It is neither practical nor

12 prudential to engage the powerful machinery of a class action on the basis of a

13 hypothetical." Reed, 849 F.2d at 1311. After Falcon, courts will not presume that the

14 elements of Rule 23 are satisfied. Sheehan v. Purolator, Inc., 103 F.R.D. 641, 648

15 (E.D.N.Y. 1984), aff'd, 839 F.2d 99 (2d Cir.1988), cert. denied, 488 U.S. 891 (1988).

16 Although an inquiry into the merits of the claims of the representative or the class is

17 inappropriate when making the decision whether the action should be certified under

18 Rule 23, the court is "at liberty' to consider evidence that relates to the merits if such

19 evidence also goes to the requirements of Rule 23." Hanon v. Dataproducts Corp., 976

20 F.2d 497, 508 (9th Cir. 1992).

21

A. Plaintiffs Cannot Satisfy The "Commonality" Requirement of Rule

22

23(a)(2).

23

To satisfy Rule 23(a)(2), there must be issues of law or fact common to the class.

24 E.g. Kohn v. American Hous. Found., Inc., 178 F.R.D. 536, 540 (D. Cob. 1998).

25 "After Falcon, a general question of class-based discrimination. . . is not enough for

26 commonality Plaintiffs cannot 'simply leap from the premise that they were the

27 victims of discrimination to the position that others must also have been." Stambaugh

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

5

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 11 of 29

1 v. Kan. Dep't of Corr., 151 F.R.D. 664, 674 (D. Kan. 1993) (citing Morrison v. Booth,

2 763 F.2d 1366, 1371 (11th Cir. 1985)). The requirement of commonality is not satisfied

3 by asserting, as plaintiffs do, the broad issue of whether or not Taco Bell's policies and

4 practices, or lack thereof, have violated the accessibility laws. Plaintiffs' Motion at 19-

5 20. See, e.g., Falcon, 457 U.S. at 158; Wheeler v. City of Columbus, 703 F.2d 853, 855

6 (5th Cir. 1983) ("Discrimination in its broadest sense is the only question alleged

7 common to [plaintiff] and to the Class sought to create and represent. Under Falcon,

8 this is not enough.").

9

Rather, plaintiffs must make a "specific presentation identifying the questions of

10 law or fact that [are] common to the claims of the plaintiff and of the members of the

11 class." Falcon, 457 U.S. at 158. In other words, plaintiffs must demonstrate that the

12 proof offered in support of their individual claims will also prove the claims asserted on

13 behalf of the alleged class members who have visited the hundreds of other Taco Bell

14 stores. See, e.g., Sheehan v. Purolator, Inc., 839 F.2d 99, 103-104 (2 Cir. 1988)

1 5 (denying certification because the class claims "were not susceptible to class-wide

16 proof'); Ross v. Nikko Sec. Co. Int'l, Inc., 133 F.R.D. 96, 96 (S.D.N.Y. 1990); Grimes

17 v. Pitney Bowes, Inc., 100 F.R.D. 265, 270 (N.D. Ga. 1983) (commonality requires

18 plaintiffs to demonstrate "that the issues are subject to generalized proof and that such

19 generalized proof will be applicable to the class as a whole").

20

Plaintiffs' factually-diverse and store-specific claims do not lend themselves to

21 generalized proof. To begin with, contrary to plaintiffs' contention, the alleged 22 accessibility barriers were not designed or constructed pursuant to a centralized

23 corporate policy. While Taco Bell has a generalized policy of designing building

24 prototypes that comply with the ADA and all applicable laws, Azalde depo. at 14:9-16, 25 ultimate decisions affecting the design, layout and architectural features of a given store

26 are made on an individualized basis by local managers and consultants overseeing the

27 construction or remodeling of that store. Carlos Azalde, former Manager of Restaurant

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

6

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 12 of 29

1 Design, testified that Taco Bell prototypes "are adapted locally by an architect to make

2 sure that they comply with local regulations. . . . [T]he construction manager's job is to

3 ensure that what was permitted [by local authorities] was what was built." Azalde

4 depo. at 26:19 — 27:2; 85:8-11 (architectural features such as seating layout and

5 dispensers are left up to local vendors); 66:21-24 ("The official way to do local

6 adaptations or renovations is for the restaurant manager to work with the facility

7 manager to execute a renovation."); 67:15-17 ("we leave it up now to local consultants

8 to design into the renovations all ADA requirements"). As Azalde further testified:

9

Q. Who at an individual restaurant would be responsible for ensuring

that a remodel complied with any applicable accessibility statutes?

10

A. In an individual case like that, we would be relying on the

11

consultant that was doing the plans or the supplier of the furniture that would be

retrofitted into the store.
12

13 Id. at 32:24 — 33:5. As the undisputed facts establish, decisions pertaining to the

14 challenged architectural features are not made on an institutional basis pursuant to a

15 centralized corporate policy. Thus, unlike the typical discrimination class action, this

16 case does not pose a challenge to a systemwide policy or practice of discrimination.

17

Equally important, there can be no dispute that Taco Bell's restaurants have

18 unique architectural styles and designs. In California, the 220 company-owned

19 restaurants encompass a multitude of architectural designs, based on approximately 30

20 different prototypes with different interior layouts and features.5 Ex. 3 to Fox. Decl.

21 Within each prototype, there are great variances in architectural features or elements.

22 Azalde depo. at 85:11-13 ("each particular prototype ha[s] an infinite number of seating

23 layouts and different types of condiment stations" and other architectural features). For

24 example:

25 By contrast, the Colorado case involved "only seven basic prototypes for Colorado restaurants" with inaccessible queue lines. Colorado Cross-Disability Coalition v.
26 Taco Bell Corp., 184 F.R.D. 354, 360 (D. Cob. 1999).

27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

7

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 13 of 29

1 • Some restaurants have queue lines less than 36 inches, others have queue lines

2

measuring 36 inches or more; some of the queue lines have right angle turns,

3

each with different turn widths; some have gradual "C" curves; and some

4

restaurants have no queue lines at all.

5 • The force required to open exterior entrances vary from store to store and from

6

day to day, depending on regularity of maintenance and weather conditions.

7 • The number of accessible tables, and the dimensions of those tables and floor

8

spaces, vary from store to store.

9 • The placement of condiment and drink dispensers as well as their reach and

10

height specifications differ from store to store.

11 • The size and layout of the restrooms, including floor clearances, and the

12

presence of lavatory fixtures and vanities vary from one store to another.

13 • The presence of parking or restroom signage is highly changeable, subject to

14

weathering, vandalism or removal by members of the public.

15 • The overall number of parking stalls, and the number and dimensions of

16

designated handicap parking spaces, vary from store to store.

17 • Some parking lots are located in common areas and are shared by other business

18

establishments, raising issues of control specific to those stores, and would

19

require joinder of landlords or other third-parties in the adjudication of liability.

20 Azalde Dccl. ¶1J6-10. The list goes on.
21
These wide-ranging variances amply demonstrate the lack of the commonality of 22
issues. Determining whether Taco Bell has acted or failed to act in a manner that
23
violates the ADA and the California statutes requires a highly individualized 24
assessment of each of those architectural features and elements in each of the 220
25
architecturally-diverse stores. It is impossible for the Court to issue an order that
26
would effectively address, across the board, the multitude of alleged "accessibility
27

28

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Plaintiff's Motion for Class Certification

8

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 14 of 29

1 barriers." Certifying a class based on a plethora of alleged accessibility violations

2 scattered across 220 locations would require an interminable parade of mini-trials, each

3 focused on the individualized proof of accessibility violations in each of those 220

4 stores. See Hall v. Burger King Corp., 1992 WL 372354, at *4 (S.D. Fla Oct. 26, 1992)

5 (class certification denied where court would have to conduct "hundreds of mini-trials"

6 to resolve numerous "discrete factual issues").6

7

Aside from the architectural disparities, the applicable legal standards are

8 different, warranting case-by-case determinations. Of the 220 California stores, many

9 were built and occupied after January 26, 1993 (the enactment of the ADA), placing

10 those stores under the more stringent "readily accessible" standard. Many other stores,

11 however, were built prior to the enactment of the ADA, and are governed under the less

12 stringent, more fact-intensive "readily achievable" standard. Under that standard,

13 barriers to access must be removed if it is readily achievable, meaning that such barrier

14 removal "is easily accomplishable and able to be carried out without much difficulty or

15 expense." 42 U.S.C. § 12181(9). What is "readily achievable" in one restaurant will

16 not necessarily be "readily achievable" in another. See Access Now v. S. Fla. Stadium,

17 161 F. Supp. 2d 1357, 1371 (S.D. Fla. 2001) ("readily achievable' is a fact-intensive

18 inquiry"). In addition, some of the pre-ADA stores have been remodeled since the

19 enactment of the ADA, and may be held to the "readily accessible" standard depending

20 on the nature and extent of the renovations—implicating yet again store-by-store fact

21 determinations. In light of these material differences, plaintiffs cannot establish that

22

23
6 Proof of the existence of the "access situation" alone is problematic. Each class 24 member would have to establish that the alleged barriers existed at the time of his visit.
See Arnold v. UnitedArtists Theatre Circuit, 158 F.R.D. 439, 453 (N.D. Cal. 1994). 25 Given that the barriers alleged by plaintiffs are not only multitudinous but also
encompass conditions that are non-static and transitory (such as door force and presence 26 of signage), the highly individualized assessment of each class member's encounter
with each alleged barrier during each visit to each restaurant would be interminable.
27

28

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Plaintiff's Motion for Class Certification

9

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1 their claims have common issues of law or fact to those sought to be asserted by the
2 class.

3

The California statutes pose the same hurdles. Under Title 24, certain

4 accessibility barriers (such as non-conforming parking spaces) are allowable when

5 complying with the regulations or providing equivalent facilitation would create an 6 unreasonable hardship. CAL. CODE REGS. tit. 24, § 101.17.11(4) (2003). These are 7 inherently fact-intensive, store-specific defenses. Likewise, the CDPA does not

8 consider a non-compliant architectural feature a violation of the Act if it is necessary to

9 comply with other existing laws. CAL. Civ. CODE § 54 (West 2003). The Court,

10 therefore, has to examine the interplay of various state and local laws as applied to

11 certain architectural features in certain localities.

12

This case is virtually identical to Access Now, Inc. v. Walt Disney World Co.,

13 211 F.R.D. 452 (M.D. Fla. 2001), where the plaintiff sought to certify a Rule 23(b)(2)

14 class of disabled individuals who had been denied "full and equal access to all of

15 Defendant's goods, services, and programs located at all of Defendant's facilities." Id.

16 at 453. Denying class certification, the court found in part that plaintiff failed to meet

17 the commonality element of Rule 23(a)(2) because it challenged a host of different

18 architectural features in multiple facilities. The court reasoned that "[t]he lack of

19 commonality of the architectural features of Defendant's facilities . . . weighs against 20 class certification." The court further reasoned that the facilities at issue were "each

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

22 some having been remodeled after the ADA." Because the Defendant's facilities

23 possess different architectural styles and features, and were built or remodeled at

24 different times, the court held that the "individualized nature of the facilities" precluded

25 a finding of commonality. Notably, the court distinguished Colorado Cross Disability

26 v. Taco Bell Corp., 184 F.R.D. 354 (D. Cob. 1999) ("the Colorado case") on the basis

27 that it involved solely "a uniform design flaw common to all of defendant's

28

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Plaintiff's Motion for Class Certification

10

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 16 of 29

1 restaurants." Id. at 455. See also Benner v. Becton Dickinson & Co., 214 F.R.D. 157,

2 164 (S.D.N.Y. 2003) (in action alleging negligent design of conventional needle

3 devises, the inclusion of "many different types of needle devises in [plaintiffs']

4 proposed class" precludes finding of commonality); In re Bridgestone/Firestone, Inc.,

5 289 F.3d 1102, 1120 (7th Cir. 2002) (holding that the different tires alleged to be

6 defective — each with different diameters, widths, and tread designs — negates

7 commonality).

8

The authorities cited by plaintiffs holding that commonality is satisfied by

9 broadbrush allegations of discrimination are unpersuasive for two reasons. One, they

10 fail to satisfy the heightened standard for certification set forth by the Supreme Court in

11 Falcon, 457 U.S. 147 (1982). Two, they do not involve multiple locations with

12 different floor plans (and therefore, different alleged architectural barriers) occupied 13 both before and after January 26, 1993 (and therefore, subject to different legal 14 remedies). Cf Berlowitz v. Nobb Hill Masonic Mgmt., 1996 WL 724776 (N.D. Cal. Dec

15 6, 1996) (single location); Leiken v. Squaw Valley Ski Corp., 1994 WL 494209 (E.D. 16 Cal. 1994) (single location); Civic Ass'n of the Deaf V. Giuliani, 915 F. Supp. 622 17 (S.D.N.Y. 1996) (uniform removal of alarm boxes); Bates v. United Parcel Serv., 204

18 F.R.D. 440 (N.D. Cal. 2001) (challenging systemwide policy adversely affecting deaf

19 individuals). Those fact-specific cases are, therefore, inapposite.

20

Finally, the damages sought by plaintiffs—based on the number of violations

21 per class member—require particularized findings for each class member. Cf Duprey 22 v. Conn. Dep't of Motor Vehicles, 191 F.R.D. 329, 331 (certifying class of disabled 23 persons seeking injunctive relief and award of set fee per class member, not per

24 violation). Additionally, although plaintiffs are seeking the minimum statutory 25 damages per offense, the damage claims of putative class members would potentially 26 include deterrence damages. Under the Unruh Act, an aggrieved individual is entitled

27 to the statutory remedies not only for damages flowing from actual visits but also based

28

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Plaintiff's Motion for Class Certification

11

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 17 of 29

on incidents of deterrence. Arnold v. United Artists Theatre Circuit, 866 F. Supp. 433, 439 (N.D. Cal. 1994). Such deterrence claims raise individual-specific issues, implicating determinations of individualized intent and state of mind. For this

additional reason, plaintiffs cannot satisfy the commonality element, and class certification should be denied. See Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679

(S.D. Cal. 1999) (where complex damages questions are inextricably intertwined with issues of law, class certification is not appropriate).

B. Plaintiffs Cannot Satisfy The "Numerosity" Requirement of Rule 23(a)(1).
To satisfy the numerosity requirement, plaintiffs "must first adequately define
the class and then establish that it is so numerous that joinder of all members is
impracticable." Schwartz, 178 F.R.D. at 549. Plaintiffs have failed to fulfill either of

these prerequisites. Plaintiffs rely on nothing more than overbroad census data to discharge their

burden of showing that the putative class is so numerous that joinder is impracticable.

Citing census figures indicating that there are over 150,000 non-institutionalized

wheelchair users in the entire state of California, and making a logical leap to the proposition that these individuals frequent Taco Bell restaurants, plaintiffs invite this

Court to use "common sense" in assuming that joinder would be impracticable. Plaintiffs Motion at 16. Such raw population data is insufficient to establish

numerosity. See, e.g., Green v. Borg-Warner Protective Servs. Corp., 1998 WL 17719, at *1.4 (S.D.N.Y. Jan. 16, 1998) (rejecting census data on overall population of shelter residents because plaintiffs failed to link the population data to an actual violation of

rights).7

' See also Mazus v. Dep 't of Transp., 489 F.Supp. 376, 378 n.3, 3 87-88 (M.D. Pa. 1979)

affdin relevant part, Mazus v. Dep't of Transp., 629 F.2d 870, 875-876 (3rd Cir. 1980) (denying class certification for lack of numerosity where plaintiff relies on overly broad

census data); Jeffries v. Pension Trust Fund, 172 F.Supp.2d 389, 394 (S.D.N.Y. 2001) (overall number of laid off employees does not establish numerosity absent evidence

Case No. C 02 5849 MJJ ADR

.(cont'd)

Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification 12

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 18 of 29

1

Such an assumption is also inconsistent with the uncontroverted facts in this

2 case. Although the plaintiffs profess to be active advocates in the mobility-impaired

3 community in California, they are personally unaware of other similarly-situated

4 individuals who have encountered accessibility problems at Taco Bell restaurants. E.g.

5 Muegge depo. at 120:7-14 (has not had any conversations with other mobility-impaired

6 individuals, except plaintiff Moeller, about accessibility issues at Taco Bell restaurants)

7 (Ex. C to Goh Decl.); Yates depo. at 74:18-21 (does not know if any other wheelchair

8 users have encountered access issues at Taco Bell restaurants) (Ex. D to Goh Deci.). As

9 plaintiff Corbett admits:

10

Q. But have you heard about or learned about experiences of others who use

wheelchairs where they've had - believe that they've had access problems at Taco

11

Bell?

12

A. I don't remember.

13

Q. You can't think of any as you sit here today?

14

A. Right.

15
Corbett depo. at 27:12-18 (Ex. E to Goh Deci).
16

17

Plaintiff Yates joined this lawsuit because he saw a notice in a newsletter of an

18 organization that advocates for disabled persons, inviting mobility-impaired individuals 19 who have experienced accessibility problems at Taco Bell restaurants to contact Mr.

20 Tim Fox. Yates depo. at 13:4-8. There is no evidence, however, that any other

21

22 (cont'd)
that those employees suffered the alleged injury; although the court may make common 23 sense assumptions to support a finding of numerosity, it cannot do so "on the basis of
pure speculation without any factual support"); Legrand v. New York City Transit Auth., 24 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 relation to the 25 number of such women who suffered pregnancy discrimination); Ross, 133 F.R.D. at 97
(holding that statistical data must show a statistically significant number of similarly 26 situated aggrieved employees in relation to the overall number of employees in the
company). 27

28

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Plaintiff's Motion for Class Certification

13

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 19 of 29

1 mobility-impaired individual has contacted Mr. Fox as a result of the publication of the

2 notice. In addition, plaintiffs have been able to identify only 10 putative class members

3 (excluding the named plaintiffs) despite a notice posted on a web-site inviting

4 participation in this lawsuit. Responses to Defendant's First Set of Interrogatories And

5 Requests For Production of Documents to Plaintiffs at 4-6 (Ex. F to Goh Decl).

6

Because the plaintiffs themselves can identify only a small handful of individuals

7 who have allegedly encountered access issues at the 220 Taco Bell locations in

8 California, despite the use of website and newsletter notices, there is no basis for

9 assuming that the class is so large that joinder is impracticable. Plaintiffs have,

10 therefore, failed to establish the requisite numerosity. Stambaugh, 151 F.R.D.at 675

11 (certification denied due to plaintiffs failure to provide evidence from statistically

12 significant number of aggrieved persons in putative class).

13

C. Plaintiffs' Have Failed To Satisfy The "Typicality" Requirement Of

Rule 23(a)(3).

14

15

The typicality requirement of Rule 23(a) "does not focus as much on the relative

16 strengths of the cases of the named and unnamed plaintiffs as it does on the similarity

17 of the legal and remedial theories behind their claims." Neff v. VIA Metro. Transit

18 Auth., 179 F.R.D. 185, 193 (W.D. Tex. 1998); Berlowitz, 1996 WL 724776, at *3 See

19 also Lightbourn v. County of El Paso, 118 F.3d 421, 425 (5th Cir. 1997). As

20 demonstrated in the discussion regarding the lack of commonality among plaintiffs'

21 claims and those of the putative class, plaintiffs cannot establish that their claims are

22 based on similar legal and remedial theories as those sought to be asserted by the class.

23 Because each of the stores has a unique set of characteristics related to architectural

24 features, prototype, occupancy date, and the like, the claim and remedy sought by each 25 plaintiff will vary according to each store. As a result, plaintiffs cannot establish that

26 their claims are typical of those of the class.

27

28

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Plaintiff's Motion for Class Certification

14

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 20 of 29

1

D. Plaintiffs Have Failed To Satisfy The "Adequate Representation"

Requirement of Rule 23(a)(4).

2

3

Adequate representation, within the meaning of Rule 23(a)(4), requires named

4 plaintiffs who are "knowledgeable as to the status and underlying legal basis of the

5 action, . . . willing and able to pay notification and other costs [and to] diligently pursue o their claims, and [whose] interests are not antagonistic to the interests of the class." In 7 re Storage Tech. Corp. Sec. Litig., 113 F.R.D. 113, 118 (D. Cob. 1986). Courts have

8 uniformly held:

9

The class is entitled . . . to more than competent counsel. It must also be assured

that it will have an adequate representative, one who will check the otherwise

10

unfettered discretion of counsel in prosecuting the suit and who will provide his

personal knowledge of the facts underlying the complaint. . . . The class is

11

entitled to a representative who is more than 'a key to the courthouse door

dispensable once entry has been effected.'

12

13 Weisman v. Darneille, 78 F.R.D. 669, 671 (S.D.N.Y. 1978) (quoting Saylor v. Lindsley,

14 456 F.2d 896, 900 (2d Cir, 1972)); In re Goldchip Funding Co., 61 F.R.D. 592 (M.D.

is Pa. 1974) ("The class is entitled to more than blind reliance upon even competent
16 counsel An attorney who prosecutes a class action with unfettered discretion
17 becomes, in fact, the representative of the class. This is an unacceptable situation

18 because of the possible conflicts of interest involved.").

19

Here, in a case where they must prove violations of the ADA and the California

20 statutes, plaintiffs have demonstrated that they have no knowledge that any of the

21 alleged accessibility barriers constitutes a violation of those laws. To begin with, 22 plaintiff Corbett does not even know what the Unruh Act is, or "the difference between

23 a class action and a lawsuit." Corbett depo. at 10:17-18; 11:1-2. Although she 24 challenges the legality of alleged accessibility barriers at various Taco Bell restaurants,

25 she has no knowledge of whether those alleged barriers violate the applicable laws. For

26 example, although she complains that the door at the Richmond restaurant felt "heavy,"

27 she conceded that she "wouldn't know" if the force of the door exceeded the legal limit.

28

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Plaintiff's Motion for Class Certification

15

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 21 of 29

1 Id. at 40:11-14. Likewise, despite alleging that the condiment and drink dispensers

2 were inaccessible, she testified:

3

Q. Do you know whether the reach distances for each of those tasks

were in compliance with the regulations or not?

A. I wouldn't know.
5

6 Id. at 45:7-10. The same holds true on her allegation that the toilet in the store at San

7 Pablo Dam Road was too low:

8

Q. Do you know whether [the toilet] was in compliance with the

9

applicable regulations?

A. I wouldn't know that.
10

11 Id. at 48:21-23. Again, with respect to Corbett's allegation that there was insufficient

12 floor space to maneuver her wheelchair in the dining room:

13

Q. Do you have an opinion as to whether the space in which you were

trying to maneuver presented some violation of applicable regulations?

14

A. I don't know.
15

16 Id. at 50:20-23. See also id. at 3 5:7-11 (does not even have an estimate of the

17 dimensions of the parking stall that she complains about); 48:11-16 ("wouldn't know"

18 if entrance at San Pablo Dam store violated laws); 72:20-23 ("wouldn't know" if 19 entrance at Rohnert Park restaurant was in compliance or not); 86:14-18 (complains

20 about inaccessible seating but "do[es]n't know" if the number of accessible tables in

21 dining room satisfies regulations); 87:4-7 ("do[es]n't know" if force of restroom door

22 complies with regulations); 88:8-12 (has "no idea" of reach distance in restroom and

23 whether it violates regulations); 88:25 — 89:3 (no knowledge of whether outdoor seating 24 violates regulations).

25

Plaintiff Yates similarly alleges that he has encountered accessibility barriers at

26 Taco Bell restaurants but has no idea if those alleged barriers violate any laws.

27 Although he complains about inaccessible seating at the Novato store, he admits that he

28

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Plaintiff's Motion for Class Certification

16

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 22 of 29

1 has never counted the number of accessible tables and chairs in that store, Yates depo. 2 at 45:20-22. He complains that accessible seating is located in traffic areas, but has 3 never surveyed the dining room to determine if accessible seating exists in other areas.

4 Id. at 46:2-8. Indeed, Yates concedes that he has never even used, or attempted to use, 5 the accessible tables in the Novato store. Id. at 46:15:19. See also id. at 63:12-20 6 (claims that the drink dispenser is "too high" but has no knowledge of its height); 7 42:13-15 (doesn't know if signage on restroom door was in compliance with laws); 8 26:11-13 (doesn't know the amount of pressure needed to open front door).

9

Plaintiff Muegge presently lives in Hawaii, and plans to visit California only

10 "once every six months." Muegge depo. at 35:21-25. He too lacks personal knowledge

11 of whether his encounters with alleged barrier constitute violations of the applicable

12 laws. See Muegge depo. at 55:4-6 ("would not" know if door complies with

13 regulations); 59:25 — 60:5 (same for drink dispensers); 110:20-22 (does not know if

14 seating complies with regulations); see also Id. at 79:15-18; 83:1-3; 88:23 — 89:1;

15 90:18-20; 92:14-16; 110:10-12; 111:18-20; 115:2-9; 116:7-10.

16

Plaintiff Moeller's deposition testimony is similarly replete with disavowals of

17 any knowledge that the alleged barriers constitute violations, Moeller depo. at 40:16-

18 20;42:18-22;56:17-19;63:2-3;68:7-9;74:23—75:3;81:11-13;82:10-14(Ex.GtoGoh

19 Decl).

20

As their own testimony reveals, the plaintiffs present nothing more than their

21 own vague generalized notions that they encountered barriers to access at Taco Bell

22 restaurants. They have no personal knowledge that the alleged barriers constitute

23 violations of the ADA or the California statutes—and therefore cannot satisfy the most

24 fundamental element of their claims. Absent any such knowledge, plaintiffs are

25 inadequate class representatives. Indeed, their inadequacy as class representatives is

26 nowhere more evident than in class counsel's attempt to offer evidence based on his

27 personal observations of alleged barriers at Taco Bell stores. See Fox Decl. ¶IJ 5-10.

28

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Plaintiffs Motion for Class Certification

17

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 23 of 29

1 Taco Bell does not dispute Mr. Fox's adequacy as class counsel, but he cannot become 2 a class representative to fill in the evidentiary void created by the plaintiffs. See

3 Kassover v. Computer Depot, Inc., 691 F. Supp. 1205, 1213-14 (D. Minn. 1987) 4 (plaintiff who was "unfamiliar with several critical aspects of this litigation" and who

5 "possesse{d] no facts to support essential allegations in his complaint" deemed 6 inadequate class representative). See also Greenspan v. Brassier, 78 F.R.D. 130, 133-

7 34 (S.D.N.Y. 1978) (plaintiffs' "limited personal knowledge" of the underlying facts 8 and certain elements of the complaint renders them inadequate representatives); Rolex 9 Employees Ret. Trust v. Mentor Graphics Corp., 136 F.R.D. 658, 665-66 (D. Ore. 1991) 10 (denies class certification in part because plaintiff has failed to show that he has

11 sufficient familiarity with the "basic elements of the case"); In re Storage Technology, 12 113 F.R.D. at 118 (finding plaintiffs who were "unaware of even the most material

13 aspect of [the] action" to be inadequate representatives).

14

In addition, plaintiffs have presented no evidence that they have the financial

15 resources to litigate this action. To the contrary, Yates, for example, does not even

16 know if he is able to pay any of the costs associated with this case. Yates depo. at 77:3-

17 5. To satisfy Rule 23(a)(4), the named representatives must be in a position to "check

18 the otherwise unfettered discretion of counsel in prosecuting the suit,' not only with

19 respect to the facts but also with respect to the economic consequences of the suit." 20 Rolex Employees Ret. Trust, 136 F.R.D. at 666. A class representative who is not

21 financially invested leads to the attorney having "free rein" of the prosecution of the 22 action. Id. As one court aptly declared: "This is tantamount to the unacceptable

23 situation of the attorney being a member of the class of litigants while serving as class

24 counsel." In re Mid-Atlantic Toyota Antitrust Litig., 93 F.R.D. 485, 490 (D. Md. 1982).

25 Plaintiffs' failure to establish that they have the financial resources and investment in

26 this case to allow them to check the actions of counsel mandates a finding that they are

27 not adequate representatives for the class under Rule 23(a)(4).

28

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Plaintiff's Motion for Class Certification

18

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 24 of 29

1

II. PLAINTIFFS ALSO CANNOT SATISFY THE REQUIREMENTS OF

2

RULES 23(b).

3
Plaintiffs assert that the class they seek to represent should be certified under
4
Rule 23(b)(2). The requirements of Rule 23(b) are designed to test whether there are

compelling circumstances to make the class action appropriate. Reilly v. Gould, Inc.,

965 F. Supp. 588, 596 (M.D. Pa. 1997).
7
As discussed above, plaintiffs have failed to satisfy the threshold requirements
8
for certification of Rule 23(a), thereby defeating certification. Although their failure is
9
dispositive on the issue of certification, Taco Bell also will analyze the requirements of
10
Rules 23(b), and demonstrate that plaintiffs have failed to satisfy the additional, but
11
necessary, requirements to certification.
12
A. Plaintiffs' Claims Preclude Certification Under Rule 23(b)(2).
13

14

To certify this action under Rule 23(b)(2), this Court must find that "the party

15 opposing the class has acted or refused to act on grounds generally applicable to the

16 class, thereby making appropriate final injunctive relief or corresponding declaratory 17 relief with respect to the class as a whole." "A class of cases found to fall squarely 18 within the category authorized by subpart (b)(2) are civil rights cases which seek 'broad 19 declaratory or injunctive relief for a large and amorphous class" based on systemwide

20 discriminatory policies or practices. Neff, 179 F.R.D. at 195.

21

Certification under Rule 23(b)(2) is not appropriate in this action for at least two

22 reasons. First, the class is not "large and amorphous." As discussed above with regard

23 to plaintiffs' failure to satisfy the numerosity requirement, the various notices and

24 invitations to participate in this lawsuit have produced only 14 individuals, all of whom

25 have been readily identified and four of whom are already parties to this action.

26 Joinder of the remaining individuals is clearly not impracticable.

27

28

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Plaintiff's Motion for Class Certification

19

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 25 of 29

1

Second, this action does implicate a systemwide corporate policy, as discussed

2 previously. In Lang v. Kansas City Power & Light Co., 199 F.R.D. 640, 648 (W.D. Mo.

3 2001), the court held that Rule 23(b)(2) certification is "properly invoked when a policy

4 or practice is challenged, and injunctive or declaratory relief is necessary to prohibit or

5 change the policy or practice." Finding that the claims "do not arise from official

6 company policy directed toward [plaintiffs], but rather from separate, discrete events"

7 scattered across various locations, the court denied class certification. Id. Likewise,

8 plaintiffs' claims here arise from separate and distinct alleged discriminatory conditions

9 at separate and distinct locations, not from any official corporate policy aimed at the

10 plaintiffs. For these reasons, class certification under Rule 23(b)(2) is improper.

11

B. Plaintiffs' Claims For Substantial Money Damages Require Analysis

Under Rule 23(b)(3), Which Further Defeats Class Certification

12

13

Aside from plaintiffs' failure to meet the requirements of Rule 23(a) and (b)(2),

14 plaintiffs' motion suffers from an additional infirmity. The Ninth Circuit, in Mo/ski v.

15 Gleich, 318 F.3d 937 (9th Cir. 2003), recently held that an accessibility action based on

16 Title III of the ADA, the Unruh Act and the CDPA which seeks statutory damages

17 cannot be certified under Rule 23(b)(2) unless the class members are afforded adequate

18 notice and opt-out rights. In so holding, the Ninth Circuit, along with certain other

19 federal courts, have imposed a defacto Rule 23(b)(3) requirement for class actions such

20 as this, which seeks both injunctive relief and substantial money damages.8

21

The Ninth Circuit in Mo/ski aligned itself with the approach taken by the Second

22 Circuit in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001)

23

24 8 As early as 1982, the Ninth Circuit has recognized that some class actions certified under Rule 23(b)(2) are effectively defacto Rule 23(b)(3) class actions. See Officers
25 for Justice v. Civil Serv. Comm 'n of San Francisco, 688 F.2d 615, 634 (9th Cir. 1982) (breadth and nature of plaintiff's claims and the procedures adopted by district court in
26 certifying class under Rule 23(b)(2) essentially converted case to Rule 23(b)(3) class
action). 27

28

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Plaintiff's Motion for Class Certification

20

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 26 of 29

1 cert denied, 535 U.S. 951, 122 S.Ct. 1349 (2002), which permits certification under rule

2 23(b)(2) only if the district court, "in its informed sound discretion finds that: (1) the

3 positive weight or value [to the plaintiffs] of the injunctive or declaratory relief sought

4 is predominant even though compensatory or punitive damages are also claimed; and

5 (2) class treatment would be manageable, thereby achieving an appreciable measure of

6 judicial economy." Robinson, 267 F.3d at 164 (internal citations and quotations

7 omitted).9 This analysis adopted by Molski is the functional equivalent of Rule

8 23(b)(3)'s requirements. See Molski, 318 F.3d at 950-51 n.15 & n.16 (determining

9 predominance by balancing the value of injunctive relief against the value of money

10 damages, and implicitly assessing manageability of class action in its conclusion that

11 the class could also have been certified under 23(b)(3)). Here, although plaintiffs seek

12 to certify a Rule 23(b)(2) class, which by definition does not require notice or opt-out

13 rights to class members, Molski's holding that notice and opt-out rights are mandatory

14 in a case like this effectively imposes Rule 23(b)(3) requirements upon plaintiffs—

15 which they cannot satisfy.

16

The first prong of Rule 23(b)(3), the "predominance" test, requires Plaintiffs to

17 establish that "questions of law or fact predominate over any questions affecting only

18 individual members." For the reasons that plaintiffs have failed to establish

19 commonality under Rule 23(a)(2), they would all the more fail to meet Rule 23(b)(3)'s

20 more demanding standard that common issues predominate over individual issues. See

21 Amchem Products, 521 U.S. at 624.

22

23
These requirements for certification of Rule 23(b)(2) class actions seeking money 24 damages serve the same functions as the procedural safeguards and manageability or
efficiency standards of Rule 23(b)(3). See Zinser, 253 F.3d at 1190 ("Implicit in the 25 satisfaction of the predominance test is the notion that the adjudication of common
issues will help achieve judicial economy); Coleman v. Gen. Motors Acceptance Corp., 26 296 F.3d 443, 448 (6th Cir. 2002) (applying advisory committee's discussion of Rule
23(b)(3) to certification under Rule 23(b)(2) when money damages are sought). 27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

21

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 27 of 29

1

The second prong of Rule 23(b)(3), commonly referred to as "superiority," is

2 that "a class action is superior to all other forms of fair and efficient adjudication." A

3 superiority analysis may encompass review of several factors including whether: (a)

4 the value of individual claims is so low that individuals are discouraged from filing

5 their own claims ("negative value suit"); (b) the case is unmanageable as a class action 6 thereby defeating the interests of judicial economy. Zinser, 253 F.3d at 1190-91. The

7 most compelling factor in a superiority determination is whether aggregation of the

8 claims of putative class members overcomes the problems of "negative value suits."

9 Amchem Products, 521 U.S. at 617; see also Zinser, 253 F.3d at 1191. In fact, the

10 United States Supreme Court has noted:

11

The policy at the very core of the class action mechanism is to overcome

the problem that small recoveries do not provide the incentive for any

12

individual to bring a solo action prosecuting his or her rights. A class

action solves this problem by aggregating the relatively paltry potential

13

recoveries into something worth someone's (usually an attorney's) labor."

14
Amchem Products, 521 U.S. at 617, (quoting Mace v. Van Ru Credit Corp., 109 F.3d
15
338, 344 (1997). Claims under CDPA and the Unruh Act, however, have substantial
16
value to persons allegedly aggrieved by barriers to access, each providing for treble
17
actual damages or minimal statutory damages per violation, and attorneys' fees. CAL.
18
CIV. CODE § 52(a), 54.3(a); see Castano v. American Tobacco Co., Inc., 84 F.3d 734,
19
748 (5th Cir. 1996). Therefore, class treatment is unnecessary to provide Plaintiffs and
20
putative class members recovery for their claims. 0 'Conner v. Boeing N. America, Inc.,
21
197 F.R.D. 404, 415 (C.D. Cal. 2000).
22
Manageability is also a critical factor in the superiority analysis. Eisen v.
23
Carlisle & Jacqueline, 417 U.S. 156, 164 (1974). Individualized issues pertaining to 24
every class member complicate a case to such a degree that class treatment is inefficient
25
and unmanageable. Courts have routinely held that where "the complexities of class
26
treatment outweigh the benefits of considering common issues at trial, class action
27

28

Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

22

Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 28 of 29

1 treatment is not the 'superior' method of adjudication." See e.g. Zinser, 253 F.3d at 2 1192. Here, aside from the individualized issues that abound in this case, requiring 3 mobility-impaired individuals to travel from all parts of California to adjudicate claims

4 in San Francisco further renders class treatment inappropriate.

5

CONCLUSION

6

For all the foregoing reasons, Plaintiffs' Motion for Class Certification should be

7 denied.

8

HOLLAND & HART LLP

9 10

ciL2t

11

12 Date: October 1, 2003.
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Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

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Case 3:02-cv-05849-PJH Document 65 Filed 10/01/2003 Page 29 of 29

1

PROOF OF SERVICE VIA E-MAIL

2 STATEOFCOLORADO

3 CITY AND COUNTY OF DENVER

4

age

of

I am employed in the 18, and not a party to

CthietywainthdinCoauctnitoyn;ofmDyebnuvseinr,esSstaatdedorefsCs oislo5r5a5do—, alm7evSetrretehte,

5 Suite 3200, Denver, CO 80202. On the date below indicated, I served on the interested

parties in this action the within document(s) described as:

6 Defendant's Response Brief in Opposition to Plaintiffs' Motion for Class

7 Certification

8 X (BYE-MAIL)to:

9

Timothy P. Fox, Esq.

tfox@foxrob. corn

10
I declare that I am employed in the office of a member of the Bar of this Court at

11 whose direction service was made.

12

I declare under penalty of perjury under the laws of the State of Colorado that

the above is true and correct, and that this d claration was executed on October 1, 2003.

16 3138296_2.DOC

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Case No. C 02 5849 MJJ ADR Defendant's Response Brief in Opposition to

Plaintiff's Motion for Class Certification

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 Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 1 of 19

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9 FRANCIE E. MOELLER et al,

10 Plaintiffs,
11 v.
12 TACO BELL CORP.,
13 Defendant.
14

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

Date: Time:

October 21, 2003 9:30 a.m.

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Case No. C 02 5849 MJJ ADR Plaintiffs’ Reply Brief in Support of Their Motion for Class Certification

Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 2 of 19

1

TABLE OF CONTENTS

2 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4 I. Defendant Has Highly Centralized Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 II. The Differences in Defendant’s Restaurants are Largely Irrelevant . . . . . . . . . . . . . . . 3

6 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7 I. This Case Should Be Tried as a Class Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8 II. Defendant’s Commonality Argument Must Be Rejected . . . . . . . . . . . . . . . . . . . . . . . 5

9

A. Commonality is not Defeated by Alleged Differences in Defendant’s

Restaurants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10

B. The Requirements of Falcon are Easily Met in this Case. . . . . . . . . . . . . . . . . . 7

11

C. The Class Shares Common Legal Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12

III. Named Plaintiffs Have Met the Numerosity Requirement. . . . . . . . . . . . . . . . . . . . . . 10

13

IV. Named Plaintiffs Will Adequately Represent the Class. . . . . . . . . . . . . . . . . . . . . . . 12

14

V. The Proposed Class Satisifes Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Case No. C 02 5849 MJJ ADR Plaintiffs’ Reply Brief in Support of Their Motion for Class Certification
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1

TABLE OF AUTHORITIES

2

Cases

3 Access Now, Inc. v. Walt Disney World Company, 211 F.R.D. 452 (M.D. Fla. 2001) . . . . . . 7

4 Adamson v. Bowen, 855 F.2d 668 (10th Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

6 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) . . . 6, 9, 10, 12

7 Bates v. United Parcel Service, 204 F.R.D. 440 (N.D. Cal. 2001) . . . . . . . . . . . . . . . . . . . . . 12

8 Berlowitz v. Nob Hill Masonic Management, Inc., No. C-96-0141 MHP, 1996 WL 724776

(N.D. Cal. Dec. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

9

Califano v. Yamasaki, 442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

Colorado Cross-Disability Coalition v. Taco Bell Corporation, 184 F.R.D. 354

11

(D. Colo. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12 Gratz v. Bollinger, 123 S. Ct. 2411 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

13 Green v. Borg-Warner Protective Services Corporation, Nos. 95 Civ. 10419(RPP), 96 Civ.

0038(RPP), 95 Civ. 5558(RPP), 96 Civ. 8740(RPP), 1998 WL 17719

14

(S.D.N.Y. Jan. 16, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

15 General Telephone Company of the Southwest v. Falcon, 457 U.S. 147 (1982) . . . . . . . 5, 7, 8

16 Hanlon v. Chrysler Corporation, 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 6

17 In re Catfish Anitrust Litigation, 826 F. Supp. 1019 (N.D. Miss.1993) . . . . . . . . . . . . . . . . . 13

18 In re West Coast Department Stores Antitrust Litigation, Civil No. C-79-2724 SW, 1979 WL 1721 (N.D. Cal. Nov. 16, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19

Kaplan v. Pomerantz, 131 F.R.D. 118 (N.D. Ill. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20

Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK and CIV. S-93-1622 LKK, 1994

21

U.S. Dist. LEXIS 21281 (E.D. Cal. June 28, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

22 Lieber v. Macy’s West, Case No. C-96 02955 MHP (BZ) (N.D. Cal.) . . . . . . . . . . . . . . . . . . 12

23 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
24 Paper Systems Inc. v. Mitsubishi Corporation, 193 F.R.D. 601 (E.D. Wis. 2000) . . . . . . . . . 13 25
Sanderson v. Winner, 507 F.2d 477 (10th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 26
Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) . . . . . . . 6 27
Surowitz v. Hilton Hotels, Inc., 383 U.S. 363 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28
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1 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2

Statutes

3 42 U.S.C. 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4 42 U.S.C. 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

5 Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

6
Regulations and Other Authorities 7

8 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9 Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A . . . . . . . . . . . . . . . . . passim 10 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 11 7A Charles Alan Wright et al., Federal Practice & Procedure § 1763 (2d ed. 1986) . . . . . . . . 6 12 7A Charles Alan Wright et al., Federal Practice & Procedure § 1775 (2d ed. 1986) . . . . . . 15 13 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 14

15

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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 Attorneys for Plaintiffs

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9 FRANCIE E. MOELLER et al,

10 Plaintiffs,
11 v.
12 TACO BELL CORP.,
13 Defendant.
14

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

Date: Time:

October 21, 2003 9:30 a.m.

15

16

Plaintiffs’ Motion for Class Certification (“Opening Brief” or “Opening Br.”)

17 demonstrated that the accessibility barriers at issue in this litigation are widespread throughout

18 Defendant’s corporate restaurants. In its Response Brief in Opposition to Plaintiffs’ Motion for

19 Class Certification (“Defendant’s Response” or “Def.’s Resp.”), Defendant does not dispute

20 this. Rather, Defendant seeks to apply class certification requirements that are not supported

21 by Rule 23 or precedent and that are contrary to the numerous cases in the Ninth Circuit and

22 elsewhere that have certified classes identical in all relevant respects to the proposed class in

23 this case. Because Named Plaintiffs have demonstrated that the proposed class meets the

24 requirements of Rules 23(a) and 23(b)(2), the class should be certified.

25

ISSUES TO BE DECIDED

26

Whether the proposed class in this case should be certified pursuant to Rules 23(a) and

27 23(b)(2) of the Federal Rules of Civil Procedure.

28
Case No. C 02 5849 MJJ ADR Plaintiffs’ Reply Brief in Support of Their Motion for Class Certification

Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 6 of 19

1

FACTS

2 I. Defendant Has Highly Centralized Policies.

3

Named Plaintiffs demonstrated in their Opening Brief that Defendant’s accessibility

4 policies, and its design and construction policies, are centralized.

5

Defendant does not dispute that its accessibility policies are centralized, but it contends

6 that its design and construction policies are not centralized because “ultimate decisions

7 affecting the design, layout and architectural features of a given store are made on an

8 individualized basis by local managers and consultants . . .” (Def.’s Resp. at 6.) This

9 contention is highly misleading because it relies on testimony discussing only one type of 10 construction project: small remodeling projects at individual restaurants.1

11

Defendant’s policies governing other types of construction at Taco Bell -- including

12 construction of new restaurants and multi-restaurant retrofit projects -- are highly centralized.

13

All newly-constructed Taco Bell restaurants are built in accordance with prototypes

14 designed by the A&E department (located at Taco Bell’s corporate headquarters), and all large-

15 scale retrofit projects are based on designs in “project books” prepared by the A&E department.

16 (Deposition of Carlos Daniel Azalde (“Azalde Dep.”) at 18:14-20; 20:11-14; 30:11-18 (ex. 17 1).)2 Taco Bell then convenes meetings with its construction managers and facilities managers

18 -- all of whom are employed by Taco Bell or its parent company, Yum!, Inc. -- to familiarize

19 them with the prototypes or project designs, who then oversee the construction projects to

20 make sure that they are done in compliance with the designs. (Azalde Dep. at 26:13-27:2;

21

22

1

For example, the indented quote from Mr. Azalde’s testimony on page seven of

23 Defendant’s Brief is from a line of questions that began as follows:

24

Q: Moving on now to individual restaurants remodeling retrofits, were there any

policies in place at Taco Bell Corporation to ensure that the applicable statutes

25

or regulations concerning accessibility were met during that remodel of these

individual restaurants?

26 Azalde Dep. at 32:12-17 (ex. 1).

27

2

All references to exhibit numbers throughout the brief refer to Exhibits to the

28 Second Declaration of Timothy P. Fox, filed concurrently with this brief.

Case No. C 02 5849 MJJ ADR

Plaintiffs’ Reply Brief in Support of Their Motion for Class Certification
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 7 of 19

1 27:24-28:16; 31:19-24 (ex. 1).) Contrary to Defendant’s implication, local contractors do not

2 have the discretion to make any material modifications to these designs:

3

Q. You send out a prototype that calls for level entrances into the Taco Bell

restaurant. The contractor, at the local level, decides to change the plans to

4

insert steps with no ramps at all entrances. Is there something in place that

would stop that from happening?

5

A. Yeah. The construction manager is there to ensure, again, that what’s built is

6

for what was permitted. So the contractor can't take it upon himself to revise

designs. The contractors generally will cut corners in which a construction

7

manager should be able to catch deletions or omissions.

8 (Azalde Dep. at 27:11-23 (ex. 1)(emphasis added).)

9

In light of the relief sought in this case, it is Defendant’s policies concerning new

10 construction and large-scale retrofit projects that are relevant. Named Plaintiffs seek an

11 injunction requiring Taco Bell to build new restaurants in compliance with the Department of 12 Justice Standards for Accessible Design (“DOJ Standards”)3 and Title 24 of the California

13 regulatory code (the “California Standards”), and to retrofit its existing restaurants so that they

14 comply with these Standards. The fact that Taco Bell already has a centralized system in place

15 governing new construction and large retrofit projects makes it particularly appropriate that the

16 architectural barriers at its restaurants be addressed on a systemic, class-wide basis.

17 II. The Differences in Defendant’s Restaurants are Largely Irrelevant.

18

Defendant contends that alleged differences in the physical layout of its restaurants

19 means that “[c]ertifying a class based on a plethora of alleged accessibility violations scattered

20 across 220 locations would require an interminable parade of mini-trials . . .” (Def.’s Resp. at

21 9.) This is wrong. Defendant does not explain how the alleged differences in restaurant

22 layouts are relevant to the issues in this case, or why the alleged differences would require a

23 “parade of mini-trials.” To the contrary, the issues here will largely be able to be resolved

24 through a few key legal decisions that can then be applied in Defendant’s restaurants with a

25 tape measure.

26

27

28

3

See 28 C.F.R. pt. 36, app. A.

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1

Take, for example, queue lines. Defendant claims that the alleged differences between

2 queue lines in its restaurants is one reason why numerous mini-trials will be needed. (Def.’s

3 Resp. at 8-9.) But, as Named Plaintiffs demonstrated in their Opening Brief, all of Defendant’s

4 queue lines installed before the early 1990s were narrower than 36 inches. (Opening Br. at 12.)

5 This violated the California Standard in effect then and now that required cafeteria lines to be

6 at least 36 inches wide, and this Standard has no exceptions based on the configuration of the

7 queue line or the layout of the restaurant. (Id.) Thus a single decision by this Court on this

8 point will apply to all restaurants with queue lines narrower than 36 inches without the need for

9 separate mini-trials. Similarly, from the early 1990s until approximately 1998, the width at the

10 turn in queue lines was only 42 inches, instead of 60 inches as required by the Standards. (Id.)

11 Thus a decision by this Court on this issue will apply to a large number of restaurants.

12

This is also true with respect to, for example, the accessibility of Defendant’s parking

13 lots, which can be determined by a single ruling. Both sets of Standards require that alterations

14 strictly comply with applicable accessibility requirements. (See Opening Br. at 5-6.) In

15 December 1997, Taco Bell conducted a project to restripe and repair the parking lots at all of

16 its corporate restaurants, and this project was supposed to include a review and correction of

17 accessible parking. (Id. at 13.) Pursuant to the alterations provisions of both the California and

18 DOJ Standards, as a result of this project, Defendant’s parking lots must strictly comply with

19 the applicable provisions of these Standards, and a single order to this affect will apply to all of

20 Defendant’s restaurants.

21

ARGUMENT

22 I. This Case Should Be Tried as a Class Action.

23

“‘[T]he class-action device save[s] the resources of both the courts and the parties by

24 permitting an issue potentially affecting every [class member] to be litigated in an economical

25 fashion.’” Gratz v. Bollinger, 123 S. Ct. 2411, 2426 n.17 (2003) (quoting Califano v.

26 Yamasaki, 442 U.S. 682, 701 (1979)). As demonstrated above and in Named Plaintiffs’

27 Opening Brief, Taco Bell is a centrally-run company, with centralized design and construction

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 9 of 19

1 policies, that operates 220 very similar restaurants. Only through the class action device can

2 the ADA violations at these restaurants be tried and remedied efficiently. Although Plaintiffs

3 do not believe that this case will require 220 “mini-trials,” the alternative is at least 220

4 separate cases, in multiple fora, involving largely overlapping discovery of centralized policies

5 and design documents, repeated briefing of similar issues, and potentially varying or even

6 contradictory standards for each restaurant in California. This would be phenomenally

7 wasteful of both judicial and party resources, and the difficulty of implementing different or

8 conflicting standards would likely result in the perpetuation of violations.

9

The alternative that a class action offers is a single case, with unified discovery and a

10 single set of motions and legal rulings to be applied to all 220 restaurants. The uniform

11 standards such a ruling would produce would be straightforward to implement and monitor,

12 achieving both procedural efficiency and substantive results.

13 II. Defendant’s Commonality Argument Must Be Rejected.

14

Named Plaintiffs in their Opening Brief identified numerous questions of law and fact

15 common to the class. (Opening Br. at 17-21.) Defendant does not dispute that these questions

16 exist, or that they are common to the class. Instead, Defendant -- relying on General Telephone

17 Co. of the Southwest v. Falcon, 457 U.S. 147 (1982) -- asserts that the alleged physical

18 differences in its restaurants defeat commonality. (Def.’s Resp. at 6-11.) As demonstrated

19 above, this argument rests on incorrect factual premises. Taco Bell has centralized policies

20 governing the design and construction of its physically very similar restaurants. Defendant’s

21 argument also fails because it is (1) contrary to the proper analysis of the commonality issue,

22 (2) based on an erroneous interpretation of Falcon, and (3) based on an erroneous interpretation 23 of applicable standards.4

24

25

26

4

Defendant’s argument that Named Plaintiffs’ have not met the typicality

27 requirement is based on its argument that Named Plaintiffs have not met the commonality requirement. Def.’s Resp. at 14. Because, as demonstrated herein, Named Plaintiffs have

28 established commonality, Defendant’s typicality argument must be rejected.

Case No. C 02 5849 MJJ ADR

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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 10 of 19

1

Finally, Defendant asserted that commonality was not met because Named Plaintiffs

2 seek deterrence damages on behalf of the class.5 This is not the case: Named Plaintiffs do not

3 seek deterrence damages on behalf of the class. See Arnold v. United Artists Theatre Circuit,

4 Inc., 158 F.R.D. 439, 453 (N.D. Cal.), modified, 158 F.R.D. 439, 443, 460 (1994) (holding that

5 deterrence claims are not appropriate for class certification).

6

A. Commonality is not Defeated by Alleged Differences in Defendant’s

7

Restaurants.

8

The commonality requirement is “construed permissively.” Hanlon v. Chrysler Corp.,

9 150 F.3d 1011, 1019 (9th Cir. 1998). “Class suits for injunctive or declaratory relief by their

10 very nature often present common questions satisfying Rule 23(a)(2).” 7A Charles Alan

11 Wright et al., Federal Practice and Procedure § 1763 (2d ed. 1986). Significantly, “[a]ll

12 questions of fact and law need not be common to satisfy the rule.” Hanlon, 150 F.3d at 1019.

13 Thus even if Defendant’s restaurants are different (which, as demonstrated above, is largely not

14 the case), because it is undisputed that the class shares numerous common legal and factual

15 questions, the proposed class satisfies the commonality requirement.

16

Fundamentally, Defendant’s focus on differences in its restaurants misses the point of

17 the commonality analysis. The proper question is what legal and factual issues are common to

18 the members of the putative class, not what legal and factual issues are common to the

19 restaurants that are the subject of the lawsuit. Defendant’s focus would only make sense if

20 California had only 220 people who used wheelchairs or scooters and each patronized one and

21 only one Taco Bell restaurant not patronized by any other. This is, of course, not the case.

22 Instead, each restaurant is open for business to the entire class, and the access barriers in each

23

24

5

(Def.’s Resp. at 11-12.) Defendant also incorrectly contends that commonality

is defeated because the class seeks any damages. Named Plaintiffs seek only the minimum

25 statutory damages per violation, and because such damages are recoverable without proof of actual damages, the only damages issue not common to the class “is the simple question of the

26 number of instances that individual class members were aggrieved” by Defendant’s violations. Arnold, 158 F.R.D. at 449; see also Six (6) Mexican Workers v. Ariz. Citrus Growers, 904

27 F.2d 1301, 1306 (9th Cir. 1990) (holding that because statutory damages under Farm Labor Contractor Registration Act are not dependent on proof of actual injury, “the district court was

28 not obligated to require individual proof of injury from each class member.”)

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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 11 of 19

1 restaurant will affect the entire class in the same way. The fact that there are multiple barriers

2 in multiple restaurants does not change this analysis. It may make the case more complex than

3 a single-restaurant class action -- though, as explained above, far less complex and more

4 efficient than 220 separate cases -- but it is not relevant to the question of commonality.

5

The only case cited by Defendant -- Access Now, Inc. v. Walt Disney World Co., 211

6 F.R.D. 452 (M.D. Fla. 2001) -- in which a court refused to certify a class challenging

7 architectural barriers at multiple sites is thus wrong, but also easily distinguishable. The

8 plaintiffs in Access Now provided only “conclusory allegations” that the defendant’s policies

9 violated the ADA. Id. at 454-55. In this case, Named Plaintiffs have specifically identified the

10 deficiencies in Defendant’s policies. (Opening Br. at 11-13, 19-20.) In addition, the facilities

11 at issue in Access Now included fifteen hotels, two theme parks and a monorail system, and

12 each facility possessed a unique architectural style. Access Now, 211 F.R.D. at 453 n.2 & 455.

13 In contrast, this case involves restaurants that share very similar architectural elements built in

14 accordance with prototypes and centralized design and construction policies.

15

B. The Requirements of Falcon are Easily Met in this Case.

16

In Falcon, the plaintiff, a Mexican-American, alleged that he had not been promoted for

17 discriminatory reasons. Falcon, 457 U.S. at 149. The class he sought to represent, however,

18 was far broader than Mexican-American employees who were denied promotions. Rather, the

19 proposed class, certified by the district court, consisted of “‘all hourly Mexican American

20 employees who have been employed, are employed, or may in the future be employed and all

21 those Mexican-Americans who have applied or would have applied for employment had the

22 Defendant not practiced racial discrimination in its employment practices.’” Id. at 151.

23

The Court found that the purpose of the Rule 23(a) requirements was to “‘limit the class

24 claims to those fairly encompassed by the named plaintiff’s claims.’” Id. at 156. The plaintiff

25 in Falcon had brought an “across-the-board” class action, in that he sought to represent class

26 members who had suffered types of discrimination that he did not suffer. In other words, there

27 was a gap between his claim for discrimination in promotion, and the claims of the class

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 12 of 19

1 members for discrimination in all employment practices. Id. at 157. The Court held that in

2 across-the-board class actions, in order for the representative’s claims to fairly encompass the

3 claims of class members, there must be evidence to bridge this gap, by, for example, showing

4 that both claims resulted from a “general policy of discrimination.” Id. at 158, 159 n.15.

5

The case at bar is not an across-the-board class action. The Named Plaintiffs seek to

6 represent only persons who, like them, use wheelchairs or scooters for mobility -- they do not 7 seek to represent persons with other types of disabilities.6 The Named Plaintiffs seek to

8 represent persons who, like them, suffered discrimination as a result of architectural barriers at

9 Defendant’s restaurants -- they do not seek to represent persons with disabilities who suffered

10 employment discrimination. Thus the Named Plaintiffs’ claims fairly encompass the claims of

11 class members as required by Falcon.

12

C. The Class Shares Common Legal Issues.

13

Although such an analysis would not defeat class certification, Defendant is wrong that

14 this case will require a store-by-store analysis. Defendant’s contention is based on three legal

15 issues (see Def.’s Resp. at 9-10); in each case, Defendant has misconstrued the relevant statute.

16

First, Defendant contends that the “readily achievable” standard under the ADA, see 42

17 U.S.C. § 12181(b)(2)(A)(iv), will require store-specific evaluations. (Id.) As discussed in the

18 Opening Brief, restaurants built after January 1993, and alterations that took place after January 19 1992, must comply with the DOJ Standards,7 and the readily achievable standard does not

20 apply to these restaurants.

21

Further, many architectural barriers violated California Standards, which have been in

22 place since 1970. The readily achievable standard is irrelevant to these barriers. For example,

23 as set forth above, Defendant’s pre-ADA queue lines violated the California Standards, and

24 thus must be made accessible regardless of whether it is readily achievable to do so.

25

26

6

Indeed, the Ninth Circuit has affirmed certification of a class consisting of

persons with differing disabilities. See Armstrong v. Davis, 275 F.3d 849, 869-70, 879 (9th

27 Cir. 2001), cert. denied, 537 U.S. 812 (2002).

28

7

42 U.S.C. § 12183(a); 28 C.F.R. § 36.406.

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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 13 of 19

1

Finally, even where a readily achievable analysis is necessary, this analysis involves

2 questions that are common to the class. For example, the readily achievable issue “hinges, in

3 part, on various corporation-wide factors such as the availability of resources” and thus

4 presents a question common to the class. Arnold, 158 F.R.D. at 449. In addition, because

5 Defendant’s restaurants are very similar, the costs and methods of removing particular types of

6 barriers will be similar among its restaurants. For example, if in pre-1993 restaurants, lowering

7 drink dispensers is evaluated under the readily achievable standard, the cost of doing so will be

8 virtually identical among the restaurants, thereby creating another issue common to the class.

9

Second, Defendant contends that store-specific determinations will be necessary

10 because the California Disabled Persons Act (“CDPA”) allegedly permits deviations from that

11 Act if they are necessary to comply with other existing laws. (Def.’s Resp. at 10.) This is an

12 apparent reference to Cal. Civ. Code § 54.1(a)(1), which states that “[i]ndividuals with

13 disabilities shall be entitled to full and equal access . . . to accommodations, advantages,

14 facilities [of] places of public accommodation . . . subject only to the conditions and limitations

15 established by law, or state or federal regulation, and applicable alike to all persons.” This

16 section has never been interpreted to allow a public accommodation to deviate from the

17 California Standards, and Defendant fails to cite a single statute or regulation that it contends

18 would prevent it from complying with the Standards. Even if such a statute or regulation

19 existed, its interpretation and application to Taco Bell restaurants are issues common to the

20 class.

21

Finally, Defendant asserts that store-by-store evaluations will be necessary because

22 deviations from the California Standards are permissible when compliance would create an

23 unreasonable hardship. (Def.’s Resp. at 10.) This is simply wrong. A public accommodation

24 must apply to the relevant enforcing agency for the unreasonable hardship exception at the time

25 of construction, and the “[t]he details of any finding of unreasonable hardship [by the enforcing

26 agency] shall be recorded in the files of the enforcing agency.” Cal. Standards § 222-U (see ex.

27 2). Defendant has presented no evidence that it has ever applied for an undue hardship

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 14 of 19

1 exception, nor has it produced such evidence in discovery. Having never applied for this

2 exception, Defendant cannot seek to rely on it after the fact.

3 III. Named Plaintiffs Have Met the Numerosity Requirement.

4

As set forth in Named Plaintiffs’ Opening Brief, joinder in this case is impracticable

5 because: (1) census figures, in combination with Taco Bell’s annual transaction counts,

6 demonstrate as a matter of common sense that the class is large; (2) the class is geographically

7 dispersed; and (3) the class members are difficult to identify. (Opening Br. at 16-17.)

8

Defendant does not dispute that the class is geographically dispersed or that class

9 members are difficult to identify. Rather, Defendant challenges Named Plaintiffs’ use of

10 census information, and contends that Named Plaintiffs have not identified a sufficient number

11 of class members to establish numerosity. (Def.’s Resp. at 12-14.)

12

Numerous cases involving violations of DOJ or California Standards have relied on

13 population statistics to show numerosity. See, e.g., Colorado Cross-Disability Coalition v.

14 Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo. 1999); Arnold, 158 F.R.D. at 448; Berlowitz v.

15 Nob Hill Masonic Mgmt., Inc., No. C-96-0141 MHP, 1996 WL 724776, at *3 (N.D. Cal. Dec.

16 6, 1996). The nature of such cases make population statistics particularly appropriate to

17 establish numerosity. The evidence presented by Named Plaintiffs indicates (1) that a large

18 number of persons who use wheelchairs or scooters have visited Defendant’s restaurants, and

19 (2) that many or all of Defendant’s restaurants have architectural barriers (a fact not disputed in

20 Defendant’s Response.) From this evidence, and as a matter of common sense, a large number

21 of persons who use wheelchairs or scooters have encountered architectural barriers.

22

The cases cited by Defendant are different. In these cases, unlike architectural barrier

23 cases, there is no evidence that the population group actually suffered discrimination or was

24 otherwise harmed. For example, in Green v. Borg-Warner Protective Services Corp., Nos. 95

25 Civ. 10419(RPP), 96 Civ. 0038(RPP), 95 Civ. 5558(RPP), 96 Civ. 8740(RPP), 1998 WL

26 17719, at *1 (S.D.N.Y. Jan. 16, 1998), homeless persons who lived at shelters sought class

27 certification based on excessive force by security personnel at the shelters. The court held that

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 15 of 19

1 the fact that 4,000 people resided in shelters each day was not sufficient to establish numerosity

2 because there was no evidence that their rights were being violated. Id. at *3.

3

Because Named Plaintiffs have demonstrated that many or all of Defendant’s

4 restaurants have architectural barriers, the only way that this class is not numerous is if

5 virtually none of Defendant’s 50 million transactions involved persons who use wheelchairs or

6 scooters. This conclusion defies common sense. There are approximately 151,580

7 non-institutionalized Californians 16 years of age or older who use wheelchairs. This

8 represents .68% of the population of California, and this number does not include

9 institutionalized people who use wheelchairs, people under the age of 16 years who use

10 wheelchairs, or people who use scooters for mobility, all of whom are potential members of the

11 class. Applying this percentage to the total number of transactions at Taco Bell corporate

12 restaurants in 2002 results in an estimate of 340,000 transactions involving customers who use

13 wheelchairs. (See Resps. to Def.’s First Set of Interrogs. & Reqs. for Produc. of Docs. to Pls.,

14 Interrog. Resp. No. 2 (“Interrog. Resp. No. 2”)(ex. 3).) This is a very conservative estimate

15 because it does not include the categories described above, nor does it include transactions

16 within the statute of limitations for years other than 2002.

17

Although one customer may account for several transactions during a year, even based

18 on the far-fetched assumption that each class member ate at Taco Bell 100 times in 2002, the

19 number of class members would exceed 3,000. (See Interrog. Resp. No. 2 at 3. (ex. 3).)

20

Further, the Colorado Taco Bell Class Action involved 40 restaurants, or less than 20%

21 of the number of restaurants at issue in this case, and challenged only two architectural barriers.

22 The percentage of persons who use wheelchairs in Colorado is smaller than in California. (Ex.

23 4 at P26.) Approximately 115 class members responded to the settlement notice. Because the

24 damages that each class member received in Colorado ($50) is much smaller than the amount

25 that each California class member may be entitled to (either $1,000 or $4,000 per instance of

26 discrimination), it is virtually certain that the response rate will be higher in California. (See

27

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 16 of 19

1 Pls.’ First Supplement to their Resps. to Def.’s First Set of Interrogs. & Reqs. for Produc. of

2 Docs. to Pls. at 2 (ex. 5).)

3

Finally, the class action in Lieber v. Macy’s West, Case No. C-96 02955 MHP (BZ)

4 (N.D. Cal.), like the case at bar, was brought on behalf of a class of Californians with mobility

5 disabilities based on alleged architectural barriers at a department store chain. The action

6 settled, and approximately 1,350 class members with compensable claims responded to the

7 settlement notice. Because there were only 72 department stores at issue in Macy’s, or less

8 than 1/3 of the number of restaurants at issue in this case, the number of class members in this

9 case likely significantly exceeds the number of class members in Macy’s. (See Interrog. Resp.

10 No. 2 at 3 (ex. 3).)

11

Defendant also contends that Named Plaintiffs have not identified a sufficient number

12 of class members to establish numerosity. (Def.’s Resp. at 12-14.) This ignores the fact that

13 the difficulty of identifying class members supports class certification. See, e.g., Arnold, 158

14 F.R.D. at 448 (holding that numerosity requirement was met, in part because “[b]y the very

15 nature of this class, its members are unknown and cannot be readily identified.”). As one court

16 put it in responding to the identical argument made here: “No authority supports limiting the

17 putative class to those who have come forward with actual or potential claims. The difficulties

18 of identifying additional class members at this stage in the litigation support certification,

19 rather than undercutting it.” Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK and

20 CIV. S-93-1622 LKK, 1994 U.S. Dist. LEXIS 21281, at *13 n.8 (E.D. Cal. June 28, 1994).

21 IV. Named Plaintiffs Will Adequately Represent the Class.

22

Defendant does not dispute that (1) Named Plaintiffs do not have conflicts of interest

23 with the proposed class, and (2) Named Plaintiffs are represented by qualified counsel. This

24 satisfies the adequate representation requirement. Bates v. United Parcel Serv., 204 F.R.D.

25 440, 447 (N.D. Cal. 2001).

26

Defendant claims that Named Plaintiffs are inadequate representatives because there is

27 no evidence that they have the financial resources to litigate this action. (Def.’s Resp. at 18.)

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 17 of 19

1 Numerous courts have held that a named plaintiff’s financial status is irrelevant to class

2 certification. See, e.g., In re West Coast Dep’t Stores Antitrust Litig., Civil No. C-79-2724

3 SW, 1979 WL 1721, at *1 (N.D. Cal. Nov. 16, 1979) (holding that “inquiry into the financial

4 affairs of the named plaintiff [was] irrelevant and not within the proper scope of discovery”);

5 Sanderson v. Winner, 507 F.2d 477, 479 (10th Cir. 1974) (“We generally eschew the question

6 whether litigants are rich or poor.”). This is particularly true where, as here, Named Plaintiffs’

7 counsel is advancing litigation costs. See, e.g., Kaplan v. Pomerantz, 131 F.R.D. 118, 125

8 (N.D. Ill. 1990).

9

Defendant also contends that Named Plaintiffs are inadequate representatives because

10 they purportedly are unfamiliar with the design and construction specifications set forth in the

11 Standards. (Def.’s Resp. at 15-18.) In other words, although all of the Named Plaintiffs

12 testified in detail about the architectural barriers they encountered, their inability to state the

13 precise width of queue lines, or the maximum door force, required by the Standards, renders

14 them inadequate. This is an absurd standard not required by Rule 23.

15

It is astonishing to hear Taco Bell -- a multi-billion dollar corporation with internal

16 legal and architecture departments under a legal obligation to comply with the Standards that

17 has consistently demonstrated an ignorance of those Standards -- complain that the Named

18 Plaintiffs are inadequate representatives because they cannot recite the design specifications.

19

In any event, Taco Bell’s argument has been rejected by numerous courts. “[C]ourts

20 have held that a representative plaintiff must be conscientious, [but] there is no requirement

21 that the representative plaintiff be knowledgeable of either the allegations or the legal theories

22 on which the lawsuit rests.” Paper Sys. Inc. v. Mitsubishi Corp., 193 F.R.D. 601, 609 (E.D.

23 Wis. 2000); see also In re Catfish Anitrust Litig., 826 F. Supp. 1019, 1037 (N.D. Miss. 1993)

24 (“An antitrust litigant is not expected to appreciate the finer points of the Sherman Act, Clayton

25 Act, or the Federal Rules of Civil Procedure governing class action certification.”); Kaplan,

26 131 F.R.D. at 122 (“As long as the plaintiff has some basic knowledge of the lawsuit and is

27 capable of making intelligent decisions based upon his lawyers' advice, there is no reason that

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 18 of 19

1 he may not delegate further factual and legal investigation to his attorneys.”). Thus in Surowitz

2 v. Hilton Hotels Corp., 383 U.S. 363, 366, 373-74 (1966), the Supreme Court held that the

3 named plaintiff satisfied the adequate representation requirement even though her deposition

4 showed that she did not understand the complaint at all, was unable to explain the statements

5 made in the complaint, had a very small degree of knowledge as to what the lawsuit was about,

6 and was ignorant of the defendants’ names and the nature of their alleged misconduct.

7

Even though Named Plaintiffs have not committed the Standards to memory, they are

8 clearly committed to the rights of persons with disabilities, and to the class in this case, and

9 Defendant has presented no facts to the contrary. They are adequate representatives.

10 V. The Proposed Class Satisfies Rule 23(b)(2).

11

As set forth in Named Plaintiffs Opening Brief, the Ninth Circuit in Molski v. Gleich,

12 318 F.3d 937, 949-50 (9th Cir. 2003), decided the precise question before this Court, holding

13 that a class of persons with disabilities seeking injunctive relief under the ADA, and statutory

14 damages under the Unruh Civil Rights Act and the CDPA, met the requirement of Rule

15 23(b)(2). (Opening Br. at 22-23.) The court in Molski also held that notice should be sent to

16 the class, and Named Plaintiffs have no objection if the Court believes that notice is

17 appropriate in this case.

18

Defendant does not contend that the proposed class fails to meet Rule 23(b)(2). Rather,

19 Defendant claims that in notes 15 and 16 of the Molski opinion, the Ninth Circuit adopted a

20 “functional equivalent” of a Rule 23(b)(3) analysis, and Defendant then argues that the class in

21 this case does not meet the Rule 23(b)(3)’s requirement that “questions of law and fact

22 predominate over any questions affecting only individual members.” (Def.’s Resp. at 21-22.)

23 Note 15 discusses the method of determining whether Rule 23(b)(2)’s requirement that

24 injunctive relief predominate over monetary relief is satisfied. Molski, 318 F.3d at 950 n.15.

25 Note 16 discusses due process concerns raised when a class settlement waives class members’

26 claims to treble damages. Id. at 951 n.16. Nothing in notes 15 or 16 (or anywhere else in the

27

28
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Case 3:02-cv-05849-PJH Document 68 Filed 10/08/2003 Page 19 of 19

1 decision) even suggests that the Ninth Circuit was adopting a Rule 23(b)(3) analysis to evaluate

2 a Rule 23(b)(2) class.

3

The Ninth Circuit in Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), specifically

4 rejected the argument that the Rule 23(b)(3) requirements apply to a Rule 23(b)(2) class:

5

We note that with respect to 23(b)(2) in particular, the government’s dogged focus on

the factual differences among the class members appears to demonstrate a fundamental

6

misunderstanding of the rule. Although common issues must predominate for class

certification under Rule 23(b)(3), no such requirement exists under 23(b)(2). It is

7

sufficient if class members complain of a pattern or practice that is generally applicable

to the class as a whole. Even if some class members have not been injured by the

8

challenged practice, a class may nevertheless be appropriate. See 7A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1775 (2d

9

ed. 1986) (“All the class members need not be aggrieved by or desire to challenge the

defendant's conduct in order for some of them to seek relief under Rule 23(b)(2).”); see

10

also Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988) (emphasizing that although

“the claims of individual class members may differ factually,” certification under Rule

11

23(b)(2) is a proper vehicle for challenging "a common policy").

12

Moreover, the claims raised by the plaintiffs in this action are precisely the sorts of

claims that Rule 23(b)(2) was designed to facilitate. As the Advisory Committee Notes

13

explain, 23(b)(2) was adopted in order to permit the prosecution of civil rights actions.

14 Id. at 1047.

15

Named Plaintiffs seek certification under Rule 23(b)(2), and thus the requirements of

16 Rule 23(b)(2), and not those of Rule 23(b)(3), apply. As demonstrated by Molski (and the

17 numerous other cases cited in the Opening Brief), the proposed class satisfies Rule 23(b)(2).

18

CONCLUSION

19

For the reasons set forth above and in their Opening Brief, Named Plaintiffs request that

20 this Court, pursuant to Rules 23(a) and 23(b)(2), certify a class in this case.

21

22

FOX & ROBERTSON

23

24 25 Dated: October 8, 2003

BY: /s/ Timothy P. Fox Timothy P. Fox

26

27

28
Case No. C 02 5849 MJJ ADR Plaintiffs’ Reply Brief in Support of Their Motion for Class Certification
-15-

 
 F I LED

OCT 0 5 2004

FOX & ROBERTSON, p,c.
TimothyP. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
910 - 16th Street, Suite 610
3 Denver, Colorado 80202
TeL (303) 595-9700
4 Fax: (303) 595-9705

RICHARD W. WIEKING
CLERK. U.S. DISTRICT COURT LAWSON LAW Ol'fl!t!'il~N DISTRICT OF CALIFORNIA
Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
Oakland, CA 94610
Tel: (510)419-0940
Fax: (501)419-0948

5

Attorneys for Plaintiffs
6

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

7 Jeffi-ey H. Dastee1, Cal. Bar No. 110405

T. Jean Mooney, Cal. Bar No.2 t 1747

8 300 South Grand Ave, 34F

Los Angeles, CA 90071
9 Tel: (213) 687-5000

Fax: (213) 687-5600
10

Attorneys for Defendant

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DNISION

13

FRANCIE E. MOELLER et aI,

14 Plaintiffs,

Case No.

C 02 5849 MJ h<y.,l.l(,-~

15 v.
16

[l'pgp??%'l0RDERAPPOINTING SPECIAL STER

TACO BELL CORP.,

17 Defendant.

18

,
19 Plaintiffs Francie Moeller, Katherine Corbett, and Craig Yates, on behalf of a class of

20 similarly situated individuals ("Plaintiffs"), and Defendant Taco Bell Corp. ("Taco Bell"), by

21 and through their respective counsel of record, hereby jointly submit this [Proposed] Order

22 Appointing Special Master, and respectfully request the Court to adopt it and appoint a special

23 master as set forth herein.

24

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26

I. Appointment of Special Master. The Court hereby confirms its appointment of

2 Bob Evans of Equal Access, 862 Ballow Way, San Marcos, California, as Special Master

3 pursuant to Pederal Rule of Civil Procedure 53.

4

2. Scope of Duties.

5

a. The Special Master will conduct site visits of all of the company-owned

6

Taco Bell outlets in California (the "California Outlets"), except for

7

those identified in Exhibit A. The purpose of the site visits is for the

8

Spccial Master to use his expertise under the Department of Justice

9

Standards for Accessible Design ("DOJ Standards"), 28 C.P.R. pt. 36,

10

app. A, and Title 24 of the 2002 California Building Code (,Title 24") to

II

determine the dimensions, values and measurements of the customer

12

accessible elements at the California Outlets under the DOJ Standards

13

and/or Title 24 at the time of the site visit and to make recommendations

14

as he sees fit for bringing into compliance those elements whose

15

dimensions, values or measurements do not comply with DOJ Standards

16

and/or Title 24. The parties expressly acknowledge and agree that the

17

Special Master's determinations of dimensions, values and

18

measurements and any statements regarding whether such dimensions,

19

values or measurements do or do not comply with DOJ Standards and/or

20

Title 24 on the date of the site visit do not constitute legal

21

determinations that Taco Bell has or has not violated the Americans with

22

Disabilities Act, the Unruh Civil Rights Act, or the California Disabled

23

Persons Act. The parties further understand and agree that the Special

24

Master's determinations regarding compliance do not take into

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26 -2-

I

consideration whether the current DOJ Standards and/or Title 24 applied

2

to a particular restaurant at the time of construction or alteration, 1

3

whether removal of architectural barriers in facilities existing before

4

January 26, 1993 is readily achievable, or whether full compliance with

5

DOJ Standards and/or Title 24 is otherwise not required by law.

6

b. The Special Master shall survey the California Outlets, except for those

7

identified in Exhibit A, using the form attached hereto as Exhibit B2

8

For each of the California Outlets surveyed, the Special Master's duties

9

include: (a) identifying the dimensions, values, measurements or other

10

necessary quantifications relating to each element listed in Exhibit B on

II

the date of the site visit; (b) taking photographs of certain clcments at

12

each store sufficient to illustrate existing conditions on the date of the

13

site visit; (c) identifying whether each element complies with the DOJ

14

Standards and/or Title 24 on the date ofthe site visit (without regard to

15

whether the readily achievable standard or some other standard may

16

17 18 19 20 21
22
2
23 24

An "alteration" is "a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof." 28 C.F.R. § 36.402(b). "Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or fucility." Id. § 36.402(b)(I).
Citations to DOJ Standards and/or Title 24 in the "Element" column of Exhibit Bare provided for reference only. Citations of DOJ Standards and/or Title 24 for particular elements do not mean that the cited standards govern the element at issue or that other standards (whether DOJ Standards or Title 24) are not applicable.

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26 -3-

apply to the particular element); (d) where an element does not currently

2

comply with the DO] Standards and/or Title 24, without determining

3

whether the readily achievable or feasible standards apply to the

4

particular outlet or element, providing the parties with a proposed

5

solution to bring the particular element into compliance with the DO]

6

Standards and/or Title 24; (e) where applicable, noting whether in his

7

opinion a proposed solution is structurally impracticable' or technically

8

infeasible;4 (f) if a proposed solution is noted as structurally

9

impracticable or technically infeasible, as defined herein, any proposed

10

alternative solution that would provide access to the maximum extent

II

feasible' and/or to the extent it is not structurally impracticable;6 and (g)

12

where applicable, providing the parties with non-binding cost estimates

13

for any proposed solutions. The Special Master will not make

14

recommendations as to whether a particular proposed solution is readily

IS

achievable. For the 20 stores listed on Exhibit A, the Special Master

16

17

"Structurally impracticable" means "only ... those rare circumstances when the unique

characteristics of terrain prevent the incorporation of accessibility features." 28 C.F.R.

18

§ 36.401(c)(1).

19 4 20 21
22

''Technically infeasible" means, "with respect to an alteration of a building or facility, that it has little likelihood of being accomplished because existing structural conditions would 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 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 necessary to provide accessibility." DO] Standards § 4.1.6(1 )(j); Title 24 (2002) § 221.

23 24 6

See DO] Standards § 4.1.6(1 )(j). See 28 C.F.R. § 36.401(c)(2).

25 Case No. C 02 5849 MJJ ADR
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I

shall complete the form attached hereto as Exhibit B using the

2

information he obtained in the previously completed Pilot Program.

3

3. Limits on Special Master's Authority Under Rule 53(c). The Special Master

4 shall have all authority set forth in Rule 53(c), except he shall not have the power: (a) to

5 impose sanctions provided by Rule 37 or 45; (b) to recommend sanctions; (c) to conduct

6 formal hearings; (d) to issue orders; or (e) to resolve disputes other than those necessary to

7 complete the Interim Survey Reports or Final Survey Reports.

8

4. Ex Parte Communications. With the exception of non-substantive

9 communications (c.g., scheduling), the Special Master shall not communicate ex parte with

10 either party. Each party shall be afforded the opportunity to participate in all communications

II that take place between the Special Master and (1) either party, (2) the Court, or (3) any third

12 party the Special Master decides to contact in connection with this matter. Each party retains

13 the right to forego its participation in a particular communication for any reason and shall state

14 this intent to the Special Master and the other participating party. To the extent the Special

15 Master considers in his sole judgment that it is necessary for him to communicate directly with

16 Taco Bell's non-legal employees regarding cost estimates or proposed solutions, the Special

17 Master may do so either (I) in writing, provided that a copy of the written communication, and

18 any response from Taco Bell's non-legal employee(s), is copied to all counsel, or (b) by

19 telephone, provided that all counsel have been given a reasonable opportunity to participate in

20 the call.

21

5. Preservation of Materials. All writings of any nature whatsoever created by the

22 Special Master or those employed by him in performing his duties under the terms of this Order

23 shall be preserved by the Special Master. "Writings" include, but are not limited to,

24 correspondence, memoranda, records, reports, summaries or records of telephone

25 Case No. C 02 5849 MJJ ADR
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26 -5-

I conversations, work papers, drafts, copies, notes, marginal notations, bills, invoices, checks,

2 photographs, computer tapes, disks, emails, or other computer storage media, electronic or

3 magnetic storage media, and all other matter, printed, recorded or photographic matter or sound

4 reproductions. The Court and either party may request that any of these writings be produced

5 for inspection. The Final Survey Reports, as defined in Paragraph 7(e) below, shall be the only

6 document filed as the record of the Special Master's activities.

7

6. Procedures Relating to Surveying Restaurants.

8

a.

Survey. The Special Master will survey each California Outlet, except

9

for those identified in Exhibit A, using the survey form in Exhibit B. On

10

or before October 8, 2004, Taco Bell will provide to the Special Master

II

and Class counsel a list of all California Outlets, including addresses and

12

store numbers. Taco Bell will supplement that list from time to time as

13

necessary. If the Special Master elects to employ others to assist with

14

the surveys, counsel for the parties may elect to accompany the Special

15

Master and any such assistant during the assistant's first several surveys

16

to ensure that such assistant understands and correctly implements the

17

survey form created by the parties. If either party intends to accompany

18

the Special Master on any of the site visits of the California Outlets, it

19

shall inform opposing counsel of such intention at least seven days prior

20

to the site visit.

21

b. Procedure Relating to California Outlet Closings and Acquisitions. If

22

any ofthe California Outlets, except for those identified in Exhibit A,

23

are scheduled to be closed permanently, Taco Bell will provide as much

24

notice as is practicable of such scheduled closing. If Taco Bell acquires

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26
-6-

or opens a Taco Bell outlet in California before June I, 2005 that was

2

not previously company-owned, it shall be considered a California

3

Outlet after the date of its acquisition or opening by Taco Bell and shall

4

be subject to the provisions of this Order.

5

c. Procedure Relating to Alterations. From the date of entry of this Order

6

until the Special Master completes his site visits at each ofthe California

7

Outlets, except for those identified in Exhibit A, Taco Bell shall provide

8

fourteen (14) days advance notice to Class counsel and the Special

9

Master of any planned remodels, renovations or programs communicated

10

from Taco Bell's corporate offices to any as-of-that-date unsurveyed

II

California Outlets instructing that alterations affecting accessibility of

12

the California Outlets be made. Taco Bell shall have no obligation to

13

notify Class counselor the Special Master of normal maintenance

14

activities at the California Outlets; provided, however, that if Taco Bell

15

employees Ed Medina, Jamie DeBeers, or another employee in the same

16

position makes, orders or arranges for any of the following measures at

17

any of the California Outlets, except for those identified in Exhibit A,

18

where feasible he or she shall record and (through counsel) report to

19

Class counsel the existing conditions prior to taking the measure in

20

question: (I) adjusting the door opening force of entrance or restroom

21

doors; (2) moving bathroom fixtures or fixed amenities; (3) moving or

22

replacing a queue line; (4) moving or replacing fixed tables or fixed

23

chairs; (5) restriping parking lots; or (6) adding signage. Where it is not

24

feasible to record existing conditions, Taco Bell will report to Class

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26
-7-

I

counsel the measure taken and the reason it was not feasible to record

2

existing conditions.

3

d. Access to Restaurants for Class Counsel. From the date of entry of this

4

Order through the deadline to submit briefs addressing any objections or

5

modifications to the Special Master's Report, Class counsel and/or their

6

expert(s) or consultant(s) may have access to the public areas of the

7

California Outlets during non-peak service periods to confirm any of the

8

data in the Interim Survey Reports. Class counsel shall provide at least

9

five days advance notice to Taco Bell's counsel of their intention to

10

access a particular California Outlet if Class counselor their experts or

II

consultants intend to take measurements, photographs or otherwise

12

engage in activities at the outlet other than viewing the public areas of

13

the outlet. Class counsel and/or their expert(s) or consultant(s) will take

14

care not to disrupt Taco Bell's business operations during any such visit.

15

7. Schedule for Preparing Reports and Conferring Among the Parties.

16

a. Deadline. The Special Master will complete all surveys by June 30,

17

2005. The parties shall provide a report to the Court at the January 4,

18

2005 status conference concerning the progress of the Special Master

19

towards meeting the goal to complete the surveys by June 30, 2005.

20

b. Benchmarks. To ensure the Special Master meets the deadline set forth

21

in Paragraph 7(a), the Special Master will complete at least 23 surveys

22

and Interim Survey Reports each month. If the Special Master has not

23

completed 57 surveys and Interim Survey Reports by December 31,

24

2004, the parties will meet and confer to discuss whether to seek the

25 Case No. C 02 5849 MJJ ADR
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I

appointment of a different individual as Special Master or an additional

2

Special Master. If the parties elect not to seek the appointment of a new

3

Special Master, they may, at that time, set additional deadlines for the

4

Special Master, and a later date to meet and confer to discuss whether to

5

seek the appointment of a new Special Master.

6

c. Interim Survey Reports. From October 2004 through June 2005, on the

7

last business day of each month, the Special Master shall provide the

8

parties with a copy of each survey report completed during that month.

9

These survey reports will be labeled and referred to hereinafter as the

10

"Interim Survey Reports." The Special Master will provide the parties

II

with the first set ofInterim Survey Reports on October 29, 2004, and

12

will continue to provide Interim Survey Reports on the schedule set forth

13

in Subparagraph 7(b) above. The Special Master will provide Interim

14

Survey Reports to the parties by email in PDF format and as a Word

IS

document. The Special Master shall provide the last set ofInterim

16

Survey Reports to the parties on or before June 30, 2005.

17

d. Meet and Confer Concerning Dimensions. Values or Measurements.

18

Once each month, the parties shall meet and confer to determine whether

19

there are any disputes regarding the dimensions, values or measurements

20

recorded by the Special Master for the outlets for which the Special

21

Master issued reports in the preceding month. If there are any disputes

22

remaining after the meet and confer, the parties shall notify the Special

23

Master of the dispute within three days. Within 30 days after

24

notification, the Special Master shall redetermine the dimension, value

25 Case No. C 02 5849 MJJ ADR
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26
-9-

1

or measurement in question by performing a site visit. The parties shall

2

be given seven days advance notice of such site visit so that they may

3

attend the redetermination. If, after the redetermination site visit, the

4

parties remain in disagreement over the dimension, value or

5

measurement at issue, the positions of the parties shall be recorded and

6

shall be subject to the meet and confer and objection processes referred

71

to in Paragraphs 7(e) and 8(b) below.

81

e. Meet and Confer Concerning Compliance, Solutions, Costs, Readily

9

Achievable Issues, and Feasibility. As soon as is practicable after June

10

30, 2005 or the date of receipt of the reports for all the California

1 I

Outlets, whichever date is earlier, the parties shall meet and confer with

12

each other and any applicable third party defendants to reach agreement

13

on (i) whether there are violations of DOJ Standards or Title 24 at each

14

surveyed outlet; (ii) if there are violations of DOJ Standards or Title 24,

15

a proposed resolution to the violations; (iii) where applicable, whether

16

the proposed resolution is structurally or technically impracticable or

17

unfeasible; (iv) where applicable, whether the proposed resolution is

18

readily achievable; and (v) a proposed implementation schedule for any

19

agreed resolutions. The parties shall have ninety days following

20

completion of all the Interim Survey Reports (currently set as June 30,

21

2005) to complete the meet and confer process concerning all California

22

Outlets. Any agreements achieved during the meet and confer process

23

shall be provided to the Special Master for inclusion in his Final Report

24

as stipulations of the parties. Based on the meet and confer process, the

25 Case No. C 02 5849 MJJ ADR
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26 -10-

Special Master shall alter, make additions to, or otherwise revise the

2

Interim Survey Reports as agreed by the parties, provided that the

3

Special Master may not delete any "Elements" (i.e., line items) from any

4

Interim Survey Report.

5

f.

Final Survey Reports. Following the processes described in Paragraphs

61

7(d) and (e) above, the Special Master will usc each Interim Survey

7

Report to prepare a "Final Survey Report" for each California Outlet.

8

The Final Survey Report shall include (1) the dimensions, values and

9

measurements for each California Outlet as determined or redetermined

10

by the Special Master; (2) any stipulations of agreement reached by the

II

parties during the meet and confer process, with a notation that the

12

parties have so stipulated; and (3) all other information gathered by the

13

Special Master in the Interim Survey Report. From July 2005 until the

14

meet and confer process is completed, on the last business day of each

IS

month, the Special Master shall provide the parties with a copy of each

16

Final Survey Report for each California Outlet that the parties jointly

17

have notified the Special Master has been the subject of a completed

18

meet and confer process. The Special Master will provide signed copies

191

of each Final Survey Report to each party by mail (in hard copy) and by

20

email (in PDF format). The Special Master and the parties, including

21

any third party defendants, shall use their best efforts to complete the

22

meet and confer process so that the Special Master can send to the

23

parties all Final Survey Reports within 90 days after the final date for

24

completion of the Interim Survey Reports.

25 Case No. C 02 5849 MJJ ADR
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26 -11-

8. Submission to the Court, Objections and Motions

2

a.

Submission to the Court. All of the Final Survey Reports shall be filed

3

as one document with the Court within 14 days after all Final Survey

4

Reports have been sent to the parties. The Final Survey Reports,

5

collectively, will be labeled and referred to herein as the "Special

61

Master's Report."

7

b. Objections and Motions. Except as to dimensions, values and

8

measurements that were not challenged or that were resolved during the

9

monthly meet and confer process above, any party may file objections or

10

move to adopt or modify the Special Master's Report, or any portion

II

thereof, no later than 20 days after the Report is filed with the Court;

12

provided, however, that a third-party' that was not a party to this action

13

at the time of the monthly meet and confer process for determination of

14

dimensions, values and measurements may challenge dimensions, values

IS

and measurements for elements at issue in the third party defendant

16

complaint. Any portion of the Special Master's Report that is not the

17

subject of a timely objection or motion to modify shall be adopted by the

18

Court as a finding of fact. In the event a third party challenges

19

dimensions, values and/or measurements that were not challenged by

20

Plaintiffs or Defendant Taco Bell Corp. during the monthly meet and

21

confer process, Plaintiffs and Defendant Taco Bell Corp. agree they will

22

23

Taco Bell has expressed its intent to move to join certain third parties. Plaintiffs

24

reserve their right to oppose such motion.

25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26
-12-

jointly support the findings of the Special Master as to such dimensions,

2

values and/or measurements in the challenge proceeding before the

3

Court; provided, however, that the final determination of the Court as to

4

such challenge shall be binding on all parties to this proceeding,

5

9. Standard for Reviewing the Special Master's Report Any portion of the Special

6 Master's Report that is the subject of an objection or motion to modifY shall be reviewed de

7 novo by the Court pursuant to procedures to be adopted by the Court.

8

10. Admissibility. The Special Master's Report, and any portion thereof, shall be

9 admissible as evidence in any proceeding in this action only.

10

II. Basis. Terms. and Procedure for Fixing Master's Compensation. The Special

II Master shall be compensated at a rate of $1 ,200 per store plus out-of-pocket costs, for each of

12 the approximately 200 stores to be surveyed. During the meet and confer process, the Special

13 Master shall be compensated at an hourly rate of $180 per hour for his services. Details of the

14 Special Master's compensation are set forth in the letter attached as Exhibit C hereto. The

15 Special Master shall submit a bill for his services, as directed by Paragraph 12 below, on a

16 monthly basis.

17

12. Payment of Master's Compensation. The Special Master's compensation shall

18 be allocated equally between Plaintiffs and Taco Bell. Each party shall pay one-half of each

19 invoice. Each party reserves the right to move to amend this Paragraph to provide for a

20 different allocation of costs.

21

13. No Grounds for Disqualification. The parties are not aware of any grounds for

22 disqualification of the Special Master pursuant to 28 U.S.c. § 455. The Affidavit of Bob

23 Evans, attached hereto as Exhibit D, states that there are no grounds for disqualification under

24 28 U.S.C. § 455.

25 Case No. C 02 5849 MJJ ADR
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26
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RESPECTFULLY SUBMITTED, FOX & ROBERTSON, P.c.
BY: lsi TimothyP. Fox Timothy P. Fox Attorneys for Plaintiffs LAWSON LAW OFFICES Attorneys for Plaintiffs SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
BY: lsi Jeffrey H. Dasteel Jeffrey H. Dasteel Attorneys for Defendant Taco Bell Corp.
24 25 Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26
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ORDER APPOINTING SPECIAL MASTER

1

The Order Appointing Special Master is hereby adopted by the Court as an Order of the

2 Court and the parties are order to comply therewith.

3

4

5

6

7

8

9

10

11

12

13

14 DatdO)t;/)V-0'1

15

16

United Sates District Judge

17

18

19

20

21

22

23

24

25 Case No. C 02 5849 MJJ ADR

[PROPOSED] ORDER APPOINTING SPECIAL MASTER
26

372816.05-Los Angeles S2A

-15-

 
 Case4:02-cv-05849-PJH Document105 Filed10/19/04 Page1 of 24

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654

9 Attorneys for Plaintiffs
10

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 14

FRANCIE E. MOELLER et al,

15 Plaintiffs,

Case No. C 02 5849 MJJ ADR

16 v.
17 TACO BELL CORP.,
18

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: November 30, 2004

Defendant. 19

Time: 9:30 a.m.

20

21

22

23

24

25

26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Motion for Partial Summary Judgment

28

Case4:02-cv-05849-PJH Document105 Filed10/19/04 Page2 of 24

1

TABLE OF CONTENTS

2

3 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Relief Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 Points and Authorities in Support of Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10 I. Applicable Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

11

A. Partial Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

12

B. The Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

13

C. The Unruh Act and the California Disabled Persons Act . . . . . . . . . . . . . . . . . 7

14 II.

The Taco Bell Restaurants at Issue in this Motion Violate the ADA, Unruh and/or CDPA in Each of the Stages of a Typical Taco Bell Visit . . . . . . . . . . . . . . . . . 9

15

A. Getting to the Restaurant from the Street or from a Car or Van . . . . . . . . . . . 10

16

B. Parking and Getting out of a Van or Car . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

17

C. Getting Through the Door . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

18

D. Getting Through the Queue Line to the Counter . . . . . . . . . . . . . . . . . . . . . . . 16

19

E. Getting Drinks, Condiments and Tableware . . . . . . . . . . . . . . . . . . . . . . . . . . 18

20

F. Sitting Down to Eat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

21

G. Using the Restroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

22 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

23

24

25

26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Motion for Partial Summary Judgment

28

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Case4:02-cv-05849-PJH Document105 Filed10/19/04 Page3 of 24

1

TABLE OF AUTHORITIES

2

Cases

3

Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal.) . . . . . . . . . . . . . . 9

4

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5

D’Lil v. Stardust Vacation Club, No. CIV-S-00-1496 DFL PAN,

6

2001 WL 1825832 (E.D. Cal. Dec. 21, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7 Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 5

8 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

9 People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . . 8

10 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11 Sapp v. MHI P’ship, Ltd., 199 F. Supp. 2d 578 (N.D. Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . 5

12 United States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . . . 5

13

Statutes

14 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15 42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

16 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

17 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

18 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

19 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

20 Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

21 Cal. Health & Safety Code § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

22 Cal. Health & Safety Code § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

23

Regulations and Other Authorities

24 28 C.F.R. § 36.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

25 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

26
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1 Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A . . . . . . . . . . . . . . . . . passim

2 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

3 American National Standards Institute, Inc., ANSI A117.1-1961: American National Standard Specifications for Making Buildings and Facilities
4 Accessible to and Usable by, The Physically Handicapped . . . . . . . . . . . . . . . . . . . . . . . passim

5 Office of the State Architect & Department of Rehabilitation, California State Accessibility Standards - Title 24 CAC - Interpretive Manual . . . . . . . . . . . . . . . . . . . 9, 15, 20
6
Architectural and Transportation Barriers Compliance Board, ADAAG Manual: 7 a guide to the Americans with Disabilities Act Accessibility Guidelines . . . . . . . 11, 12, 15, 19

8 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9 56 Fed. Reg. 35,544 (July 26, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Attorneys for Plaintiffs

9

10 Attorneys for Plaintiffs

11

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 FRANCIE E. MOELLER et al,

15 Plaintiffs,
16 v.
17 TACO BELL CORP.,
18 Defendant.
19

Case No. C 02 5849 MJJ ADR PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: November 30, 2004 Time: 9:30 a.m.

20

21

NOTICE

22

On November 30, 2004 at 9:30 a.m., or as soon thereafter as this motion may be heard,

23 before the Honorable Martin J. Jenkins, Plaintiffs will, and hereby do, move for an order

24 granting partial summary judgment in their favor in the above-captioned action. This motion is

25 based on this Notice of Motion, and all accompanying attachments hereto.

26
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1

RELIEF SOUGHT

2

Plaintiffs seek partial summary judgment determining that 19 corporate-owned Taco

3 Bell restaurants in California violate Title III of the Americans with Disabilities Act, 42 U.S.C.

4 § 12101 et seq. (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh” or

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

6 “CDPA”). Plaintiffs seek only a determination of liability, reserving for later proceedings the

7 question of appropriate remedies -- declaratory, injunctive and monetary -- for such liability.

8

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

9

ISSUES TO BE DECIDED

10

Whether the 19 Taco Bell restaurants that are the subject of this motion are in violation

11 of the ADA, the Unruh Act and/or the CDPA based on the date each was built or altered and

12 the stipulated dimensions of various elements at each restaurant.

13

SUMMARY OF ARGUMENT

14

Plaintiffs -- a class of individuals who use wheelchairs or scooters for mobility -- bring

15 this lawsuit against Defendant Taco Bell Corporation (“Taco Bell”) under the ADA, Unruh and

16 CDPA, alleging that Taco Bell is in violation of these statutes because its corporate-owned

17 restaurants in California contain architectural barriers to class members. The case addresses

18 approximately 220 corporate-owned Taco Bell restaurants in California. Plaintiffs move for

19 summary judgment concerning a number of the barriers in 19 of those restaurants.

20

The ADA, Unruh and CDPA all require that facilities built or altered after a designated

21 date comply with certain standards for wheelchair access. The parties have stipulated to the

22 dimensions of certain architectural features at the 19 corporate-owned Taco Bell restaurants at

23 issue here. Defendant has produced documents that provide information concerning the dates

24 of construction and dates of certain alterations at these restaurants, and Plaintiffs have obtained

25 other such documents from the relevant building authorities. Plaintiffs move the Court to grant

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1 summary judgment by applying -- to the undisputed dimensions -- the federal or California

2 standards applicable to each restaurant on the date of construction and/or alteration.

3

For example, both the ADA and California accessibility standards state that the force

4 required to open an interior door may not exceed five pounds. So where the parties have

5 stipulated that the force required to open an interior door at a restaurant is 8.5 pounds, and the

6 restaurant was built or altered at a time when the five pound requirement was in effect,

7 Plaintiffs request that the Court grant summary judgment holding that door in question is in

8 violation of the ADA, Unruh and CDPA. The remainder of Plaintiffs’ motion follows this

9 precise pattern: it requests that the Court grant summary judgment in Plaintiffs’ favor where

10 the dimensions to which the parties have stipulated demonstrate that an element violates

11 accessibility standards in effect at the time the restaurant was built or altered.

12

Because the elements at issue in this motion are found in most -- and in many cases, all

13 -- Taco Bell restaurants, the Court’s decisions on these legal questions will also apply to many

14 or all of the remaining approximately 200 corporate-owned Taco Bell restaurants in California.

15

FACTS

16

This motion addresses barriers in 19 corporate-owned Taco Bell restaurants in

17 California. In order to determine whether an element is in violation of the law, it is necessary

18 to determine which standards apply, and to apply those standards to the existing dimensions. In

19 this case, the existing dimensions are undisputed as the result of a stipulation between the

20 parties.1 The date on which a restaurant was constructed, and the dates on which it was altered,

21 determine which standards are applicable. Information demonstrating the dates of construction

22 and alteration at the 19 restaurants at issue here comes from documents provided by Defendant

23 and obtained by Plaintiffs from relevant building authorities.

24

25

1

See Declaration of Amy F. Robertson (“Robertson Dec.”) at ¶¶ 3, 8, 12, 19, 25,

32, 37, 42, 46, 49, 54, 59, 64, 69, 73, 78, 81, 86, & 90.

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1

Plaintiffs have prepared a series of exhibits -- one for each store -- that provide

2 undisputed information concerning dates of construction and alteration, as well as an

3 explanation of which standards are made applicable based on those dates. Each exhibit

4 includes a table that identifies each element in violation, states the dimensions that the parties

5 have stipulated currently exist, and provides the applicable standard or standards with citations.

6

For example, the following row appears in the exhibit for Store 16909:

7

Element

Stipulated Dimension or Standard Required

8

Existing

When Built or Altered

Dimensions

9 Men’s & women’s restrooms: force 8.5 pounds required to open door.
10

May not exceed 5 pounds. Cal. Stds. (1994) § 3304(i.2)(1) DOJ Stds. § 4.13.11(b).

11

12 The element in question is the force required to open the men’s and women’s restroom doors.

13 The parties have stipulated that it is currently 8.5 pounds. Because the store was built in 1995,

14 both federal and California accessibility standards apply, and both limit the force required to

15 open interior doors to five pounds. The men’s and women’s restroom doors in Store 16909 are

16 thus in violation of the applicable accessibility codes.

17

Where a store has been altered, a single element may be governed by standards from

18 several different years -- including the standard in effect when the element was built, and the

19 standard when it was altered. Although the substantive requirements of the standards

20 applicable during each alteration are generally similar if not identical, each alteration represents

21 another juncture at which Taco Bell was required to -- but did not -- comply with disability

22 access laws.

23

ARGUMENT

24

The ADA, Unruh, and CDPA all require facilities built or altered after a designated date

25 to comply with certain standards for wheelchair access. The restaurants at issue in this Motion

26
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1 have all undergone construction or alteration subject to these standards but nevertheless have

2 barriers to access for their customers who use wheelchairs or scooters that put them in violation

3 of these standards, and thus of the ADA, Unruh and/or the CDPA.

4

5 I. Applicable Legal Standards

6

A. Partial Summary Judgment.

7

Summary judgment is appropriate where “the pleadings, depositions, answers to

8 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

9 genuine issue as to any material fact and that the moving party is entitled to judgment as a

10 matter of law.” Fed. R. Civ. P. 56(c). A plaintiff may move for summary judgment in his

11 favor “upon all or any part” of his claim. Id. Rule 56(a). “A summary judgment, interlocutory

12 in character, may be rendered on the issue of liability alone although there is a genuine issue as

13 to the amount of damages.” Id. Rule 56(c); see also id. Rule 56(d) (permitting the Court, when

14 not rendering judgment upon the whole case, to issue an order “specifying the facts that appear

15 without substantial controversy”).

16

A number of courts have held that partial summary judgment is appropriate where a

17 plaintiff has demonstrated -- through undisputed facts -- violations of accessibility standards

18 applicable under the ADA . See, e.g., Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24, 926

19 (9th Cir. 2001) (affirming in part district court’s decision granting partial summary judgment to

20 plaintiffs based on an application of ADA accessibility standards to stipulated facts); United

21 States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094, 1101 (C.D. Cal. 2003) (granting partial

22 summary judgment to plaintiffs based on an application of ADA accessibility standards to

23 undisputed dimensional information in plaintiffs’ expert’s report); Sapp v. MHI P’ship, Ltd.,

24 199 F. Supp. 2d 578, 583 (N.D. Tex. 2002) (granting partial summary judgment to plaintiffs

25 based on an application of ADA accessibility standards to undisputed facts).

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1

The parties have stipulated to the dimensions of various elements at 19 California

2 corporate-owned Taco Bell restaurants. As such, there is no genuine issue of fact as to any of

3 these measurements. Documents received from Defendant Taco Bell and/or from relevant city

4 or county building departments establish the dates on which the 19 restaurants were

5 constructed and/or altered. Summary judgment is appropriate because the undisputed

6 measurements of many of these architectural elements are in violation of state or federal

7 accessibility standards that were in effect at the time that the restaurants were constructed

8 and/or altered.

9

B. The Americans with Disabilities Act.

10

As this Court has recognized, the ADA was enacted in 1990 “‘to provide a clear and

11 comprehensive national mandate for the elimination of discrimination against individuals with

12 disabilities.’” Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606 (N.D. Cal. 2004)(quoting 42

13 U.S.C. § 12101(b)(1)); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (holding

14 that the ADA provides a “broad mandate” to eliminate discrimination against people with

15 disabilities). The statute recognizes that “the Nation’s proper goals regarding individuals with

16 disabilities are to assure equality of opportunity, full participation, independent living, and

17 economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8); see Moeller, 220

18 F.R.D. at 606.

19

Title III of the ADA prohibits disability discrimination by those who own or operate

20 places of public accommodation -- such as Taco Bell restaurants2 -- “in the full and equal

21 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of that

22 public accommodation. 42 U.S.C. § 12182(a). Title III requires that Taco Bell provide its

23 goods and services to persons with disabilities in an integrated setting, id. § 12182(b)(1)(B),

24

2

See 42 U.S.C. § 12181(7)(B) (restaurants are places of public accommodation

25 under title III).

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1 and that such persons be provided with equal opportunity to participate in and benefit from its

2 stores. Id. §§ 12182(b)(1)(A)(i) - (iii).

3

Title III also addresses architectural accessibility. All facilities built for first occupancy

4 after January 26, 1993 are required to be “readily accessible to and usable by” individuals with

5 disabilities. Id. § 12183(a)(1). To comply with section 12183(a)(1), a facility must be built in

6 conformance with the Department of Justice Standards for Accessible Design (“DOJ

7 Standards” or “DOJ Stds.”).3 28 C.F.R. pt. 36, app. A; see 28 C.F.R. § 36.406 (requiring

8 conformance with the Standards).4 In facilities altered after January 26, 1992, the altered

9 portion must comply with the DOJ Standards. 28 C.F.R. §§ 36.402(b)(2); 36.406(a). The DOJ

10 Standards contain detailed design specifications for public accommodations covering a variety

11 of architectural elements, including, for example, parking lots, food service lines, accessible

12 routes, and restrooms. See generally id.; see also Moeller, 208 F.R.D. at 606.

13

C. The Unruh Act and the California Disabled Persons Act.

14

Both the CDPA, which was enacted in 1968, and the Unruh Act, which was amended in

15 1987 to cover persons with disabilities, prohibit discrimination on the basis of disability in the

16 full and equal access to the services, facilities and advantages of public accommodations. Cal.

17 Civ. Code §§ 51(b) (Unruh) & 54.1(a)(1) (CDPA). All buildings constructed5 or altered6 after

18 July 1, 1970, must comply with standards governing the physical accessibility of public

19

3

The DOJ Standards are available on the Internet at www.ada.gov/adastd94.pdf.

20 The Americans with Disabilities Act Architectural Guidelines (“ADAAG”), promulgated by

the Architectural and Transportation Barriers Compliance Board, were adopted by the DOJ as 21 its Standards for Accessible Design. See 56 Fed. Reg. 35,544, 35,546, 35,602 (July 26, 1991).

As a result, many cases applying the DOJ Standards refer to them as “the ADAAG.” 22

4

The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott,

23 524 U.S. 624, 646 (1998).

24

5

Cal. Health & Safety Code § 19956.

25

6

Cal. Health & Safety Code § 19959.

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1 accommodations. Moeller, 208 F.R.D. at 607 (citing D’Lil v. Stardust Vacation Club, No.

2 CIV-S-00-1496 DFL PAN, 2001 WL 1825832, at *7 (E.D. Cal. Dec. 21, 2001)). From

3 December 31, 1981 until the present, the standards have been set forth in Title 24 of the

4 California Regulatory Code (the “California Standards” or “Cal. Stds.”). People ex rel.

5 Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983). Buildings constructed

6 between July 1, 1970 and December 31, 19817 are governed by the 1961 version of the

7 American National Standards Institute, Inc.’s “ANSI A117.1-1961: American National

8 Standard Specifications for Making Buildings and Facilities Accessible to and Usable by, The

9 Physically Handicapped” (“ANSI-61”). Id.8

10

Since 1981, the California Standards have stated that their purpose is “[t]o assure that

11 barrier-free design is incorporated in all buildings, facilities, site work and other developments

12 to which this Code applies to assure that they are accessible to, and usable by, physically

13 handicapped persons.”9

14

Also since that time, the California Standards have applied to all alterations to facilities,

15 requiring that the altered portion -- including a primary entrance to the building, the primary

16 path of travel to the altered portion of the facility, and restrooms serving the altered area -- be

17

18

19

7

As set forth below, post-1981 alterations to these buildings are subject to the

California accessibility regulations in effect at the time of the alteration.

20

8

Courtesy copies of the relevant sections of ANSI-61 and the California

21 Standards are attached as Exhibits A through G to the Appendix to Plaintiffs’ Motion for

Partial Summary Judgment (“Appendix”), filed herewith. Plaintiffs have designated the

22 California Standards by the year in which they became effective. The only exceptions to this

are 1987 and 1989. Plaintiffs were only able to locate the Interpretive Manual of the Office of

23 the State Architect for those years, which documents did not indicate an effective date.

Plaintiffs have used the dates 1987 and 1989, respectively, because those are the dates of

24 publication of the Interpretive Manuals and therefore the latest possible effective date.

25

9

Cal. Stds. (1981) § 2-101(b); Cal. Stds. (1984) § 2-101(b); Cal. Stds. (1987) § 2-

102(b); Cal. Stds. (1989), § 101A; Cal. Stds. (1994) 102.1(b); Cal. Stds. (1999) 101.2.

26

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1 brought into compliance with the then-applicable standards.10 “These requirements apply to all

2 remodeling jobs regardless of the valuation of the job.” Office of the State Architect &

3 Department of Rehabilitation, California State Accessibility Standards - Title 24 CAC -

4 Interpretive Manual (“Title 24 Interpretive Manual”)11 at 9 (1987) (emphasis in original). The

5 path of travel that is required to be brought into compliance “incorporates all elements

6 necessary to provide access to the remodeled area from the exterior arrival site. It can include

7 parking areas, walks, sidewalks, ramps, corridors, an elevator and doorways, etc., as necessary

8 to provide for arrival at the site and traversing to the actual interior area being remodeled.” Id.

9

A violation of a California Standard constitutes a violation of both the CDPA and the

10 Unruh Act. See, e.g., Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433, 439

11 (N.D. Cal. 1994). A violation of the ADA also constitutes a violation of both statutes. See

12 Cal. Civ. Code §§ 51(f) & 54(c).

13 II. The Taco Bell Restaurants at Issue in this Motion Violate the ADA, Unruh and/or
CDPA in Each of the Stages of a Typical Taco Bell Visit. 14
Taco Bell restaurants sell Mexican food quick-serve style. As such, most Taco Bell 15
restaurants consist of the same basic elements: a parking lot; entrance doors; often a queue 16
line, that is, guide rails causing customers line up to get to the counter; a counter at which 17
customers place their orders, pay, and pick up their food; tableware, condiment, and drink 18
dispensers; a seating area; and restrooms. Some Taco Bell restaurants do not include a queue 19
line; some consist entirely of an outdoor walk-up counter, and thus lack the entrance doors, 20
dispensers and dining area. Nevertheless, customers generally interact with Taco Bell 21

22

23

10 Cal. Stds. (1981) § 2-105(b)(11)(B)(4); Cal. Stds. (1984) § 2-105(b)(11)(B)(4);

24 Cal. Stds. (1987) § 2-110(b)11.B(4); Cal. Stds. (1989), § 110A(b)(11)(B)(4); Cal. Stds. (1994)

§ 110(11)(B)(4); Cal. Stds. (1999) § 1134B.2.1.

25

11

Appendix, Exhibit D.

26

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1 restaurants in very similar ways:12 they arrive (from the sidewalk or parking lot); approach and

2 go through the door; approach the counter (often through a queue line); order; pay; pick up

3 food, drinks, condiments and tableware; sit and dine (if they choose); and use the restroom (if

4 they choose). A typical outing to Taco Bell generally involves these common activities.

5

For customers with disabilities, each of the stages of such an outing can present barriers

6 that prevent the full and equal enjoyment of Taco Bell’s goods, services and facilities. The

7 DOJ and California Standards both contain provisions governing each one of these areas,

8 designed to ensure that they are “accessible to and usable by” individuals with disabilities, as

9 required by both the ADA, 42 U.S.C. § 12183(a), and California law.13 ANSI-61 -- applicable

10 to buildings built between 1970 and 1981 -- also contains provisions governing several of these

11 areas.

12

For ease of reference, Plaintiffs have organized the violations at the 19 restaurant into a

13 series of tables, attached as the introductory pages to Exhibits 1 through 19 to the Robertson

14 Declaration. Each exhibit provides the dates on which the restaurant was built and/or altered

15 and a table showing the elements of the restaurant that are in violation, each element’s

16 stipulated existing conditions, and the standards -- with citations -- required at the time of the

17 relevant construction or alterations. The remainder of this brief presents an overview of the

18 accessibility standards applicable to a typical outing to Taco Bell.

19

A. Getting to the Restaurant from the Street or from a Car or Van.

20

Customers who use wheelchairs must be able to get to the restaurant from the street or

21 from their cars or vans. Accordingly, both the California and DOJ Standards regulate the

22

23

24

12

litigation. 25

13

26

This description excludes the drive-through window, which is not part of this See supra n. 8.

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1 width, slope and cross-slope for such a path.14 “Slope” or “running slope” is the tilt of the

2 ground parallel to the direction of travel; “cross-slope” is the tilt of the ground perpendicular to

3 the direction of travel. See DOJ Stds. § 3.5 (definitions). Slope is expressed as either the ratio

4 of the height of the rise of the ground to the length of the run, or as the percentage equivalent to

5 that ratio. For example, a ramp that rises one foot over a length of 12 feet is said to have a

6 slope of 1:12 or 8.33%. Violation of the standards governing slope and cross slope can create

7 barriers to people who use wheelchairs. Excessive cross slopes “make travel by wheelchairs,

8 including many power chairs, difficult by causing front casters to veer. They also disrupt the

9 balance of force used in propelling both wheels of manual chairs.” Architectural and

10 Transportation Barriers Compliance Board, ADAAG Manual: a guide to the Americans with

11 Disabilities Act Accessibility Guidelines15 (“ADAAG Manual”) at 21; see also Title 24

12 Interpretive Manual at 123 (“Cross slopes are very difficult for wheelchair users.”)

13

California and DOJ Standards also regulate ramps and curb ramps that form parts of

14 accessible routes. See, e.g., DOJ Stds. §§ 4.7 (curb ramps); 4.8 (ramps); Cal. Stds. (1999)

15 §§ 1133B.5 (ramps); 1127B.5 (curb ramps). ANSI-61 contains basic requirements for walks

16 and ramps. ANSI-61 §§ 4.2.1 (walks); 5.1 (ramps).

17

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

18 Taco Bell violates the applicable standards for accessible routes, ramps and/or curb ramps at

19 the following 15 restaurants: 757; 991; 2423; 2755; 2801; 3007; 3231; 3579; 4704; 5539;

20 15614; 16909; 18687; 19509; and 21018.

21

22

23 14 See, e.g., DOJ Stds. §§ 4.3.3 (width), 4.3.7 (slope and cross slope); ANSI-61
24 § 4.2.1 (width); Cal. Stds. (1999) §§ 1133B.7.1 (width); 1133B.5.1 (slope); 1133B.7.1.3 (cross slope).
25 15 Excerpts from the ADAAG Manual are contained in Appendix Exhibit H.
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1

B. Parking and Getting out of a Van or Car.

2

Both the DOJ and California Standards regulate parking, and require a certain number

3 of accessible and van accessible parking spaces be provided based on the total number of

4 parking spaces in the lot. See, e.g., DOJ Stds. § 4.1.2(5)(a); Cal. Stds. (1999) § 1129B.1 &

5 Table 11B-6. Accessible parking spaces must be of a certain width, and must adjoin a five-

6 foot-wide access aisle, which provides room for a person using a wheelchair to transfer in and

7 out of a car. DOJ Stds. § 4.1.2(5)(a); Cal. Stds. (1999) § 1129B.4.1. Van accessible parking

8 spaces have the same width as accessible spaces, but are required to adjoin an eight-foot-wide

9 access aisle. DOJ Stds. § 4.1.2(5)(a) & (b); Cal. Stds. (1999) § 1129B.4.2.16 This extra space

10 permits a wheelchair-user to deploy a ramp or lift from his van, and have enough space to roll

11 completely off the ramp or lift, so that it can be retracted back into the van. See ADAAG

12 Manual at 32.

13

DOJ and California Standards also require signage indicating that a parking space is

14 accessible or van accessible and limit the allowable slope and cross slope of accessible spaces

15 and their access aisles. See, e.g., DOJ Stds. § 4.6.3; Cal. Stds. (1999) § 1129B.4.4. The latter

16 requirement is imposed because “level surfaces are important for wheelchair transfer to and

17 from vehicles.” Id. With too much slope, a manual wheelchair can roll away from the vehicle

18 before a person can transfer into it, leaving the person stranded and chairless.

19

The California Standards contain the additional requirement that a sign be posted at the

20 entrance to each parking lot stating: “‘Unauthorized vehicles parked in designated accessible

21 spaces not displaying distinguishing placards or license plates issued for persons with

22 disabilities may be towed away at owner’s expense. Towed vehicles may be reclaimed at _ _ _

23 _ _ _ _ or by telephoning _ _ _ _ .’ Blank spaces are to be filled in with appropriate

24

25

16 The California Standards did not require van accessible parking spaces until

1994. Cal. Stds. (1994) § 3107A(b)2.

26

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1 information as a permanent part of the sign.” See, e.g. Cal. Stds. (1999) § 1129B.5. This

2 makes sense: parking for people with disabilities is illusory if it can be used with impunity by

3 those who do not need it. In many of the 19 Taco Bell restaurants at issue in this motion, the

4 signs had been posted, but no information had been provided to fill in the blanks. The threat of

5 towing -- designed to limit the use of accessible spaces to those who are authorized -- thus

6 becomes an empty and useless threat.

7

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

8 Taco Bell violates the applicable standards for parking lots at all 19 restaurants.

9

C. Getting Through the Door.

10

Customers who use wheelchairs must be able to open and get through the door in order

11 to patronize a Taco Bell restaurant. The DOJ and California Standards and ANSI-61 regulate

12 doors, including the width, and the maneuvering clearance required in front and back, and to

13 each side, of a door. See, e.g., DOJ Stds. § 4.13.5 (width); 4.13.6 & Fig. 25 (maneuvering

14 clearances); Cal. Stds. (1987) § 2-3304(e) (width); 2-3304(h)(2) (clearances); ANSI-61

15 §§ 5.3.1 (width); 5.3.2 (clearances). The California Standards require that all primary

16 entrances be made accessible. See, e.g., Cal. Stds. (1987) § 3301(f)(1). A “primary entrance”

17 is “any entrance to a facility which has a substantial flow of pedestrian traffic to any specific

18 major function of the facility.” Id. at § 2-417.

19

Maneuvering clearances are generally described in terms of the push and pull sides of

20 the door -- that is, whether the door is swinging into the maneuvering space (pull side) or away

21 from it (push side) -- and the approach. A door may be approached straight on (front), from the

22 hinge side, or from the latch side. Examples of the application of this terminology can be seen

23 in DOJ Standards Figure 25 and the 2002 California Standards, Figures 11B-26A and 26B.

24

The diagram below was taken from Figure 11B-26A, with annotations added to show

25 the hinge and latch side approaches, and the location of the door jamb. Thus, for example, the

26
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1 1999 California Standards require a clear width of twelve inches on the push side beyond the

2 door jamb for a front approach where the door has a closer and a latch. Id. Fig. 11B-26A(a).

3 This is shown in the lower right-hand side of the diagram. In addition, as indicated, a clear area

4 of 18 inches is required beyond the door jamb on the pull side for interior doors; 24 inches for

5 exterior doors. The depth of the clear area on the push side is required to be at least 48 inches

6 and on the pull side, 60 inches. The remainder of Figures 11B-26A and 26B provide diagrams

7 for other approaches and required maneuvering clearances.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23 These clearances are necessary in order for people who use wheelchairs to be able to get

24 through a door independently. Clearance beyond the door jamb “is essential. This

25 maneuvering space is necessary for anyone using a wheelchair . . . because the person cannot

26
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1 easily move or step back while opening the door. . . . Latch side clearance is needed on the

2 push side to be able to operate a latch and maneuver through the door against the force of the

3 closer.” ADAAG Manual at 56; see also generally id. at 55-57.

4

The DOJ and California Standards govern the force necessary to open the door17 and the

5 usability of door hardware. See, e.g., DOJ Stds. § 4.13.9 (requiring door hardware to be

6 “usable with one hand without grasping, tight pinching or twisting of the wrist”); Cal. Stds.

7 (1987) § 2-3304(c)(3) (requiring that doors shall be operable without requiring the ability to

8 grasp the opening hardware). By limiting the force necessary to open the door and requiring

9 that door hardware be usable without the ability to grasp, the standards ensure that individuals

10 with impaired strength and/or manual dexterity are able to use doors independently.

11

The California Standards also require doormats to be secured, id. § 3301(f)(3), so that

12 they do not bunch under the wheels of a wheelchair and become an obstruction. See Title 24

13 Interpretive Manual at 81.

14

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

15 Taco Bell violates the applicable standards for doors at the following 16 restaurants: 112; 757;

16 991; 2755; 2778; 2801; 3007; 3053; 3132; 4704; 5539; 15614; 16909; 18687; 19509; and

17 21018.

18

19

20

21

22

23

24

17 The California Standards govern door force with respect to both exterior and

interior doors. See, e.g., Cal. Stds. (1987) § 2-3303(l)(2). The DOJ Standards only govern

25 door force with respect to interior doors. DOJ Stds. § 4.13.11(b). In addition, the DOJ

Standards govern the time the door takes to close. Id. 4.13.10.

26

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1

D. Getting Through the Queue Line to the Counter.

2

Queue lines are the barriers that are put in place to cause customers to form a single line

3 as they approach the counter, order and pick up their food. At Taco Bell restaurants, queue

4 lines are generally arranged like this:

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21 Carlos Azalde, Defendant’s Rule 30(b)(6) witness for queue lines and other issues testified that

22 queue lines were implemented in Taco Bell restaurants between 1983 and 1985 (Azalde Depo.

23 at 14-15),18 so the earliest standard that would apply would be that in the 1981 version of the

24 California Standards. The queue lines in the restaurants at issue in this motion fall under one

25

18

Robertson Dec. Ex. 22.

26

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1 of two standards. The queue lines installed between 1983 and 1993 fall under the requirement

2 from the 1981, 1984, 1987 and 1989 versions of the California Standards that cafeteria lines be

3 36 inches wide.19 Cal. Stds. (1981) § 2-611(C)(4); Cal. Stds. (1984) § 2-611(d)(4); Cal. Stds.

4 (1987) § 2-611(d)(4); Cal. Stds. (1989) § 611(d)(4).

5

Queue lines installed after January 26, 1993 continue to be required to meet the 36-inch

6 California Standard for cafeteria lines, Cal. Stds. (1994) § 3103A(b)4; Cal. Stds. (1999)

7 § 1104B.5.5; Cal. Stds. (2002) § 1104B.5.5, but must also comply with the requirements of the

8 DOJ Standards: either (1) that each lane be at least 36 inches wide with a turning radius of at

9 least 60 inches where a 180-degree turn is required; DOJ Stds. §§ 4.3.3 & 4.2.3, see also id.

10 § 5.5 (food service lines must be 36 inches wide); or (2) that each lane be at least 42 inches

11 wide with a width of at least 48 inches at the point of the turn. Id. § 4.3.3 & Fig. 7(b).

12

Taco Bell’s queue lines must comply with these DOJ Standards because they are part of

13 an “accessible route,” which is defined as “[a] continuous unobstructed path connecting all

14 accessible elements and spaces of a building or facility.” DOJ Stds. § 3.5. Doors and counters

15 are “elements” under the DOJ Standards. See id. (defining element), §§ 4.3.9 (doors), 5.2 &

16 7.2 (counters). As the route that customers are expected to follow from the door to the counter,

17 the queue line must comply with the requirements governing such routes, including those set

18 forth in the preceding paragraph.

19

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

20 Taco Bell violates the applicable standards for queue lines at the following 11 restaurants: 757;

21 991; 2423; 2755; 2778; 2801; 3132; 3579; 5539; 16909; and 19509.

22

23

24 19 Mr. Azalde agreed that Taco Bell’s queue lines were “food service lines.”
25 Deposition of Carlos Azalde in Colorado Cross Disability Coalition v. Taco Bell Corp., Civil Action No. 97-B-2135 (D. Colo.) at 35. (Robertson Dec. Ex. 23.)
26
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1

The California Standards also govern counter height, requiring counters to be between

2 28 and 34 inches high. Cal. Stds. (1994) § 3105A(l)4. This limitation is important in light of

3 the fact that people using wheelchairs are not able to reach as high as people who are able to

4 walk. The counters in restaurants 757 and 16909 are 36 inches high, and thus violate the

5 applicable California Standard.

6

E. Getting Drinks, Condiments and Tableware.

7

In Taco Bell restaurants, after a customer has picked up his food, he proceeds to an area

8 in which drinks, condiments and tableware are available from self-service dispensers. Both the

9 DOJ and the California Standards govern the height of controls and dispensers, and the

10 minimum clear floor space adjacent to such elements. See, e.g., DOJ Stds. § 5.6 (tableware

11 and condiment areas must comply with section 4.2, which addresses clear floor space reach

12 ranges); Cal. Stds. (1987) § 2-522(c) (clear floor space and reach ranges).

13

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

14 Taco Bell violates the applicable standards for dispensers at the following ten restaurants:

15 2755; 2801; 3007; 3579; 4704; 5539; 15614; 16909; 19509; and 21018.

16

F. Sitting Down to Eat

17

Although many Taco Bell customers take their meal “to go,” each Taco Bell offers seats

18 and tables, permitting customers to eat in the restaurant if they choose. The tables and, for the

19 most part, the seats, are fixed; however, a person using a wheelchair is unable to sit where a

20 fixed seat abuts a fixed table. As such, both the DOJ and the California Standards require that

21 five percent of all fixed seats or tables be accessible to people with disabilities. See, e.g., DOJ

22 Stds. § 4.1.3(18); see also Cal. Stds. (1987) § 2-611(d)(3) (one in 20 seats must be accessible);

23 Cal. Stds. (1994) § 3105A(l)1 (five percent of fixed seats must be accessible). In addition, the

24 DOJ Standards and -- since 1994 -- the California Standards prescribe the precise

25

26
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1 measurements for knee clearance at accessible seating positions and the clear floor space

2 adjacent thereto. DOJ Stds. § 4.32.2; Cal. Stds. (1994) § 3105A(1)2 & 3.20

3

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

4 Taco Bell violates the applicable standards for seating at the following six restaurants: 2423;

5 2801; 3007; 3132; 4704; 15614; and 18687.

6

G. Using the Restroom.

7

The DOJ and California Standards and ANSI-61 all contain provisions governing

8 restrooms, including: sinks (which are generally referred to as “lavatories”); toilets (which are

9 generally referred to as “water closets”); urinals; grab bars; and amenities such as soap and

10 paper towel dispensers. See, e.g., DOJ Stds. §§ 4.19 (lavatories); 4.16 (water closets); 4.18

11 (urinals); 4.26 (grab bars); 4.22.7 (dispensers); Cal. Stds. (1987) §§ 5-1504 (lavatories); 5-

12 1502 (water closets); 5-1503 (urinals); 2-1711(h)(1) (grab bars); 2-511(b)(2) (dispensers);

13 ANSI-61 §§ 5.6.3 (lavatories); 5.6.2(5) (water closets); 5.6.5 (urinals); 5.6.2(4) (grab bars);

14 5.6.6 (dispensers).

15

Failure of any of these elements to comply can make a restroom difficult or impossible

16 to use for a person in a wheelchair. For example, water closets must be of a certain height and

17 distance from other objects in order to permit people who use wheelchairs to transfer onto the

18 seat. See ADAAG Manual at 67. The height and clearances of lavatories and dispensers are

19 carefully calibrated to ensure that people who use wheelchairs can pull up under the lavatory,

20 open the tap, and access soap and towels. See id. at 75-76. Lavatory pipes are required to be

21 insulated, see DOJ Stds. § 4.19.4; Cal. Stds. § 5-1504(b), because, “[w]hen an individual loses

22 the use of his or her legs, a loss of feeling usually occurs . . . Persons with no sensation in their

23

24

25

20 An excellent illustration of the need for adequate knee clearance is set forth in

the ADAAG Manual. See id. at 113.

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1 lower extremities could be seriously burned without their knowledge on exposed pipes.” Title

2 24 Interpretive Manual at 157.

3

In addition, door widths, clearances and weights must be compliant in order to ensure

4 that a person using a wheelchair can get into the restroom in the first place.

5

As set forth in greater detail in Exhibits 1 through 19 to the Robertson Declaration,

6 Taco Bell violates the applicable standards for restrooms at all 19 restaurants.

7

Conclusion

8

For the reasons set forth above and in the exhibits to this brief, Plaintiffs respectfully

9 request that this Court grant partial summary judgment in their favor, holding that the elements

10 listed in Exhibits 1 through 19 to the Robertson Declaration are in violation of the applicable

11 standards.

12
Respectfully submitted, 13
FOX & ROBERTSON, P.C. 14

15

16
17
18
19
20 Executed: October 19, 2004
21

By: /s/ Amy F. Robertson Amy F. Robertson, pro hac vice Timothy P. Fox, Cal. Bar No. 157750 910 - 16th Street Suite 610 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

22

23

24

25

26
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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654

9 Attorneys for Plaintiffs
10

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

14

FRANCIE E. MOELLER et al,

15 Plaintiffs,

Case No. C 02 5849 MJJ ADR

16 v.
17 TACO BELL CORP.,
18

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR MODIFICATION OF CLASS DEFINITION

Defendant. 19

Date: December 7, 2004

Time: 9:30 a.m. 20

21

22

23

24

25

26
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27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

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1

TABLE OF CONTENTS

2 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION . . . . . . . . . . 2

4 ISSUE TO BE DECIDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8

I. The Class Satisfies The Commonality and Typicality Requirements . . . . . . . . 6

9

A. The Class as Certified Satisfies the Commonality Requirement . . . . . . 6

10

1. Rule 23 Does Not Require That Every

Issue Be Common to the Class . . . . . . . . . . . . . . . . . . . . . . . . . 6

11

2. Commonality Exists Because Defendant

12

Has Centralized Decision Making . . . . . . . . . . . . . . . . . . . . . . . 8

13

3. Alleged Differences among Defendant’s Restaurants,

and among Class Members, Do Not Defeat Commonality . . . . 8

14

4. Defendant’s Due Process Argument Supports Commonality . . 9

15

a. A Punitive Damages Analysis Is Inapposite Here . . . . 10

16

b. The Unruh and CDPA Statutory Damages

17

Provisions Should be Analyzed in Relation

to the Public Wrong They Address . . . . . . . . . . . . . . . 11

18

c. Even Applying a Punitive Damages Analysis, the

19

Analysis of the Unruh and CDPA Statutory

Damages Provisions Involves Common Questions . . . 14

20

B. The Class as Certified Satisfies the Typicality Requirement . . . . . . . . 15

21

II. The Class As Certified Satisfies Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 17

22

III. Managing the Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

23

A. Stage I: Liability and Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . 20

24

B. Stage II: Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

25

26
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1

1. Evidentiary Burdens During Stage II . . . . . . . . . . . . . . . . . . . . 21

2

2. Manageability Options for Stage II . . . . . . . . . . . . . . . . . . . . . 23

3

C. Adjudicating Class Members’ Damage Claims In One Case

Is Significantly Better Than Numerous Separate Cases . . . . . . . . . . . . 26

4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
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1

TABLE OF AUTHORITIES

2

Cases

3 Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd.,

197 F.R.D. 522 (S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

4

Accounting Outsourcing, LLC v. Verizon Wireless Pers.

5

Communications, L.P., 329 F. Supp. 2d 789 (M.D. La. 2004) . . . . . . . . . . . . . . . . . . 11

6 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 15

7 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal.1994) . . 8, 16, 18, 25

8 Ass’n for Disabled Ams. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002) . . . . . . . . . . . . 18

9 Bell v. Farmers Ins. Exch., 9 Cal. Rptr.3d 544 (Cal. App. 2004) . . . . . . . . . . . . . . . . . . . . . . 25

10 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

12 Boemio v. Love’s Rest., 954 F. Supp. 204 (S.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . 22-23

13 Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 22

14 Carson v. Giant Food, Inc., 187 F. Supp. 2d 462 (D. Md. 2002) . . . . . . . . . . . . . . . . . . . . . . . 18

15 Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365 (Tex. App. 2004) . . . . 13

16 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . . . . . . . . . . . . . . 21
18 DirecTV, Inc. v. Hoverson, 319 F. Supp. 2d 735 (N.D. Tex. 2004) . . . . . . . . . . . . . . . . . . . . 13
19 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . 21
20 Donald v. Cafe Royale, Inc., 266 Cal. Rptr. 804 (Cal. App. 1990) . . . . . . . . . . . . . . . . . . . . . 22
21 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . passim
22 Hankins v. El Torito Rests., Inc., 74 Cal. Rptr. 2d 684 (Cal. App. 1998) . . . . . . . . . . . . . . . . 11
23 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
24 Hartman v. Wick, 678 F. Supp. 312 (D.D.C. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25
25

26
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1 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3 In re Cordis Corp. Pacemaker Prod. Liab. Litig., No. MDL 850, C-3-86-543, 1992 WL 754061 (S.D. Ohio Dec. 23, 1992) . . . . . . . . . 18
4 In re Paxil Litig., 218 F.R.D. 242 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . 21, 24-25
6 Kaufman v. ACS Sys., Inc., 2 Cal. Rptr. 3d 296 (Cal. App. 2003) . . . . . . . . . . . . . . . . . . . . . 13
7 Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Ind. 1997) . . . . . . . . . . . . . . . . . . . . 11
8 Kraszewski v. State Farm Gen. Ins. Co., 912 F.2d 1182 (9th Cir. 1990) . . . . . . . . . . . . . 24-25
9 Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513 (9th Cir. 1993) . . . . . . . . . . . . . . 9
10 Lieber v. Macy’s West, Case No. C-96 02955 MHP (BZ) (N.D. Cal.) . . . . . . . . . . . . . . . . 23-4
11 Lightbourn v. County of El Paso, Texas, 118 F.3d 421 (5th Cir. 1997) . . . . . . . . . . . . . . . . . 18
12 Lowry’s Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 455 (D. Md. 2004) . . . . . . . . . . 11
13 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . passim
14 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
15 Native Am. Arts, Inc. v. Bundy-Howard, Inc., 168 F. Supp. 2d 905 (N.D. Ill. 2001) . . . . . . . 11
16 Parker v. Time Warner Entm’t Co., 331 F.3d 13 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . 14
17 Pitre v. W. Elec. Co., Inc., 843 F.2d 1262 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
18 Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493 (N.D. Ill. Oct. 19, 2001) . . . . . . . . . . 17
19 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2nd Cir. 2001) . . . . . . 17, 20-21
20 Salinas v. Roadway Exp., Inc., 735 F. 1574 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
21 Simon v. Philip Morris Inc., 200 F.R.D. 21 (E.D.N.Y.2001) . . . . . . . . . . . . . . . . . . . . . . . . . 24
22 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) . . . . . . . . . . . . . . . 10, 14-15
23 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24 St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919) . . . . . . . . . . . . . . . . . . . . . 12-13
25

26
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1 United States v. Citrin, 972 F.2d 1044 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2 United States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 21

3 Williams v. ConAgra Poultry Co., 378 F.3d 790 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 15

4 Young v. Pierce, 544 F. Supp. 1010 (E.D. Tex.1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5 Statutes
6 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7 42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
10 Cal. Civ. Code § 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11

12 Regulations and Other Authorities
13 Fed. R. Civ. Pro. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
14 Manual for Complex Litigation (Fourth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
15 Robert Newberg, Newberg on Class Actions, (4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . . 17, 25
16

17

18

19

20

21

22

23

24

25

26
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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Attorneys for Plaintiffs

9

10 Attorneys for Plaintiffs

11

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 FRANCIE E. MOELLER et al,
15 Plaintiffs,
16 v.
17 TACO BELL CORP.,
18 Defendant.
19

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR MODIFICATION OF CLASS DEFINITION
Date: December 7, 2004
Time: 9:30 a.m.

20

21

NOTICE

22

On December 7, 2004 at 9:30 a.m., Defendant’s Motion for Modification of Class

23 Definition, and Plaintiffs’ opposition to that motion, will be heard before the Honorable Martin

24 J. Jenkins.

25

26
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1

POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION

2

ISSUE TO BE DECIDED

3

Whether there exists any reason to modify the definition of the class that has been

4 certified in this case.

5

INTRODUCTION

6

Plaintiffs bring suit to challenge architectural barriers at corporate Taco Bell restaurants

7 in California under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

8 (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh” or “the Unruh

9 Act”), and/or the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the “CDPA”).

10 Less than a year ago, this Court certified the following class under Rule 23(b)(2) of the Federal

11 Rules of Civil Procedure:

12

All individuals with disabilities who use wheelchairs or electric scooters for

mobility who, at any time on or after December 17, 2001, were denied, or are

13

currently being denied, on the basis of disability, full and equal enjoyment of the

goods, services, facilities, privileges, advantages, or accommodations of

14

California Taco Bell corporate restaurants.

15 Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004).

16

In certifying this class, the Court joined the overwhelming majority of courts that have

17 held that classes of persons with disabilities challenging alleged architectural barriers satisfy

18 the requirements of Rule 23. The Court granted class certification after carefully considering,

19 and rejecting, Defendant’s argument that certification should be denied because of alleged

20 differences among its restaurants and among class members. Defendant did not file a timely

21 appeal or motion for reconsideration of this Court’s ruling on class certification. Instead,

22 months after the deadline for appeal, Defendant filed the instant Motion for Modification of

23 Class Definition (“Def.’s Mot.” or “Defendant’s Motion”). Defendant’s Motion is little more

24 than a motion for reconsideration. Defendant offers no evidence or arguments -- old or new --

25 that justify revisiting or amending this Court’s decision certifying the class.

26
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1

Lacking any new evidence or valid legal arguments, Defendant resorts to speculation

2 and exaggeration, in an attempt to show that the damages phase of this case will be

3 unmanageable. To the contrary, adjudicating damages in this case will be straightforward and

4 eminently manageable. During Stage I, the Special Master will provide the measurements from

5 which this Court will be able to determine both which elements in Defendant’s restaurants are

6 in violation of applicable statutes and whether Defendant has engaged in a pattern and practice

7 of disability discrimination. If Plaintiffs establish a pattern and practice of discrimination, then

8 class members during Stage II will be entitled to a presumption that they were discriminated

9 against on the basis of disability. Stage II will commence with notice and a simple claims form

10 for class members to submit. Only those class members who submit a claims form will be

11 entitled to recover damages, and only those architectural elements encountered by those class

12 members will be at issue. Thus, Defendant’s speculative estimates concerning class size and

13 manageability are vastly exaggerated and, at a minimum, premature. Once the claims forms are

14 received, there a number of management options available to the Court to adjudicate damages.

15 For the reasons set forth herein, Defendant’s Motion should be denied.

16

FACTS

17

This case was filed in December 2002, and the first year of this case was devoted to the

18 issue of whether the class in this case should be certified. The parties briefed this issue during

19 the fall of 2003, and on February 23, 2004, this Court certified the class. See Moeller v. Taco

20 Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004). Defendant now moves to decertify the class

21 damage claims because of allegedly new evidence.

22

In its decision certifying the class, this Court found that the class met the commonality

23 requirement of Rule 23(a)(2) because: (1) the state of architectural elements at Defendant’s

24 restaurants, and the legal adequacy of such elements, were issues of fact and law common to all

25

26
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1 class members; and (2) Defendant’s centralized decision-making weighed “heavily towards a

2 finding of commonality, if it [did] not establish commonality outright.” Id. at 609-10.

3

Nothing in Defendant’s Motion undermines either of those two bases; indeed, this

4 Court’s finding that Defendant has a centralized decision-making structure is reinforced by

5 Defendant’s Motion, which demonstrates that even such routine, day-to-day operations as

6 repair, maintenance and minor remodeling at Defendant’s restaurants are centralized. (See

7 Decl. of Jaime de Beers in Support of Def.’s Mot. for Modification of Class Definition (“De

8 Beers Decl.”) at ¶¶ 2-3 (attached to Def.’s Mot.).)

9

Despite Defendant’s claim that its Motion is based on points that “were not apparent

10 during the original certification process,”1 virtually every issue it now raises was previously

11 asserted in its original Defendant’s Response Brief in Opposition to Plaintiffs’ Motion for

12 Class Certification (the “2003 Opposition Brief” or “2003 Opp. Br.”), and rejected by this

13 Court in the order certifying the class. For example, among the facts that Defendant now

14 contends were not apparent during the original certification process are that class members are

15 different, its restaurants are different, and its restaurants change over time. Defendant asserted

16 every one of these points in its 2003 Opposition Brief. (See id. at 11 (arguing that “the

17 damages sought by plaintiffs . . . require particularized findings for each class member”); 7

18 (contending that Defendant’s restaurants have “an infinite number of seating layouts and

19 different types of condiment stations”); & 8 (asserting that “[t]he force required to open

20 exterior entrances vary [sic] from store to store and from day to day,” and “[t]he presence of

21 parking or restroom signage is highly changeable, subject to weathering, vandalism or removal

22 by members of the public.”).)

23

24

25

1

Def.’s Mot. at 2.

26
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1

Defendant also dramatically asserts that “Plaintiffs have revealed” that an accessibility

2 survey will examine “over 600 accessibility elements” at each restaurant. (Def.’s Mot. at 3.)

3 This is referring to the line items in the Special Master’s survey form jointly drafted by the

4 parties, line items that simply track the requirements of the applicable accessibility standards.

5 (See [Proposed] Order Appointing Special Master, Ex. B.) Far from being a revelation by

6 Plaintiffs, the line items reflect California standards that have been in place since 1970, and

7 federal standards that have been in place since 1993, all of which are noted in the form. Id. In

8 any event, Defendant argued in its 2003 Opposition Brief -- using the phrase “laundry list” no

9 fewer than three times -- that there were many different elements at stake in the litigation.

10 (2003 Opp. Br. at 2-4.) And the Court, of course, was fully aware of the scope of the

11 Department of Justice and California standards when it certified the class. See, e.g., Moeller,

12 220 F.R.D. at 606 (“The DOJ Standards contain detailed design specifications for public

13 accommodations covering a variety of architectural elements, including, for example, parking

14 lots, food service lines, accessible routes, and restrooms.”).

15

Finally, Defendant asserts that the Pilot Program surveys “established no pattern of non-

16 compliance” among the 20 stores. (Def.’s Mot. at 3.) This is simply a recycling of

17 Defendant’s argument that the stores are different (2003 Opp. Br. at 6-8), an argument

18 considered and rejected by this Court. Moeller, 220 F.R.D. at 609 (“The ‘unique architecture’

19 argument has been rejected by a number of courts in disability cases.”).

20

In any event, the Pilot Program survey demonstrated significant patterns of non-

21 compliance. For example, as demonstrated in Plaintiffs’ Motion for Partial Summary

22 Judgment, at least 16 of the 20 restaurants surveyed had non-compliant doors, 11 restaurants

23 had non-compliant queue lines, and 19 restaurants had non-compliant restrooms. (Pls.’ Mot.

24 for Partial Summ. J. at 15, 17 & 20.) This pattern of non-compliance was observed despite the

25 fact that the Pilot Program stores were selected to be as different as possible. The

26
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1 Memorandum of Understanding between the parties assigned to Taco Bell the task of selecting

2 the 20 Pilot Program stores and mandated that its “selection criteria shall be designed to 3 achieve a variety of architectural and design conditions.”2

4

ARGUMENT

5

In its decision certifying the class in this case, the Court held that the class satisfied the

6 requirements of Rule 23(a) and Rule 23(b)(2). Moeller, 220 F.R.D. at 608-13. Defendant now

7 contends that the class does not satisfy the commonality and typicality requirements of Rule

8 23(a), and does not satisfy the requirement under Rule 23(b)(2) that injunctive relief

9 predominate over monetary relief. As set forth below, Defendant is incorrect.

10 I. The Class Satisfies The Commonality and Typicality Requirements.

11

The Court previously held that the class met the commonality and typicality

12 requirements. While it is true that Rule 23(c)(1) permits this Court to revisit class certification

13 at any time during the litigation, Defendant has not provided this Court with any reason to do

14 so. Defendant’s single new legal theory -- relating to due process -- is wrong; properly

15 understood, any question of due process reinforces rather than undermines commonality.

16

A. The Class as Certified Satisfies the Commonality Requirement.

17

1. Rule 23 Does Not Require That Every Issue Be Common to the

Class.

18

The Court certified the class because, among other reasons, “the state of [architectural]

19

elements at Defendant’s restaurants, and the legal adequacy of such elements, are issues of fact

20

and law common to all class members.” Moeller, 220 F.R.D. at 609. Defendant does not

21

22

2

The Memorandum of Understanding strictly prohibited the parties from

submitting any aspect of the pilot program other than the dimensions of measured elements. 23 Because of this, Plaintiffs were careful, in their motion for summary judgment, simply to state

that the measurements were stipulations, without further discussion of how they came to be so. 24 (See, .e.g, Pls.’ Mot. for Partial Summ. J. at 2.) Because Defendant appears to be comfortable

discussing the origins of and procedures for the Pilot Program (see Def.’s Mot. at 6-7), 25 Plaintiffs assume they will not object to the discussion in text.

26
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1 challenge this finding, and does not dispute that there are common legal and factual issues

2 shared by the class. Instead, Defendant argues that commonality is defeated because there are

3 individual questions relating to damages.

4

Defendant’s analysis is contrary to the most basic principles of Rule 23(a)(2):

5 commonality does not require that every factual and legal question be common to the class; it

6 simply requires that there be some common questions. The Ninth Circuit has made this

7 abundantly clear: “Rule 23(a)(2) has been construed permissively. All questions of fact and

8 law need not be common to satisfy the rule.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

9 (9th Cir. 1998) (emphasis added). Indeed, the Ninth Circuit has specifically rejected the

10 argument that differences in class members’ damages claims defeat commonality. Id. (holding

11 that the commonality requirement is met where the class has “shared legal issues with

12 divergent factual predicates, . . . [or] a common core of salient facts coupled with disparate

13 legal remedies within the class.”) (emphasis added); see also Blackie v. Barrack, 524 F.2d 891,

14 905 (9th Cir. 1975) (“The amount of damages is invariably an individual question and does not

15 defeat class action treatment.”).

16

In this case, there is no dispute that the class shares common legal and factual issues,

17 and this is sufficient to satisfy Rule 23(a)(2), despite any differences in class member’s

18 damages claims.

19

Indeed, as set forth below, there are many questions relevant to damages that are

20 common to the class, including, for example: What were the conditions at a given restaurant

21 for a given period of time? Does a class member who knows that an architectural element is

22 inaccessible have to engage in the futile gesture of attempting to access the element in order to

23

24

25

26
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1 recover damages? Is a class member who manages, with difficulty, to access a non-compliant 2 element entitled to damages?3

3

2. Commonality Exists Because Defendant Has Centralized Decision

Making.

4

This Court also held, in certifying the class, that “centralized decision-making is an

5

additional factor weighing heavily towards a finding of commonality, if it does not establish

6

commonality outright.” Moeller, 220 F.R.D. at 610. This conclusion is bolstered by Ms. de

7

Beers’s declaration, attached to Defendant’s Motion, demonstrating that one person is

8

responsible for overseeing the repair, maintenance and minor remodeling projects at 136 Taco

9

Bell restaurants in Northern California. (De Beers Decl. at ¶¶ 2-3.)

10

3. Alleged Differences Among Defendant’s Restaurants, and Among

11

Class Members, Do Not Defeat Commonality.

12

Defendant’s argument that differences in its restaurants defeat commonality was

13 expressly considered and rejected by this Court in its decision granting certification. Moeller,

14 220 F.R.D. at 609 (rejecting Defendant’s argument that commonality does not exist because its

15 restaurants have “an infinite number of seating layouts and different types of condiment

16 stations.”). There is no dispute that the class challenges “the same categories of design

17 features” -- including, for example, parking lots, entrances, queue lines, counters, dispensers,

18 seating areas and restrooms -- and that this satisfies the commonality requirement. Id. (quoting

19 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 449 (N.D. Cal.1994)).

20

Defendant also contends that differences in the class members’ disabilities and mobility

21 devices precludes a finding of commonality. A similar argument was raised by the defendant

22 in Armstrong v. Davis, 275 F.3d 849, 854 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002),

23 which involved a class of persons with a wide range of disabilities, including persons with

24 hearing impairments, vision impairments, developmental disabilities, learning impairments,

25

3

See infra pp. 27-28.

26

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1 and mobility impairments. The Ninth Circuit held that “commonality is satisfied where the

2 lawsuit challenges a system-wide practice or policy that affects all of the putative class

3 members.” Id. at 868. Because the class members “suffer[ed] similar harm from the

4 [defendant’s] failure to accommodate their disabilities,” the commonality requirement was met.

5 Id.; see also Arnold, 158 F.R.D. at 444, 449 (finding commonality among members of a class

6 that included both people who use wheelchairs and those who are semi-ambulatory -- that is,

7 people who walk “using crutches, braces, or walkers.”).

8

The class in this case -- consisting only of persons who use wheelchairs or scooters for

9 mobility -- is much more homogenous than either of the classes in Armstrong or Arnold. For

10 example, there is a much more significant difference between the harm suffered by someone

11 with a vision impairment and that suffered by someone with a mobility impairment -- both

12 members of the Armstrong class -- than among the members of the class in this case, which is

13 limited to persons who use wheelchairs or scooters. Armstrong and Arnold thus demonstrate

14 that the class in this case satisfies the commonality requirement.

15

4. Defendant’s Due Process Argument Supports Commonality.4

16

Plaintiffs seek the statutory minimum damages of $4,000 under Unruh, and $1,000

17 under the CDPA, for each instance that a class member was aggrieved by Defendant’s

18 violations of these statutes during the limitations period. Defendant, relying on an analysis

19 used by the Supreme Court to determine whether punitive damages awards by juries violate

20

21

22

4

Defendant incorrectly contends that establishing that a statutory damages award

23 complies with due process is an element of a class member’s claim. (Def.’s Mot. at 15.)

Defendant, of course, bears the burden of demonstrating that the Unruh and CDPA statutory

24 penalty provisions violate due process. Cf. Kyle Rys., Inc. v. Pac. Admin. Servs., Inc., 990

F.2d 513, 518-19 (9th Cir. 1993) (holding that “‘the burden is on one complaining of a due

25 process violation to establish that the legislature has acted in an arbitrary and irrational way.’”

(Citation omitted.)).

26

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1 due process (“punitive damages analysis”),5 argues that commonality is defeated because this

2 Court must engage in a “case-by-case” punitive damages analysis of each class member’s claim

3 to determine whether an award of statutory minimum damages violates due process. (Def.’s

4 Mot. at 24-25.) Defendant is wrong: (a) Defendant applies the wrong analytical framework --

5 it is well established that a punitive damages analysis is irrelevant to determining whether

6 statutory damages provisions violate due process; (b) the proper analysis involves a comparison

7 of the Unruh and CDPA statutory damages provisions with the public (not individual) wrong

8 they are intended to address, an analysis common to the class; and (c) even applying the

9 punitive damages analysis, the analysis involves common questions.

10

a. A Punitive Damages Analysis Is Inapposite Here.

11

Because the statutory damages in this case were set by the California legislature, a

12 punitive damages analysis -- which limits a jury’s determination of punitive damages -- is

13 inapposite.

14

The reason why a punitive damages analysis does not apply to statutory damages

15 provisions determined by a legislature is that a court owes deference to the legislature that it

16 does not owe to a jury. This point was made clear in BMW of North America, Inc. v. Gore,

17 517 U.S. 559, 562-63 (1996), in which the Court considered due process limits on a jury award

18 of punitive damages. The Court held that courts must “‘accord “substantial deference” to

19 legislative judgments concerning appropriate sanctions for the conduct at issue.’” Id. at 583

20 (citations omitted). As a result, the Court expressly adopted -- as one of the factors that courts

21 should use in a punitive damages analysis -- a comparison of the punitive damages award with

22 comparable legislatively-determined civil penalty: the closer the amount of punitive damages

23

24

5

See Honda Motor Co. v. Oberg, 512 U.S. 415, 418 (1994) (considering jury

25 award of punitive damages); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562-63 (1996); State

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 412 (2003) (same).

26

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1 to the amount of a statutory penalty that could have been assessed for the conduct, the less

2 likely it is that the punitive damages award violates due process. See id. at 583.

3

Gore illustrates the error of Defendant’s contention that a punitive damages analysis

4 should apply to statutory damages provisions. First, Defendant’s argument fails to recognize

5 the “substantial deference” that a court owes to legislative judgments concerning appropriate

6 sanctions for conduct. Second, Defendant’s argument would require this Court, consistent with

7 Gore, to engage in the absurd exercise of comparing the Unruh and CDPA statutory damages

8 with themselves. As a result, many courts have explicitly declined to apply a punitive damages 9 analysis in determining whether statutory damages provisions violate due process.6

10

b. The Unruh and CDPA Statutory Damages Provisions Should

be Analyzed in Relation to the Public Wrong They Address.

11

Using the appropriate analysis, the question whether the Unruh and CDPA statutory

12

damages provisions violate due process is not determined by whether the amount of damages

13

sought by a class member is proportional to the harm he suffered,7 but rather by the relation

14

between the statutory damages provisions and the public wrong that they are meant to address.

15

16

6

See, e.g., Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162, 1165 (S.D. Ind.

17 1997) (“We decline to extend the holding of Honda Motor to require judicial review of

statutorily prescribed damage awards that may exceed the amount of actual loss proven at

18 trial.”); Native Am. Arts, Inc. v. Bundy-Howard, Inc., 168 F. Supp. 2d 905, 914 n.6 (N.D. Ill.

2001) (refusing to apply Gore factors to statutory penalties on the grounds that punitive

19 damages are different than statutory penalties and that courts owe substantial deference to

legislate determinations); Accounting Outsourcing, LLC v. Verizon Wireless Pers.

20 Communications, L.P., 329 F. Supp. 2d 789, 808-09 (M.D. La. 2004) (refusing to apply

punitive damages factors in analyzing whether statutory penalties violate due process); Lowry’s

21 Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 455, 460 (D. Md. 2004) (same).

22

7

Plaintiffs do not mean to suggest that a class member’s damages resulting from

being aggrieved by architectural barriers is less that the minimum damages under Unruh

23 ($4,000) or the CDPA ($1,000). Indeed, fact-finders in similar, individual cases involving

architectural barriers have awarded far greater damages. See, e.g., Hankins v. El Torito Rests.,

24 Inc., 74 Cal. Rptr. 2d 684, 687 (Cal. App. 1998) (plaintiff awarded $80,000 in case involving

inaccessible restroom). But the point here is that the appropriate due process analysis

25 compares the statutory damages with the public harm that they address, an issue common to the

class.

26

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1 Such provisions are constitutional as long as they are not so severe and oppressive as to be

2 wholly disproportionate to that wrong. Unruh and the CDPA easily meet this standard. In any

3 event, the legal question whether the statutory damages provisions of those statutes meet due

4 process requirements is a class-wide question.

5

The seminal case on the constitutionality of statutory damages provisions is St. Louis,

6 I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919). In Williams, a railroad company collected

7 66 cents more than the fare prescribed by Arkansas law from two passengers. Id. at 64. The

8 passengers subsequently brought suit and each recovered $75 pursuant to an Arkansas statute

9 that set forth a penalty of “not less than fifty dollars nor more than three hundred dollars” for

10 each violation of the fare restrictions. Id. The railroad company challenged the statutory

11 penalty provision on the ground that it violated due process.

12

The Court found that the statutory penalty was constitutional as long as it was not “so

13 severe and oppressive as to be wholly disproportioned to the offense and obviously

14 unreasonable.” Id. at 66-67 (citations omitted); see also United States v. Citrin, 972 F.2d 1044,

15 1051 (9th Cir. 1992) (quoting this passage from Williams). The Court held that this analysis

16 required a comparison between the statutory penalty and the public harm addressed by the

17 statute, not the harm suffered by any single passenger. Williams, 251 U.S. at 66. Significantly,

18 the Court held that the penalty need not “be confined or proportioned to [an individual

19 passenger’s] loss or damages; for, as it is imposed as a punishment for the violation of a public

20 law, the Legislature may adjust its amount to the public wrong rather than the private

21 injury . . .” Id. Indeed, the Court noted that

22

[w]hen the penalty is contrasted with the overcharge possible in any instance it

of course seems large, but . . . its validity is not to be tested in that way. When it

23

is considered with due regard for the interests of the public, the numberless

opportunities for committing the offense, and the need for securing uniform

24

25

26
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1

adherence to established passenger rates, we think it properly cannot be said to

be so severe and oppressive as to be wholly disproportioned to the offense or

2

obviously unreasonable.

3 Id. at 67.

4

Numerous courts have held that statutory damages that far exceed an individual

5 plaintiff’s actual damages nevertheless satisfy due process when the statutory damages are

6 intended to deter public wrongs. See, e.g., Chair King, Inc. v. GTE Mobilnet of Houston, Inc.,

7 135 S.W.3d 365, 385-86 (Tex. App. 2004) (holding that $500 statutory damages for sending an

8 unsolicited facsimile advertisement satisfied due process even though actual damages were two

9 to forty cents because the statute “was not designed solely to compensate each private injury

10 caused by unsolicited fax advertisements. It also was intended to address and deter the overall

11 public harm caused by such conduct.”); Kaufman v. ACS Sys., Inc., 2 Cal. Rptr. 3d 296, 326

12 (Cal. App. 2003) (holding that $500 statutory damages for sending an unsolicited facsimile

13 advertisement satisfied due process); DirecTV, Inc. v. Hoverson, 319 F. Supp. 2d 735, 740

14 (N.D. Tex. 2004) (due process not violated where statute provided for damages even though

15 the plaintiff suffered no actual damages).

16

The rationale of Williams and its progeny is fully applicable here. As Taco Bell

17 acknowledges, the statutory damages provisions of Unruh and the CDPA are designed to deter

18 conduct that harms the public. (Def.’s Mot. at 22.) Indeed, one rationale for the statutory

19 damages provisions of Unruh and the CDPA -- that they are necessary to deter defendants who

20 “have hundreds or thousands of transactions that violated the acts and which unjustly enriched” 21 them8 -- is one of the primary reasons cited in Williams supporting statutory damages that

22 exceed actual damages. Williams, 251 U.S. at 67 (holding that a statutory penalty satisfies due

23 process when it is intended to deter “the numberless opportunities for committing the

24

8

Def.’s Mot. at 22 (quoting Daniel Pone, Assembly Third Reading of AB 587,

25 2001-02 Reg. Session, Judiciary Committee Report, pp. 1-2 (Mar. 26, 2001)).

26
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1 offense”). This justification is particularly appropriate here, where the Defendant has engaged

2 in countless transactions over several decades in restaurants that violate accessibility

3 regulations, and continues to do so despite the fact that it has been sued repeatedly for these

4 violations, and despite the fact that Defendant’s restaurants apparently undergo regular

5 maintenance and modifications without coming into compliance with accessibility

6 requirements. (See De Beers Decl. at ¶¶ 6-9; Pls.’ Mot. for Partial Summ. J., exs. 1-19.)

7

c. Even Applying a Punitive Damages Analysis, the Analysis of

the Unruh and CDPA Statutory Damages Provisions Involves

8

Common Questions.

9

Even using a punitive damages analysis, the question whether the Unruh and CDPA

10 statutory damages provisions violate due process is a common question shared by the class.

11 Significantly, Defendant’s argument that due process is an individual issue includes no

12 supporting cases. To the contrary, one case cited by Defendant in another section of its brief,

13 Parker v. Time Warner Entertainment Co., 331 F.3d 13 (2d Cir. 2003), reversed an order

14 denying class certification and analyzed the due process question on a classwide basis. The

15 Second Circuit reached no ultimate conclusion concerning whether potential class damages

16 satisfied due process -- the court was reversing for additional discovery, id. at 21, -- but did

17 note: “it may be that in a sufficiently serious case the due process clause might be invoked, not

18 to prevent certification, but to nullify that effect and reduce the aggregate damage award.” Id.

19 at 22 (emphasis added).

20

Ultimately, State Farm was an individual case in which the Court was concerned that

21 the jury had considered conduct by the defendant in other states that had not directly affected

22 the plaintiffs. State Farm, 538 U.S. at 422-23. As this Court has noted, the class action

23 mechanism has sufficient safeguards to address that concern, for example, “ensur[ing] that any

24 award of punitive damages to the class is based solely on evidence of conduct that was directed

25 toward the class” and limiting awards of punitive damages to class members who were harmed

26
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1 by the defendant’s conduct. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 172 (N.D. Cal.

2 2004). Although Plaintiffs do not concede that Unruh or CDPA statutory damages are

3 punitive, it is clear that any such damages will be based on conduct directed toward the class,

4 and recovered only by class members who were harmed by this conduct.

5

Indeed, a class action is an excellent way to address the problem raised by State Farm.

6 As the Eighth Circuit has held -- in reversing an individual punitive award --

7

In [State Farm], the Supreme Court emphasized that courts cannot award

punitive damages to plaintiffs for wrongful behavior that they did not

8

themselves suffer. Tying punitive damages to the harm actually suffered by the

plaintiff prevents punishing defendants repeatedly for the same conduct: If a

9

jury fails to confine its deliberations with respect to punitive damages to the

specific harm suffered by the plaintiff and instead focuses on the conduct of the

10

defendant in general, it may award exemplary damages for conduct that could be

the subject of an independent lawsuit, resulting in a duplicative punitive

11

damages award. Where there has been a pattern of illegal conduct resulting in

harm to a large group of people, our system has mechanisms such as class action

12

suits for punishing defendants. Punishing systematic abuses by a punitive

damages award in a case brought by an individual plaintiff, however, deprives

13

the defendant of the safeguards against duplicative punishment that inhere in the

class action procedure.

14 Williams v. ConAgra Poultry Co., 378 F.3d 790, 797 (8th Cir. 2004) (emphasis added). The
15

class action mechanism is thus ideally suited to ensuring the goals of State Farm are met: the

16

defendant is punished for behavior affecting an entire class of people, but only for behavior

17

toward that class, and class members -- bound by res judicata -- are not able to engage in

18 duplicative litigation.
19

B. The Class as Certified Satisfies the Typicality Requirement.

20

With respect to Rule 23(a)(3) typicality, “[t]he Ninth Circuit does ‘not insist that the

21

named plaintiffs’ injuries be identical with those of the other class members, only that the 22
unnamed class members have injuries similar to those of the named plaintiffs and that the

23

injuries result from the same injurious course of conduct.’” Moeller, 220 F.R.D. at 611

24

(quoting Armstrong, 275 F.3d at 869); see also In re Paxil Litig., 218 F.R.D. 242, 246 (C.D.

25

Cal. 2003) (holding that typicality does not require that “[t]he physical, emotional, or monetary 26

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1 damages sustained by Plaintiffs . . . be identical or even similar, so long as those differences do

2 not negatively affect the viability of the legal theories under which they proceed.”).

3

Defendant contends that typicality does not exist in this case because “each plaintiff’s

4 entitlement to damages will depend on his or her particular disability, the particular

5 accessibility violation alleged, and whether the technical violation actually constituted a barrier

6 to the particular plaintiff.” (Def.’s Mot. at 25.) Again, Defendant made, and this Court 7 rejected, virtually the identical argument in its 2003 Opposition Brief.9

8

In any event, Defendant’s argument is based on its contention that the typicality

9 requirement is not met unless “a named plaintiff who proves his or her claim will necessarily

10 have proved” another class member’s claim. Def.’s Mot. at 25. This simply is not what Rule

11 23(a)(3) requires. This rule does not require “‘that the claims of the class representative[s] . . .

12 be identical or substantially identical to those of the absent class members.’” Staton v. Boeing

13 Co., 327 F.3d 938, 957 (9th Cir. 2003) (citation omitted). The typicality requirement is met if

14 the named plaintiffs’ claims “‘arise from the same remedial and legal theories’ as the class

15 claims.” Wal-Mart, 222 F.R.D. at 166 (quoting Arnold, 158 F.R.D. at 449).

16

That standard is easily met here. The named plaintiffs’ claims, like those of the class,

17 arise frm the same legal and remedial theory: that they are entitled to minimum statutory

18 damages un California law for each instance that they were denied equal access as a result of

19 barriers in Defendant’s restaurants.

20

21

22

23

24

9

2003 Opp. Br. at 14 (Arguing that typicality does not exist “[b]ecause each of

the stores has a unique set of characteristics related to architectural features, prototype,

25 occupancy date, and the like, the claim and remedy sought by each plaintiff will vary according

to each store.”); Moeller, 220 F.R.D. at 611 (holding that typicality requirement was met).

26

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1 II. The Class As Certified Satisfies Rule 23(b)(2).10

2

A class seeking both damages and injunctive relief may be certified under Rule 23(b)(2)

3 as long as the damages claims do not predominate over the claims for injunctive relief.

4 Moeller, 220 F.R.D. at 612. Defendant incorrectly argues that the predominance test is not met 5 here because (i) class damages may be large,11 and (ii) adjudicating damages allegedly will be

6 difficult to manage.

7

As this Court has recognized, the fact that class damages may be significant does not

8 mean that they predominate over injunctive relief. See Wal-Mart, 222 F.R.D. at 171. Rather,

9 the predominance test turns on the primary goal of the litigation, not the potential size of the

10 damage award. Molski v. Gleich, 318 F.3d 937, 950 (9th Cir. 2003).

11

Injunctive relief is the primary goal where “(1) even in the absence of a possible

12 monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or

13 declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both

14 reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Robinson

15 v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2nd Cir. 2001). Both tests are

16 satisfied here.

17

First, reasonable plaintiffs would have brought this suit even in the absence of damages

18 -- indeed, class actions challenging architectural barriers seeking only injunctive relief are

19 10 Defendant also argues that the class does not satisfy Rule 23(b)(3), but this
20 argument is irrelevant since the class satisfies Rule 23(b)(2). In any event, a class of persons
with disabilities seeking damages under disability rights laws satisfies Rule 23(b)(3). See, e.g., 21 Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493, at *16-17 (N.D. Ill. Oct. 19, 2001);
Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 362-63 (D. Colo. 22 1999). When a class meets the requirements of both Rules 23(b)(2) and (b)(3), certification
under Rule 23(b)(2) is preferred. 2 Robert Newberg, Newberg on Class Actions, § 4:20 at 145 23 (4th ed. 2002).

24

11 The fact that aggregate damages in this case may be large simply reflects the

fact that there are many class members and many non-compliant restaurants. Each individual

25 class member simply seeks minimum statutory damages for each instance of discrimination

that has occurred since December 2001.

26

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1 routinely brought under the ADA. See generally Access Now, Inc. v. Ambulatory Surgery Ctr.

2 Group, Ltd., 197 F.R.D. 522, 525 (S.D. Fla. 2000); Ass’n for Disabled Ams. v. Amoco Oil Co.,

3 211 F.R.D. 457, 465 (S.D. Fla. 2002); Lightbourn v. County of El Paso, 118 F.3d 421, 424-25

4 (5th Cir. 1997).

5

Second, the injunctive relief sought in this case would be both reasonably necessary and

6 appropriate were the plaintiffs to succeed on the merits. Plaintiffs allege that Defendant’s

7 restaurants contain architectural barriers that deny class members full and equal access to those

8 restaurants. Should Plaintiffs prevail, an injunction requiring Defendant to bring its restaurants

9 into compliance with state and federal access regulations would be both necessary and

10 appropriate. See, e.g., 42 U.S.C. § 12188(a) (providing injunctive relief for violations of Title

11 III of the ADA); Cal. Civ. Code § 55 (providing injunctive relief for violations of § 54.)

12

Further, measuring the value of injunctive relief in this case is “‘almost impossible . . .

13 as the importance of eradicating discriminatory practices . . . through injunctive relief is

14 virtually immeasurable.’” Arnold, 158 F.R.D. at 451 (citations omitted). As demonstrated in

15 Plaintiffs’ Motion for Partial Summary Judgment, for more than three decades, Defendant has

16 been constructing and altering its restaurants in violation of state and federal access regulations. 17 An injunction will put an end to this.12 Equally, or perhaps more, important, an injunction will

18 ensure that in the future, Defendant’s construction and alteration of its restaurants will comply

19 with access regulations. This will benefit not only class members eligible for damages, but all

20 persons who use wheelchairs or scooters, even those who do not need such devices now but

21 will in the future. See Wal-Mart, 222 F.R.D. at 171 (Plaintiffs’ claims for injunctive relief

22 12 This is why the two cases cited by Defendant are irrelevant here -- in both cases,
23 the plaintiffs sought virtually no injunctive relief. See Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 472 (D. Md. 2002) (“In this case, Plaintiffs have asked almost exclusively for money
24 damages.”); In re Cordis Corp. Pacemaker Prod. Liab. Litig., No. MDL 850, C-3-86-543, 1992 WL 754061, at *9 (S.D. Ohio Dec. 23, 1992) (stating that the injunctive relief requested by
25 plaintiffs in part had already occurred and in part was simply a monetary claim recast as an injunctive claim).
26
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1 would change defendant’s policies in ways “that would benefit not only current class members,

2 but all future female employees as well”); Young v. Pierce, 544 F. Supp. 1010, 1028 (E.D.

3 Tex.1982) (“[W]hen the relief sought is injunctive relief, the benefits . . . would inure not only

4 to known class, but also to a future class of indefinite size.”). These future Taco Bell customers

5 who use wheelchairs will be able to patronize Defendant’s California restaurants without the

6 fear or humiliation inherent in discrimination.

7

These principles were illustrated in Molski, which, like the case at bar, involved a class

8 action on behalf of persons with disabilities based on alleged violations of Unruh and the

9 CDPA. Molski, 318 F.3d at 942. The action settled, and the proposed consent decree required

10 the appellants to undertake certain accessibility enhancements, and released class members’ 11 claims for statutory damages -- which the Ninth Circuit estimated could total $500 million13 --

12 as well as treble damages and actual damages, but did not release claims for personal injuries.

13 Id. at 945. The appellants argued that the district court improperly certified the class under

14 Rule 23(b)(2) because damages predominated over injunctive relief. Id. at 949. The Ninth

15 Circuit rejected this argument, holding that because the appellant “alleged that [the appellees]

16 acted in a manner generally applicable to the class by denying access to [their] facilities[,]

17 [p]articularly in light of the fact that claims of physical injury were preserved,” the

18 predominance test was satisfied. Id. at 950.

19

In this case, injunctive relief is even more predominant than in Molski. The damages in

20 Molski included statutory, treble and actual damages, whereas the plaintiffs here seek only

21 minimum statutory damages (and do not seek damages for personal injuries suffered by class

22 members).

23

24

25 13 318 F.3d at 954 n.23.
26
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1

Defendant also argues that the predominance test is not satisfied because of alleged

2 difficulties in managing damage adjudication. As set forth below, there are a number of

3 management options available to adjudicate damages in this case.

4 III. Managing the Trial.

5

This case, like many class actions, has been bifurcated into two stages: Stage I will

6 address liability and injunctive relief and, if Plaintiffs establish liability in Stage I, then Stage II

7 will address damages.

8

A. Stage I: Liability and Injunctive Relief.

9

During Stage I, “plaintiffs are required to prove that the defendant engaged in a pattern

10 and practice of discrimination against the class.” Wal-Mart, 222 F.R.D. at 173 (citing

11 Robinson, 267 F.3d at 158.).

12

Stage I in this case will be much simpler than in employment discrimination class

13 actions, in which plaintiffs often establish a pattern and practice of discrimination through

14 statistical evidence or evidence of system-wide policies and practices. See id. at 174. In this

15 case, the evidence will be much more comprehensive. The Special Master appointed in this

16 case will have surveyed every one of Defendant’s corporate restaurants in California, and the

17 legality of many of the surveyed elements will have been determined prior to trial through 18 summary judgment motions. Based on the results of the Pilot Program,14 Plaintiffs anticipate

19 that the results of the Special Master survey will show numerous and wide-spread violations of

20 state and federal access regulations, thereby demonstrating that Defendant has engaged in a

21 pattern and practice of discrimination against the class.

22

23

24

25 14 See Pls.’ Mot. for Partial Summ. J., Robertson Decl. Exs. 1-19.
26
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1

B. Stage II: Damages.

2

1. Evidentiary Burdens During Stage II.

3

If Plaintiffs prove during Stage I that Defendant has engaged in a pattern and practice of

4 discrimination, “[t]he force of that proof does not dissipate at the remedial stage of the trial.”

5 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361-62 (1977). During the Stage II

6 damages proceedings, once there has been a showing that class members “were either actually

7 harmed by the discriminatory policy or were at least . . . ‘potential victim[s] of the proved 8 discrimination,’”15 the class is entitled to “a presumption that the individual class members had

9 been discriminated against on account of” disability. Cooper v. Fed. Reserve Bank of

10 Richmond, 467 U.S. 867, 875 (1984). The burden then shifts to the defendant to rebut the

11 presumption. See Wal-Mart, 222 F.R.D. at 176 (citing Teamsters, 431 U.S. at 362; Robinson,

12 267 F.3d at 159-60).

13

The initial showing -- that class members were either actually harmed by the

14 discriminatory policy or were at least potential victims of the proved discrimination -- is

15 minimal, less than what would be required to establish a prima facie case. Wal-Mart, 222

16 F.R.D. at 175-76 (citing Robinson, 267 F.3d at 159). Further, once it has been determined that

17 a defendant has violated anti-discrimination laws, all uncertainties in damages should be

18 resolved against the defendant, and an “unrealistic burden” should not be placed on class

19 members to establish damages. See, e.g., Domingo v. New England Fish Co., 727 F.2d 1429,

20 1445 (9th Cir. 1984) (holding that, during damages stage of employment discrimination class

21 action, a “court should not put an unrealistic burden on claimants”); United States v. City of

22 Miami, 195 F.3d 1292, 1299 (11th Cir. 1999) (holding that, in determining remedial relief in

23 employment class action, uncertainties in the relief process should be resolved against the

24 discriminating employer.); Salinas v. Roadway Exp., Inc., 735 F.2d 1574, 1578 (5th Cir. 1984)

25 15 Wal-Mart, 222 F.R.D. at 175 (quoting Teamsters, 431 U.S. at 362).
26
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1 (same); Pitre v. W. Elec. Co., Inc., 843 F.2d 1262, 1276 (10th Cir. 1988) (“In group remedy

2 cases, ‘[i]f effective relief for the victims of discrimination necessarily entails the risk that a

3 few nonvictims might also benefit from the relief, then the employer, as a proven discriminator,

4 must bear that risk.’” (Citation omitted.)).

5

Defendant’s description of what the class must show to obtain damages is flawed. The

6 case law is clear: in order to recover damages under Unruh or the CDPA, a person with a

7 disability needs to show “that he or she was denied equal access on a particular occasion.”

8 Donald v. Cafe Royale, Inc., 266 Cal. Rptr. 804, 835 (Cal. App. 1990); Botosan v. Paul

9 McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000); Boemio v. Love’s Rest., 954 F. Supp. 204,

10 207 (S.D. Cal. 1997). Defendant adds to this -- without support -- the separate requirement that

11 class members must prove that they “attempted to access” the noncompliant feature. (Def.’s

12 Mot. at 15.) It is not immediately clear what level of attempt Defendant believes must be

13 shown. If Defendant is arguing that class members must demonstrate that they attempted to

14 patronize the restaurant but were denied equal access, that is accurate but redundant with the

15 denial of equal access. For example, a patron who, upon entering the restaurant, noted that the

16 queue line was too narrow for his wheelchair and -- wanting to avoid embarrassment, injury or

17 damage to the chair -- decided to use the “drive-thru,” or asked a friend to order for him, has

18 attempted to patronize the restaurant, but been denied equal access, and is entitled to recover

19 damages. Similarly, Defendant is incorrect that class members will not be able to recover

20 damages for visits to Taco Bell restaurants in which they used the “drive-thru” window, if they

21 did so because parking was inaccessible, or because the wanted to avoid known barriers in the

22 restaurant. See Botosan, 216 F.3d at 835 (holding that plaintiff was entitled to recover

23 minimum statutory damages where, had he parked in an inaccessible space, “he would have

24 risked having another car park next to him”).

25

26
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1

It appears from a later passage, however, that Defendant has something more in mind:

2 in its description of its various studies, it repeatedly suggests that if a class member can

3 “manage” to access a non-compliant architectural element, then she cannot recover damages.

4 (Def.’s Mot. at 20.) If Defendant is arguing that class members must physically attempt to

5 access unusable elements -- for example, by driving their wheelchairs into inaccessible queue

6 lines, suffering the embarrassment and hassle of getting stuck -- to recover damages, such a

7 requirement has been expressly rejected. In Boemio, the plaintiff, who used a wheelchair,

8 brought suit under Unruh and the CDPA challenging the defendant’s noncompliant restroom.

9 The defendant argued that the plaintiff was not entitled to minimum statutory damages because,

10 “with additional time, patience, and jockeying of the wheelchair, access could have been

11 achieved . . .” 954 F. Supp. at 208. The court held that this argument

12

was not reasonable nor consistent with the public policy interest in providing physically

handicapped persons with equal access to public facilities and warrants a finding for

13

Plaintiff in this action. We must be guided by reason and the broad construction given

to the Unruh Act. The standard cannot be “is access achievable in some manner.” We

14

must focus on the equality of access. If a finding that ultimate access could have been

achieved provided a defense, the spirit of the law would be defeated. It is clear, that

15

the legislative purpose behind these disability access laws would not support such a

finding.

16

Id. The court held that the plaintiff was entitled to statutory damages. Id. at 209.

17

2. Manageability Options for Stage II.

18

Much of Defendant’s argument that adjudicating damages in this case is unmanageable

19

is based on its unsubstantiated speculation that the damages phase may involve more than

20 150,000 class members16 requiring “132,000 historical determinations.” (Def.’s Mot. at 18.)

21

22 16 Def.’s Mot. at 23. Defendant’s only support for this claim is its
23 mischaracterization of Plaintiffs’ allegations in their Motion for Class Certification. (See Def.’s Mot. at 6.) In that Motion, Plaintiffs noted that there are approximately 150,000
24 non-institutionalized people 16 years of age or older in California who use wheelchairs. Plaintiffs never contended that all such persons are class members, and it is, of course, very
25 unlikely that this is the case. Indeed, the complaint in Lieber v. Macy’s West, Case No. C-96
(continued...) 26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

-23-

Case 3:02-cv-05849-PJH Document 122 Filed 11/09/2004 Page 30 of 34

1 Because this case has been bifurcated, the Court need not rely on speculation to determine how

2 damages will be adjudicated, but can instead wait to see how many class members, restaurants

3 and architectural elements will actually be involved in Stage II before making this

4 determination.

5

“By bifurcating issues like general liability or general causation and damages, a court

6 can await the outcome of a prior liability trial before deciding how to provide relief to the

7 individual class members.” Simo\n v. Philip Morris Inc., 200 F.R.D. 21, 30 (E.D.N.Y.2001).

8 Plaintiffs propose that if they establish during Stage I that Defendant has engaged in a pattern

9 and practice of discriminating against the class, that notice be provided to the class. Class

10 members who respond can then be sent a very simple claims form to be completed and

11 returned. As a result of this process, the parties and the Court will have a much better

12 understanding of the number of class members, restaurants and architectural elements that will

13 be at issue during Stage II, and thus will be in a much better position to determine how

14 damages will be adjudicated. See, e.g., Hartman v. Wick, 678 F. Supp. 312, 335 (D.D.C. 1988)

15 (deferring determination of how damages would be managed until after claims form process).

16

At that point, there will be a number of options available to the Court to adjudicate

17 damages, including:

18

Teamsters hearings. These are mini-hearings presided over by the court or a special

19 master. See Teamsters, 431 U.S. at 361 (1977). According to the Ninth Circuit, Teamsters

20 hearings are a routine method of addressing class damages. Kraszewski v. State Farm Gen. Ins.

21

22

16(...continued)

02955 MHP (BZ) (N.D. Cal.), like the case at bar, was brought on behalf of a class of persons

23 with mobility disabilities based on alleged architectural barriers at a department store chain

throughout California. That case involved approximately one-third of the number of facilities

24 that are at issue here. Lieber eventually settled, and approximately 1,350 class members with

compensable claims responded to the settlement notice. (See Plaintiffs’ Reply Brief in Support

25 of Their Motion for Class Certification at 12 & ex. 3.) Lieber demonstrates that it is premature

at best to speculate that this case will involve 150,000 -- or even 2,000 -- class members.

26

Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

-24-

Case 3:02-cv-05849-PJH Document 122 Filed 11/09/2004 Page 31 of 34

1 Co., 912 F.2d 1182, 1183 n.1 (9th Cir. 1990). Prior to Teamsters hearings, class members can

2 be required to submit claims forms that request information “in straightforward terms that do

3 not deter potential class members from submitting a form.” Hartman, 678 F. Supp. at 332.

4 This process reduces the number of hearings because the parties may be able to mediate and

5 settle some of the smaller or simpler claims. In the hearings themselves, a class member will

6 simply have to testify that her access was hindered by an architectural barrier on one or more

7 occasions during the limitations period. As set forth above, this will create a presumption that

8 she was discriminated against based on her disability, and Defendant will bear the burden of

9 rebutting this presumption.

10

Subclasses. Where necessary, a court can create damage subclasses consisting of class

11 members with common issues pursuant to Rule 23(c)(4). See, e.g., 3 Robert Newberg,

12 Newberg on Class Actions, § 9:48 at 422-24 (4th ed. 2002) (“Where class members share

13 common issues with respect to the general liability of a defendant but have divergent issues or

14 interests with respect to the impact and damages suffered . . . the establishment of subclasses

15 by the court under Rule 23(c)(4) will facilitate management of the litigation . . .”). In this case,

16 individual restaurants may present issues that merit the formation of subclasses. See Arnold,

17 158 F.R.D. at 449 (acknowledging the possibility of facility-specific subclasses in a multi-

18 facility architectural barrier class action).

19

Sample trials. In cases involving large numbers of class members, special masters can

20 preside over sample or bellwether hearings. The results of these hearings are used by the

21 special master to extrapolate aggregate class damages. This estimate is provided as a special

22 master recommendation to the jury, which may accept or reject it. See 3 Robert Newberg,

23 Newberg on Class Actions, § 10:3 at 480-81 (4th ed. 2002); Hilao v. Estate of Marcos, 103

24 F.3d 767, 784-87 (9th Cir. 1996); Bell v. Farmers Ins. Exchange, 9 Cal. Rptr.3d 544, 578-79

25 (Cal. App. 2004); Manual for Complex Litigation (Fourth) § 11.493 at 102-04 (2004)

26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

-25-

Case 3:02-cv-05849-PJH Document 122 Filed 11/09/2004 Page 32 of 34

1 (“Acceptable sampling techniques, in lieu of discovery and presentation of voluminous data

2 from the entire population, can save substantial time and expense, and in some cases provide

3 the only practicable means to collect and present relevant data.”).

4

Aggregate or formula damages. In some cases involving large numbers of class

5 members, courts may use formulas to calculate a defendant’s aggregate liability to the class.

6 See, e.g., Wal-Mart, 222 F.R.D. at 176. Defendant appears to acknowledge -- through the

7 detailed statistical data it provided concerning the percentages of persons with disabilities that

8 are hindered by various architectural barriers -- that a formula approach would be feasible in

9 this case. (See generally Decl. of Bruce Bradtmiller, Ph.D. (attached to Def.’s Mot.).)

10

C. Adjudicating Class Members’ Damage Claims In One Case Is Significantly

Better Than Numerous Separate Cases.

11

Defendant argues that trial of this matter is unmanageable based on its estimate of “tens

12

of thousands of class members,” and “132,000 historical determinations.” (Def.’s Mot. at 3,

13

18.) While neither of these dramatic phrases reflects reality, even if true, they would mitigate

14

for, rather than against, class treatment.

15

Defendant’s figure of 132,000 determinations apparently results from multiplying 220

16

restaurants by the 600 line items in the Special Master survey form. However, by agreement of

17

the parties and order of this Court, these forms will all have been completed by the Special

18

Master and evaluated by this Court by the end of Stage I and the entry of injunctive relief.

19

Defendant not only concedes that class certification is appropriate for these 132,000

20

determinations, it worked cooperatively with Plaintiffs in developing and proposing to the

21

Court the 600-line survey form through which they would be accomplished. (See generally

22

[Proposed] Order Appointing Special Master.)

23

24

25

26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

-26-

Case 3:02-cv-05849-PJH Document 122 Filed 11/09/2004 Page 33 of 34

1

Defendant appears to argue that the lack of manageability stems from the fact that each

2 of these line items would have to be re-examined for each class member for each visit.17 This

3 misconstrues the way Stage II will proceed in this case. First, only those architectural elements

4 encountered by class members who submit claims forms will be at issue during Stage II.

5 Second, if Plaintiffs demonstrate during Stage I a pattern and practice of discrimination, each

6 class member’s claim will be evaluated under a presumption of liability which Defendant will

7 be required to rebut. The evidence required to rebut would relate to the restaurant itself, and

8 would thus be common to all class members who suffered discrimination at that restaurant.

9

Defendant’s assertion that there will be “tens of thousands of class members” -- while

10 likely highly inflated18 -- argues persuasively for class treatment: the alternative is that each of

11 those tens of thousands of people with disabilities must retain counsel, investigate their

12 restaurants, and file suit -- in various courts around the state -- re-litigating a vast array of

13 common legal and factual questions: Does a class member who knows that an architectural

14 element is inaccessible have to engage in the futile gesture of attempting to access the element

15 in order to recover damages? Is a class member who manages, with difficulty, to access a non-

16 compliant element entitled to damages? What were the conditions at a given restaurant for a

17 given period of time? If damages are tried as a class, these questions can be answered once for

18 all class members. If class members are forced to bring individual suits in various courts

19 across California, then these common issues will have to be repeatedly proven, briefed and

20 decided, a very inefficient process.

21 17 Because it is highly unlikely that all 132,000 elements are in violation of the
22 standards, or that class members encountered each and every dimension that did violate the standards, the 132,000 figure is completely divorced from the reality of the Stage II
23 proceedings in this case. It is also absurd as a practical matter to suggest that every dimension is different each time a class member visits a restaurant. Most of the dimensions relate to items
24 that will have changed rarely if at all over the class period -- queue lines, fixed tables, toilets, sinks.
25 18 See supra note 16.
26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

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Case 3:02-cv-05849-PJH Document 122 Filed 11/09/2004 Page 34 of 34

1

This is so even for a restaurant that has changed repeatedly over time. As noted above,

2 the Court can create a subclass of those class members who have patronized that restaurant, and

3 the history of the changes at that restaurant can be determined in one proceeding by one fact

4 finder applying a consistent set of legal standards. Under Defendant’s approach, on the other

5 hand, each class member would have to bring a separate suit. Different fact finders would have

6 to address the same factual issue -- the history of changes at the restaurant. Not only is this

7 grossly inefficient, it also creates a significant risk of inconsistent factual determinations

8 concerning the history of changes.

9

CONCLUSION

10

For the reasons set forth above, Plaintiffs respectfully request that Defendant’s Motion

11 for Modification of Class Definition be denied.

12 Respectfully submitted,
13 FOX & ROBERTSON, P.C.
14

15

16
17
18
19
20 Executed: November 9, 2004
21

By: /s/ Timothy P. Fox Timothy P. Fox, Cal. Bar No. 157750 Amy F. Robertson, pro hac vice 910 - 16th Street Suite 610 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

22

23

24

25

26
Case No. C 02 5849 MJJ ADR
27 Plaintiffs’ Brief in Opposition to Defendant’s Motion for Modification of Class Definition

28

-28-

 
 Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 1 of 31

1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 RONDA J. McKAIG (State Bar No. 216267) DANIEL M. RYGORSKY (State Bar No. 229988)
3 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400
4 Los Angeles, California 90071-3144
Telephone: (213) 687-5000
5 Facsimile: (213)687-5600
6 Attorneys for Defendant Taco Bell Corp.

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 FRANCIE E. MOELLER, et al.

)

)

12

Plaintiffs,

)

)

13

v.

)

)

14 TACO BELL CORP.,

)

)

15

Defendant.

)

)

16

)

)

17

)

18

___________________________________________________________________________)

Case No. C 025849 MJJ ADR
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND CONDITIONAL CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: December 7, 2004 Time: 9:30 a.m.
Courtroom: 11

19

20

21

22

23 24 25 26
27

28

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 2 of 31

1

TABLE OF CONTENTS

2

TABLE OF AUTHORITIES

iii

3

MEMORANDUM OF POINTS AND AUTHORITIES

2

4

I. INTRODUCTION

2

5

II. PROCEDURAL POSTURE

4

6 A. Plaintiffs' Class Action Complaint

4

7 B. Plaintiffs' Class-Wide Allegations And Motion For Class Certification

4

8

C. Taco Bell's Motion To Modify The Class Definition

5

9

D. Bifurcation Of Action Into Equitable Relief And Damages Stages

5

10
E. Status Of Discovery

7

11

F. Plaintiffs' Motion To Adjudicate Facts

7

12

G. Taco Bell's Conditional Cross Motion For Partial Summary Judgment

8

13

III. STATEMENT OF FACTS

8

14

TV. PLAINTIFFS' PREMATURE MOTION FOR PARTIAL SUMMARY JUDGMENT

15

SHOULD BE DENIED

10

16

A. Plaintiffs' Motion Is Procedurally Premature

1 0

17

B. Plaintiffs' Motion Is Substantively Premature

10

18 C. The Court Should Deny Plaintiffs Motion As Premature Pursuant To F.R.C.P. 56(f)

19

Because Taco Bell Has Not Had The Benefit of Full Discovery

11

20 V. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT FAILS AS A

21
22
23
24
25 VI.
26
27
28

MATTER OF LAW

13

A. Legal Standard For Summary Judgment

13

B. Plaintiffs' Motion Cannot Result In A Finding Of Liability

13

C. Plaintiffs Fail To Establish The Requisite Element Of Intent For Determinations Of

Non-Compliance With Title 24

17

SUBSTANTIAL MATERIAL FACTS IN DISPUTE PRECLUDE SUMMARY

JUDGMENT

19

A. Material Facts In Dispute Regarding Store Dimensions

19

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR
1

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 3 of 31

1

B. Material Facts In Dispute Regarding Applicable Standards

20

2

C. Material Facts In Dispute Regarding Compliance

22

3

1. Taco Bell disputes whether certain elements, although not in technical

compliance, still provide equal or greater access

22

4
2. Taco Bell disputes whether certain elements are required to be in

5

technical compliance with standards because of applicable exceptions

under the standards

22

6

3. Taco Bell disputes whether certain alleged violations pertain to Plaintiffs'

7

disabilities

23

8

4. Taco Bell disputes whether certain allegedly non-compliant elements are under

Taco Bell's control

24

9 VII. TACO BELL'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

25

10

CONCLUSION

25

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR
11

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 4 of 31

1

TABLE OF AUTHORITIES

2

CASES

3 Access Now, Inc. v. S. Fla. Stadium Corp.,

161 F. Supp. 2d 1357 (S.D. Fla. 2001)

14

Access Now, Inc. v. Walt Disney World Co.,

211 F.R.D. 452 (M.D. Fla. 2001)

23

6 Anderson v. Liberty Lobby, Inc.,

7

477U.S.242(1986)

12

8 Antonios A. Alevizopoulos & Assoc. v. Comcast Int'l Holdings, Inc.,

100 F. Supp. 2d 178 (S.D.N.Y. 2000)

9

Armstrong v. Turner Industrial. Inc.,

10

141 F.3d 554 (5th Cir. 1998)

Brother v. CPL Invs., Inc.,

12

317F. Supp.2d 1358, 1370(S.D.Fla.2004)

12 13
21,23

13 Burton v. City of Belle Glade,

178 F.3d 1175 (llthCir. 1999)

13

14

Davis v. Cole-Hoover,

15

No. 03CV550, 2004 WL 1574649 (W.D.N.Y. June 14, 2004)

12

16 Disabled Rights Action Comm. v. Fremont St. Experience LLC,

17

44 Fed. Appx. 100 (9th Cir. 2002), cert. denied, 537 U.S. 1107 (2003)

18 Doukas v. Metropolitan Life Insurance Co.,

19

950 F. Supp. 422 (D.N.H. 1996)

15-16
13

20 Grier v. Brown, 230 F. Supp. 2d 1108 (N.D. Cal. 2002)
21

22

Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991)

23
Indep. Living Res. v. Oregon Arena Corp.,

24

982 F. Supp. 698 (D. Or. 1997)

18 16-17 14, 2 1-22

25 Lentini v. Cal. Ctr. for the Arts,

370 F.3d 837 (9th Cir. 2004)

18

26

Lujan v. Defenders of Wildlife,

27

504U.S. 555 (1992)

23

28

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
lii

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 5 of 31

1 Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475U.S.574(1986)

12

2

Mendenhall v. Barber-Greene Co.,

531F.Supp.947(N.D.Ill. 1981)

11

4 Metabolife International v. Wornick,

5

264F.3d 832 (9th Cir. 2001)

11

6 Miller v. Wolpoff& Abramson, L.L.P.,

321 F.3d 292 (2d Cir.),

7

cert. denied, 124 S. Ct. 153 (2003)

11

8 Nickert v. Puget Sound Tug & Barge Co.,

9

480F.2d1039(9thCir. 1973)

11

10 Parr v. L & L Drive-Inn Rest.,

96 F. Supp. 2d 1065 (D. Haw. 2000)

23

11
Pickern v. Best Western Timber Cove Lodge Marina Resort,

12

No. Civ. S-00-1637 WBS/DAD,

2002 U.S. Dist. LEXIS 1709 (E.D. Cal. Jan. 17, 2002)

17

13

Pickern v. Pier 1 Imports, Inc.,

14

No. CIV. 5 03-121 FCD JFM,

15

2004 WL 2252079 (E.D. Cal. Sept. 30, 2004)

24

16 Presta v. Peninsula Corridor Joint Powers Bd.,

16 F. Supp. 2d 1134 (N.D. Cal. 1998)

17

17

Puliafico v. County of San Bernardino,

18

42 F. Supp. 2d 1000, 1004 n.7 (C.D. Cal. 1999)

19

19 San Francisco Baykeeper, Inc. v. Browner,

20

147 F. Supp. 2d 991 (N.D. Cal. 2001)

13

21 SEC v. Thrasher,

152 F. Supp. 2d 291 (S.D.N.Y. 2001)

10

22

Tice v. Centre Area Trans. Authority,

23

247 F.3d 506 (3rd Cir. 2001)

13

24 Trebor Sportswear Co. v. The Limited Stores, Inc.,

25

865 F.2d 506 (2d Cir. 1989)

26 United States v. AMC Entm't, Inc.,
245 F. Supp. 2d 1094 (C.D. Cal. 2003)

27
United States v. Amoco Oil Co.,

28

580F.Supp. 1042(W.D.Mo. 1984)

11 14, 19-20
3

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
iv

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 6 of 31

1 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)
2

13-14

3 28 C.F.R. § 36.401(c)
28 C.F.R. § 36 app.2.2
6 28 C.F.R. § 36 app. 4.1.3(18) 28 C.F.R. § 36 app. 4.1.6(j)

STATUTES

22 21 20 22-23

8 Cal. Civ. Code § 51(f)

17

9 Cal. Civ. Code § 52(a)

16

10 Cal. Code Regs. Tit. 24 § 1 1OA(b)1 1A Exception 1 (1989)

20

11 Cal. Code Regs. Tit. 24 § 422 (1989)

20-21

12 Fed. R. Civ. P. 56(c)

12

13 Fed. R. Civ. P. 56(f)

12

14

15

OTHER AUTHORITY

16 Edward Steinfeld, Steven Schroeder & Marilyn Bishop, Accessible Buildings for People with Walking and Reaching Limitations

17

(U.S. Dep't of Housing and Urban Dev., Office of Policy Dev.) (1979)

14

18

19

20

21

22

23

24

25

26

27

28

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
v

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 7 of 31

1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 RONDA J. McKAIG (State Bar No. 216267) DANIEL M. RYGORSKY (State Bar No. 229988)
3 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400
4 Los Angeles, California 90071-3 144
Telephone: (213) 687-5000
5 Facsimile: (213) 687-5600
6 Attorneys for Defendant Taco Bell Corp.

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 FRANCIE E. MOELLER, et al.

)

)

12

Plaintiffs,

)

)

13

v.

)

)

14 TACO BELL CORP.,

)

)

15

Defendant.

)

)

16 ____________________________________)

Case No. C 02 5849 MJJ ADR
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND CONDITIONAL CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: December 7, 2004 Time: 9:30 a.m.
Courtroom: 11

17

ISSUES TO BE DECIDED

18

1. Whether Plaintiffs' motion is premature in light of the agreed schedule for resolution

19 of injunctive relief issues and discovery?

20

2. Whether Plaintiffs' motion for partial summary judgment, which purports to seek a

21 determination of liability, fails because it (i) merely seeks a determination that some of the

22 accessibility elements at 19 Taco Bell restaurants deviate from ADAAG or Title 24 and not a

23 determination of liability, (ii) is unsupported by admissible evidence, and (iii) fails to allege or 24 prove intent to violate Title 24 for those elements that comply with ADAAG but allegedly do not

25 comply with Title 24?

26

3. Whether material issues of fact in dispute preclude granting summary judgment?

27

4. If the Court determines partial summary judgment is appropriate at this stage of the

28 proceedings, whether Defendant is entitled to partial summary judgment that the elements listed in

DEFENDANT'S OPPOSITION TO PLAiNTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR
1

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 8 of 31

1 Exhibits A and B to the Declaration of Ronda J. McKaig comply with ADAAG and both ADAAG

2 and Title 24, respectively?

3

MEMORANDUM OF POINTS AND AUTHORITIES

4 I. INTRODUCTION

5

There are approximately 220 company-owned Taco Bell restaurants in California (the

6 "Restaurants"). Even though Plaintiffs based this class action on the alleged existence of company-

7 wide discriminatory policies, Plaintiffs have insisted that a survey be conducted of each and every

8 public accessibility element in each and every company-owned restaurant. To make this process

9 practicable, with the Court's approval, the parties agreed that a Special Master would survey all the

10 Restaurants using an agreed form. By July 2005, the Court-appointed Special Master will have
11 surveyed over 132,000 individual elements. To date, the Special Master has surveyed

12 approximately 7,000 individual elements as part of a pilot program to survey 20 of Taco Bell's

13 corporate-owned restaurants in California (the "Pilot Stores").

14

The parties agreed that following completion of the survey in June 2005, they would meet

15 and confer regarding the results in an effort to reach agreement on which elements at which

16 restaurants need to be modified. The goal of this survey and meet and confer program was to bring

17 to the Court's attention for decision only those individual accessibility elements that the parties

18 remain in disagreement about after the meet and confer process is concluded. Based on the parties'

19 cooperation to date, Taco Bell expects the number of elements the Court ultimately will be called

20 on to decide will be very few, if any. To the extent disputes remain after the meet and confer, the

21 parties agreed to "meet and confer on a procedure to resolve any disputes concerning the

22 restaurants, which may include proceedings before the Special Master, summary judgment 23 proceedings before the Court, or a bench trial." Joint Supplemental Case Management Statement

24 and [Proposed] Order ("Joint Statement") at 4:3-5.

25

Notwithstanding the Court-approved procedure for adjudication of injunctive relief

26 regarding the elements at each individual Restaurant, Plaintiffs have brought a Motion for Partial

27 Summary Judgment ("Plaintiffs' Motion") seeking a piecemeal determination that a subset of

28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR
2

Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 9 of 31

1 elements at only a fraction of the approximately 220 Restaurants do not comply with federal and

2 state accessibility statutes. Plaintiffs' Motion should be denied for four independent reasons:

3

• Plaintiffs' Motion, brought over 8 months before the start of the agreed meet and

4

confer process, is premature. Instead, Plaintiffs should be ordered to abide bythe

5

agreed schedule in the Joint Statement for the adjudication of the individual

6

accessibility elements.1

7

• Expert and fact discovery regarding each of the Pilot Stores' construction, remodel,

8

renovation, and maintenance records is necessary to determine which accessibility

9

standards apply to each element at each of the Restaurants. However, such

10

discovery — which has not yet taken place — as to each of the more than 7,000

11

elements at the Pilot Stores and over 120,000 elements at the remaining Restaurants

12

is unnecessary and a waste of the parties' resources if, after the scheduled meet and

13

confer process, there is no dispute about compliance or a proposed solution.

14

• Although styled as a motion seeking a determination of "liability," Plaintiffs' Motion

15

does no such thing. Plaintiffs do not and cannot assert that a determination that

16

certain elements at the Pilot Stores deviate from the ADA Accessibility Guidelines

17

for Buildings and Facilities ("ADAAG") or Title 24 of the California Code of

18

Regulations ("Title 24") (i) establishes any deviations at other Restaurants, or (ii)

19

establishes class-wide company policies in violation of the ADA or Title 24.

20

Indeed, all that Plaintiffs' Motion has done is draw a cross-motion based on the

21

hundreds of findings of compliance at the very same Pilot Stores. In the end,

22

exactly contrary to the agreed proceedings for adjudication of injunctive relief,

23

Plaintiffs' Motion will require the Court to make individual findings as to most of

24

the more than 132,000 individual elements despite the fact that agreement may have

25

been reached as part of the meet and confer process.

26 1

See, e.g., United States v. Amoco Oil Co., 580 F. Supp. 1042, 1052 (W.D. Mo. 1984)

27

(denying summary judgment and noting that "[a]lthough it would be permissible to grant the government a partial summary judgment on the issue of liability. . . I doubt that any benefit would

28 accrue from fragmenting the claim in that fashion.").

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
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1

• Finally, Plaintiffs' summary judgment motion should be denied because a

2

substantial number of material issues of triable fact are in dispute.

3

Plaintiffs' Motion will do nothing to resolve any of Plaintiffs' claims in this action. Instead,

4 Plaintiffs' Motion will require the Court and the parties to uimecessarily waste their resources.

5 However, should this Court determine Plaintiffs' summary judgment motion is not premature, Taco

6 Bell moves, in what is likely just the first of a series of summary adjudication motions as the

7 remaining Restaurants are surveyed, for an order granting partial summary judgment in its favor on

8 those elements at the Pilot Stores that complied with ADAAG and/or Title 24 as of the date of the

9 Special Master's site visits.

10 II. PROCEDURAL POSTURE

ii

A. Plaintiffs' Class Action Complaint

12

On December 17, 2002, four Taco Bell customers filed a class action complaint against

13 Taco Bell alleging violations of the Americans with Disabilities Act, 42 U.S.C.A. § 12101 et g.

14 (the "ADA"), and the Unruh Civil Rights Act, Cal. Civ. Code § 51 et (the "Unruh Act"), at a

15 handful of the Restaurants. On August 4, 2003, Plaintiffs filed a First Amended Class Action

16 Complaint (the "Complaint"), which added an additional claim under the California Disabled

17 Persons Act ("CDPA"), but was otherwise substantively identical to the original complaint.

18

B. Plaintiffs' Class-Wide Allegations And Motion For Class Certification

19

Plaintiffs filed their Motion for Class Certification on September 16, 2003, seeking

20 certification of a proposed mandatory injunctive relief class under Rule 23(b)(2). Plaintiffs alleged

21 that various architectural barriers at the Restaurants resulted from Taco Bell's purported

22 "centralized policies governing the design, construction and maintenance of its restaurants." Pis.'

23 Mot. for Class Cert. ("Cert. Mot.") at 11-13, 19-21, 23. Specifically, Plaintiffs claimed that Taco

24 Bell's system-wide policies operate in three ways to result in accessibility problems at the

25 Restaurants.

26

First, Plaintiffs argued that certain architectural barriers "result directly from Taco Bell's

27 policies." Id. at 11. For example, Plaintiffs alleged that inaccessible queue rails "result from

28 centralized policies and prototypes." at 12. Second, Plaintiffs alleged that certain accessibility
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1 problems result from Taco Bell's "failure to include various accessibility requirements in its

2 company-wide policies." I Plaintiffs alleged that the American with Disabilities Act Facilities 3 Compliance Guide used by Taco Bell omits certain requirements, such as the maximum door

4 opening force allowed for exterior doors and the requirement of "Van Accessible" signs and towing

5 signs in parking lots. Id. at 13. Third, Plaintiffs alleged that some accessibility problems result

6 from a "policy" of not enforcing its own accessibility policies. Id.

7

The Court found that a class was proper under Rule 23(b)(2) based on Plaintiffs' allegations

8 that architectural barriers existing at the Restaurants "result from [Taco Bell's] discriminatory

9 policies concerning the design and accessibility of its restaurants." Order Granting Pls.' Mot. for

10 Class Cert. at 13. The Court certified a Rule 23(b)(2) class of "[a]ll individuals with disabilities

11 who use wheelchairs or electric scooters for mobility who, at any time on or after December 17,

12 2001, were denied, or are currently being denied, on the basis of disability, full and equal

13 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of [the

14 Restaurants]." Id. at 15.

15

C. Taco Bell's Motion To Modify The Class Definition

16

On October 19, 2004, Taco Bell moved to modify the class definition to exclude damages

17 claims. Taco Bell's motion establishes that claims for damages are not proper for class certification

18 for three reasons. First, the evidence shows that with regard to damages determinations, there are

19 no common issues of fact. Second, the class representatives' damages claims are not typical of the

20 class and therefore cannot be used to adjudicate the damages claims of other class members. Third,

21 the damages issues overwhelm the injunctive relief so that it is inappropriate to include the

22 damages claims in the Rule 23(b)(2) class. Mot. to Modify Class Defn (Mot. to Modify") at

23 25-28. Taco Bell's motion will be heard on December 7, 2004.

24

D. Bifurcation Of Action Into Equitable Relief And Damages Stages

25

The parties agreed and the Court ordered that the proceedings and any trial of this matter

26 should be bifurcated so that stage one will resolve Plaintiffs' claims for equitable relief and stage

27 two will resolve Plaintiffs' claims for damages. The Joint Statement filed by the parties sets forth a

28 schedule for the two stages of litigation. See Joint Statement ¶J 3-7, 9-10.
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1

During the first stage of the litigation, a Special Master will survey each Restaurant for

2 accessibility. Pursuant to the Order Appointing Special Master ("Order"), the Special Master will

3 complete surveys of approximately 200 Restaurants by June 30, 2005. See Order ¶fJ 2, 7(a). The

4 Special Master must inspect up to 638 elements for each restaurant, and the survey form includes

5 the measurement of dimensions relating to 30 specific areas of each restaurant. The survey is

6 limited to the condition of the elements at the time of the survey and does not attempt to perform a

7 historical survey for each element. In addition to determining the dimensions of each of the

8 elements, the Special Master will specifically identify whether each element complies with current

9 ADAAG and Title 24 guidelines on the date of the site visit, which is among the determinations that

10 Plaintiffs ask the Court to make now, without the benefit of discovery.2 Id. ¶ 2(b). The parties

11 have not stipulated or agreed as to which standards under ADAAG or Title 24 apply to each

12 element at each Restaurant. See Joint Statement ¶4; Order ¶ 2(a).

13

Following completion of the surveys, the parties have agreed to "meet and confer. . . to

14 reach agreement on (i) whether there are violations of [ADAAG] or Title 24 at each surveyed

15 outlet; (ii) if there are violations of [ADAAG] or Title 24, a proposed resolution to the violations;

16 (iii) where applicable, whether the proposed solution is structurally or technically impracticable or

17 unfeasible; (iv) where applicable, whether the proposed resolution is readily achievable; and (v) a

18 proposed implementation schedule for any agreed resolutions." Id. ¶ 7(e). Following the meet and

19 confer process regarding individual elements, the parties agreed that they "shall meet and confer on

20 a procedure to resolve any disputes concerning the [Restaurants], which may include proceedings

21 before the Special Master, summary judgment proceedings before the Court, or a bench trial."

22 Joint Statement at 4:3-5. The purpose of the meet and confer process is to allow the parties to

23 narrow the scope of the litigation so that discovery requests, expert testimony, motions, and Court

24 involvement will be limited to disputed issues. This process minimizes the need for the Court's

25
2

The Special Master will also (a) provide a proposed solution to bring non-compliant

26 elements into compliance with ADAAG and Title 24, (b) note whether a proposed solution is

structurally impracticable or technically infeasible, and in such cases, propose an alternative

27 solution to provide access to the maximum extent feasible and/or to the extent it is not structurally

impracticable, and (c) provide non-binding cost estimates of proposed solutions. Order ¶ 2(b).

28

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1 involvement and reduces costs for both parties by eliminating unnecessary litigation regarding

2 undisputed issues.

3

E. Status Of Discovery

4

In connection with the survey of the Pilot Stores, at Plaintiffs' request, Taco Bell voluntarily

5 produced to Plaintiffs construction files for the Pilot Stores. The documents produced did not

6 include any documents relating to routine maintenance or repair of the Pilot Stores. Plaintiffs have

7 propounded discovery regarding the frequent changes that occur at all 220 Restaurants, including

8 the building, remodeling, and maintenance history for each Restaurant.

9

Although initial responses to this discovery are not due until December 17, 2004, at this

10 stage of the proceedings, discovery regarding the history of each of the more than 7,000 elements

11 of the Pilot Stores surveyed by the Special Master and the approximately 120,000 elements at the

12 remaining 200 Restaurants that will be surveyed is premature.3 Such discovery is only necessary

13 if, after the meet and confer process scheduled to begin in July 2005, the parties dispute which

14 standards and/or defenses may apply to a specific element.

15

F. Plaintiffs' Motion To Adjudicate Facts

16

Despite the schedule in this action for surveying and resolving issues relating to the

17 Restaurants, Plaintiffs have moved for partial summary judgment seeking a determination that 497

18 specified elements at 19 of the Pilot Stores violate the ADA, the Unruh Act, and/or the CDPA.

19 Pis.' Mot. at 2. Using informal discovery and some of the stipulations of fact regarding dimensions
20 of the accessibility elements at the Pilot Stores, Plaintiffs contend that "liability" should be

21 adjudged as to the allegedly non-compliant elements.

22

Plaintiffs do not and cannot assert that a non-compliant element at one restaurant says

23 anything about compliance of the same element at any other restaurant. Accordingly, nothing in

24 Plaintiffs' Motion addresses or attempts to adjudicate the class-wide issues asserted in Plaintiffs'

25 Complaint.

26

In addition to the elements already surveyed at the Pilot Stores, Plaintiffs have requested

that the Special Master complete surveys of additional elements at the Pilot stores. Order at 4-

27 5. Between the elements already surveyed at the Pilot Stores, the elements that remain to be

surveyed at the Pilot Stores, and the elements that remain to be surveyed at the other Restaurants,

28 there will be 132,000 findings of fact with respect to the surveyed elements.

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1

G. Taco Bell's Conditional Cross Motion For Partial Summary Judgment

2

Should the Court decide that Plaintiffs' motion is not premature in light of the schedule in

3 this action and ongoing discovery, Taco Bell brings this cross-motion for partial summary

4 judgment seeking an order finding that the 2567 elements listed in Exhibit A comply with ADAAG

5 and the 2503 elements in Exhibit B comply with both ADAAG and Title 24. (Both exhibits are

6 attached to the Declaration of Ronda J. McKaig ("McKaig Decl.").)
7 III. STATEMENT OF FACTS
8 The Pilot Program for 20 Restaurants

9

Pursuant to an agreement between the parties, the Special Master surveyed and recorded the

io dimensions of more than 7,000 elements at 20 Pilot Stores during June and July 2004. As a part of

the memorandum of understanding entered into between counsel for the Plaintiff class and counsel

12 for Taco Bell, the parties agreed that the dimensions, and only the dimensions, recorded by the 13 neutral ADA expert would become stipulations of fact that may be used for any purpose as to the

14 individual restaurants surveyed, but not as exemplars or other statistical use for any other Taco Bell

15 restaurants.4 Accordingly, a determination that one element did or did not comply with ADAAG

16 or Title 24 standards on the date of the survey at a particular restaurant says nothing about Taco

17 Bell's overall policies and practices. Thus, as of this date, the only undisputed facts are the more

18 than 7,000 dimensions determined by the Special Master for the Pilot Stores, as set forth in the

19 Special Master's reports. 20 The Special Master Survey of 200 Restaurants

21

From October 2004 through June 2005, the Special Master will survey approximately

22 120,000 elements at the remaining 200 Restaurants and record their dimensions on the date of

23 survey.5 The Special Master also will supplement the surveys at the Pilot Stores to include

24 additional elements agreed between the parties. The Special Master survey will include an initial
25 determination of whether a surveyed element complies with ADAAG and/or Title 24 on the dateof

26 The neutral ADA expert who performed the surveys of the Pilot Stores was later appointed
27 as Special Master by the Court. Order ¶ 1. During this time, the Special Master will also complete surveys on an additional
28 approximately 5,000 elements at the Pilot Stores. See Order at 4-5.
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1 survey and, if there are violations of the statutes at surveyed restaurants, a proposed resolution to

2 the violation. After an opportunity to meet and confer, the dimensions determined by the Special

3 Master will become stipulations of fact in this case. As of this date, there are no stipulations of fact

4 from the surveys of non-Pilot Stores.

5 Plaintiffs' Allegations Concerning 497 Elements

6

In their Motion, Plaintiffs allege that 497 elements at 19 of the 20 Pilot Stores do not

7 comply with the standards set forth in ADAAG and/or Title 24. Specifically, Plaintiffs have

8 alleged that (a) 93 elements violate ADAAG only, (b) 246 elements violate a particular version or

9 versions of Title 24, and (c) 158 elements violate both ADAAG and a particular version or versions

10 of Title 24.6

11

Taco Bell disputes that certain of the violations alleged by Plaintiffs do not comply with the

12 applicable statute. Although Plaintiffs' Motion purportedly is based on "undisputed" "existing

13 dimensions" and "undisputed information concerning dates of construction and alteration," certain

14 of the dimensions listed by Plaintiffs in the exhibits to the Robertson Declaration differ from the

15 dimensions actually recorded by the Special Master.7 In addition, Taco Bell disputes the standards

16 applied by Plaintiffs to certain elements and certain of Plaintiffs' conclusions of non-compliance

17 based on those standards.

18 The Compliant Elements at the Pilot Program Restaurants

19

In contrast to disputes regarding some of the 497 elements in 19 of the 20 Pilot Stores that

20 are the subject of Plaintiffs' Motion, there can be no dispute that the 2567 elements listed in Exhibit

21 A are compliant with ADAAG, and the 2503 elements listed in Exhibit B are compliant with both

22 ADAAG and Title 24. The compliant elements relate to all areas of the Pilot Stores, including but

23 not limited to accessible routes, ramps, parking, doors, dining areas, queue rails, and restrooms.

24

25

26 6

One of the elements Plaintiffs seek summary judgment upon does not even identify an

27 applicable standard. See Robertson Decl. Ex. 9, p. 2. Exhibits to the RobertsonDecl. are

hereinafter referred to as "Robertson Ex. ."

28

These discrepancies are detailed a at Section VI.A.

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1 IV.
2

PLAINTIFFS' PREMATURE MOTION FOR PARTIAL SUMMARY JUDGMENT SHOULD BE DENIED
A. Plaintiffs' Motion Is Procedurally Premature

.. ... ... As part of the Joint Statement, the parties agreed and the Court approved a specific plan to
4 survey and adjudicate individual accessibility elements at each Restaurant, including discovery related to those proceedings. See Joint Statement ¶f 4-6, 9. Plaintiffs' Motion is a blatant attempt
6 to pre-empt the agreed procedures set forth in the Joint Statement. By their Motion, Plaintiffs have

(i) refused to wait until the scheduled meet and confer process to determine whether there are in 8 fact disputes that must be resolved by the Court, (ii) refused to wait for necessary discovery to be

completed to determine whether elements that are not in compliance with ADAAG or Title 24 10 must be modified, and (iii) refused to wait until the parties have met and conferred about the

appropriate methods to resolve any disputes that remain after the scheduled meet and confer

12
process.

13

Plaintiffs' attempt to gain some sort of tactical advantage through this premature motion

14 should be rejected so that the parties may proceed to adjudicate the individual accessibility 15 elements as previously agreed by the parties and approved by the Court. The alternative would
16 defeat the whole purpose of the procedure and require the Court to make thousands of unnecessary

17 determinations based on an incomplete record.

18

B. Plaintiffs' Motion Is Substantively Premature

19

In addition to being procedurally premature, Plaintiffs' Motion is substantively premature

20 because it does not and cannot dispose of any claim in this case. It is well-established that

21 summary judgment motions cannot be used as a "vehicle for fragmented adjudication of non-

22 determinative issues." SEC v. Thrasher, 152 F. Supp. 2d 291, 295 (S.D.N.Y. 2001) (denying as

23 procedurally improper a motion that sought resolution of a non-dispositive issue, even though the

24 issue in the motion would have expedited resolution of the action). For this reason alone, Plaintiffs'

25 Motion should be denied.

26

First, as a result of the parties' agreement regarding the Pilot Stores, compliance or non-

27 compliance cannot be used to support claims regarding Taco Bell's company-wide policies or

28

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1 practices or even whether identical elements at Restaurants outside the Pilot Program comply or do

2 not comply with the applicable laws. Indeed, Plaintiffs specifically agreed they would not use non-

3 compliance of certain elements in the Pilot Stores as exemplars of violations for any other Taco

4 Bell Restaurants.

5

Second, an adjudication that a particular element does not comply with the ADAor Title 24

6 does not resolve any of the causes of action in the Complaint. Indeed, as shown below, the mere

7 fact of a deviation from the standard does not mean that liability is established under either the

8 ADA or Title 24 (1) if an exception excuses full compliance, or (2) unless Plaintiffs show that

9 injunctive relief is appropriate under the circumstances.

10

Regardless of whether Plaintiffs lose or win their Motion, a judgment as to the compliance

11 of a small percentage of the elements in 19 Restaurants will not determine the fate of the claims

12 asserted by Plaintiffs. See, e.g., Nickert v. Puget Sound Tug & Barge Co., 480 F.2d 1039, 1041

13 (9th Cir. 1973) (rejecting an opinion characterized as a "partial summary judgment" that was

14 "nothing more nor less than [a] hypothetical, advisory opinion."); Mendenhall v. Barber-Greene

15 , 531 F. Supp. 947, 948 (N.D. Ill. 1981) (summary judgment motion seeking adjudication of 16 non-dispositive factual issues would require the court to render an advisory opinion). Indeed,

17 Plaintiffs' request will not even disperse with the need for the Court to evaluate elements at these

18 19 Restaurants, since Plaintiffs have only moved on certain elements for which they anticipated no

19 affirmative defenses. Moreover, Plaintiffs have requested additional elements be surveyed at these
20 same stores. $ Order pp. 4-5. Consequently, a decision granting Plaintiffs' motion cannot

21 streamline the litigation in any way.

22

C. The Court Should Deny Plaintiffs Motion As Premature Pursuant To

F.R.C.P. 56(0 Because Taco Bell Has Not Had The Benefit of Full Discovery

23 "Although Rule 56(f) facially gives judges the discretion to disallow discovery when the

24 non-moving party cannot yet submit evidence supporting its opposition, the Supreme Court has

25 restated the rule as requiring, rather than merely permitting, discovery 'where the non-moving party

26 has not had the opportunity to discover information that is essential to its opposition." Metabolife

27

28
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1 Int'l v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477

2 U.S. 242, 250 n.5 (1986)).8

3

As discussed in the Rule 56(f) Declaration of T. Jean Mooney (filed concurrently herewith),

4 the parties agreed to a discovery schedule. Discovery in this case has the potential to be extremely

5 burdensome due to the number of restaurants (approximately 220) and the number of elements

6 Plaintiffs insisted be surveyed for each restaurant (approximately 600), resulting in over 130,000

7 elements requiring discovery to establish dimensions, applicability of standards, compliance,

8 accessibility, structural impracticability, and technical infeasibility. This discovery would raise

9 material issues as to the facts set forth in Plaintiffs' Motion.

10

The enormous burden of investigating and producing discovery concerning each of the

11 more than 130,000 accessibility elements at the 220 Restaurants will, in all likelihood, be

12 unnecessary to the extent the parties reach agreement during the meet and confer process.

13 Plaintiffs' premature motion for partial summary judgment thus places Taco Bell in the untenable

14 position of either (i) conducting vast volumes of likely unnecessary discovery ten months before

15 the discovery cut off and before the mandatory meet and confer process has even begun or (ii)

16 permitting Plaintiffs' Motion to be adjudicated on an incomplete record. Taco Bell should not be

17 required to make this Hobson's choice, and Plaintiffs' Motion should be denied. See Fed. R. Civ. P.

18 56(f).9

19

20 8

See also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir.), cert. denied,

21

124 5. Ct. 153 (2003) ("Fed.R.Civ.P. 56(f) provides, as interpreted by court opinions, that when a party facing an adversary's motion for summary judgment reasonably advises the court that it needs

22

discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion.") (citing

23

Comm. Cleaning Servs., L.L.C. v. Cohn Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir. 2001)); cf Trebor Sportswear Co. v. The Limited Stores. Inc., 865 F.2d 506, 511 (2d Cir. 1989) ("Under Rule

24

56(f), summary judgment may be inappropriate where the party opposing it shows . . . that he cannot at the time present facts essential to justify his opposition. The nonmoving party should not

25

be 'railroaded' into his offer of proof in opposition to summary judgment. The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the

26 motion for summary judgment.") (citations omitted). See also Antonios A. Alevizopoulos & Assoc. v. Comcast Int'l Holdings, Inc., 100 F. Supp.

27 2d 178, 185 (S.D.N.Y. 2000) (denying summary judgment under Rule 56(f) based on incomplete discovery to date); Davis v. Cole-Hoover, No. 03CV550, 2004 WL 1574649, at IK1 1-12

28 (W.D.N.Y. June 14, 2004) (same).

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1 V.
2

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT FAILS AS A MATTER OF LAW
A. Legal Standard For Summary Judgment

Summary judgment is proper only where "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 6 of law." Fed. R. Civ. P. 56(c); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The moving party bears the burden of demonstrating the absence of a 8 genuine issue of material fact. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). If a

fact may affect the outcome of a claim, it is material. Id. at 248. Moreover, the Court construes all

10 evidence and reasonable inferences drawn therefrom in favor of the non-moving party, in this case

11 Taco Bell. Anderson, 477 U.S. at 255.

12

Although ,,[t]he ex.istence of und.isputed facts is a necessary precondition to entry of

13 summary judgment, {it] will not suffice in and of itself. The movant must also show he is 'entitled

14 to judgment as a matter of law'. . . . because 'undisputed facts do not always point unerringly to a 15 single, inevitable conclusion." Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 424 16 (D.N.H. 1996) (citing Desmond v. Varrasso (In re Varrasso), 37 F.3d 760 (1st Cir. 1994)).

17

B. Plaintiffs' Motion Cannot Result In A Finding Of Liability

18

Plaintiffs propose that if they can show accessibility elements deviate from ADAAG andlor

19 Title 24, they have established Taco Bell's "liability." Plaintiffs specifically "reserv[e] for later

20 proceedings the question of appropriate remedies — declaratory, injunctive and monetary — for such

21 liability." Pls.' Mot. at 2. However, Plaintiffs' use of the term "liability" is fundamentally flawed

22 because liability cannot be determined without a concurrent determination as to the appropriate

23 remedy. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1199 (11th Cir. 1999) (discussing

24 voting rights and noting that "[t]he inquiries into remedy and liability ... cannot be separated: A 25 district court must determine . . . whether it can fashion a permissible remedy in the particular

26 context of the challenged system. . . . The absence of an available remedy is not only relevant at

27

28
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1 the remedial stage of the litigation but also precludes, under the totality of the circumstances

2 inquiry, a finding of liability.").'0

3

Where, as here, the relief sought by Plaintiffs includes injunctive relief, remedy and liability

4 cannot be separated. Thus, the Court cannot make a determination of liability without considering

5 whether the relief sought is appropriate. See San Francisco Baykeeper, Inc. v. Browner, 147 F.

6 Supp. 2d 991, 996 (N.D. Cal. 2001) ("Plaintiffs' present motion for summary judgment deals only 7 with the issues of liability, and not with remedies. But because the claims of the complaint

8 seek equitable relief, the issues of liability and remedy are not so neatly divided."). It is well9 established that injunctive relief "is not a remedy which issues as of course," or "to restrain an act

10 the injurious consequences of which are merely trifling." Weinberger v. Romero-Barcelo, 456 U.s.

11 305, 311-3 12 (1982) (citations omitted).

12

Plaintiffs Would Not Be Entitled To Injunctive Relief For De Minimis Violations.

13 Plaintiffs' Motion asks the Court to ignore the policy behind the ADA and Title 24 — providing

14 substantial access to a majority of the affected population1' — and to issue a ruling even when an

15 alleged violation is de minimis. However, de minimis violations cannot support an order for

16 injunctive relief as a matter of law. See. e.g., Indep. Living Res. v. Oregon Arena Corp., 982 F.

17 Supp. 698, 783 (D. Or. 1997) (denying injunctive relief requiring a defendant to remount an alarm

18 that was two inches too high); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357,

19 1369-70 (S.D. Fla. 2001) ("injunctive relief would not be appropriate for de minimis violations that 20 'do not materially impair the use of an area for its intended purpose, . . . [or] pose any apparent

21 danger to persons with disabilities.") (citations omitted).

22 10 Cf Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998) ("[D]amages liability under [Title II of the ADA] must be based on something more than a mere violation of that
23 provision," thereby precluding summary judgment on the issue of liability); Tice v. Centre Area 24 Trans. Auth., 247 F.3d 506, 520 (3rd Cir. 2001) ("there is no indication in either the text of the
ADA or in its history that a technical violation. . . was intended to give rise to damages liability"
25 under Title I of the ADA).

26

"Our recommendations encompass the people with a range of abilities who clearly would be benefited by standardized design features. This means that such recommendations would be

27

most convenient to the broadest range of individuals." Edward Steinfeld, Steven Schroeder & Marilyn Bishop, Accessible Buildings for People with Walking and Reaching Limitations (U.S.

28 Dep't of Housing and Urban Dcv., Office of Policy Dcv.) (1979) at 5.

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1

For example, in Restaurant No. 2423, Plaintiffs allege that the height of the side and rear

2 grab bars in the women's restroom are mounted at 37 inches, whereas the maximum allowed is 33

3 inches or 36 inches for the rear grab bar if a tank impedes placement at 33 inches. $Robertson

4 Ex. 4, p. 3. While a side or rear grab bar height of 3 3-36 inches allows 95% of wheelchair users

5 access, a height of 37 inches actually allows 96.7%, a greater percentage, of wheelchair users

6 access. Bradtmiller Deci., Ex. C at 412 In Restaurant No. 2801, Plaintiffs allege the height of
7 the lavatory rim in the men's restroom is 35 Yz inches, whereas the maximum allowed height is 34 8 inches. See Robertson Ex. 7, p. 3. A lavatory rim height of 34 inches permits more than 99% of

9 wheelchair users access, and a lavatory rim height of 35 V2 inches also permits more than 99% of

10 all wheelchair users access. See Bradtmiller Deci., Ex. C at 2.13 These types of de minimis

11 violations would not support an order for injunctive relief. Indeed, injunctive relief would reduce

12 accessibility in the case of the grab bars at Restaurant No. 2423.

13

Determinations Of Non-Compliance Are Meaningless If Relief Has Become Moot.

14 Because elements at the Restaurants are subject to frequent change from routine maintenance,

15 customer use, or remodels, the stipulated dimensions are valid only on the date of the survey. A

16 determination that an element was not compliant on the date of the survey does not establish that

17 injunctive relief is appropriate or necessary. For example, one of the Pilot Stores, Restaurant No.

18 2778, is currently undergoing a remodel that includes removing walls from restrooms, remounting

19 hardware and fixtures in compliance with applicable regulations, remodeling the dining room to

20 remove queue rails and other modifications. See Declaration of R. David Allen ("Allen Decl.") at

21 ¶ 4. Thus, any findings regarding that restaurant likely will be mooted by the planned remodel.'4

22

With respect to damages, as shown in Taco Bell's motion to modify the class definition, any

23 finding of liability would require significant factual discovery and evidence establishing that

24 individual class members were actually hindered in their use and enjoyment of a Restaurant by the

25
12

The Bradtmiller Decl. was filed concurrently in support of Taco Bell's Motion to Modify.

26 13 See also United States v. AMC Entm't, Inc., 245 F. Supp. 2d 1094, 1100-01 (C.D. Cal.

27

2003) (expert testimony establishing tolerances for de minimis violations can be used to rebut motion for summary judgment).

28 14 Store No. 2801 is also scheduled to begin remodeling in early 2005. ç Allen Decl. ¶ 5.

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1 existence of a barrier and that the barrier existed at the time the class member visited the restaurant,

2 rather than the date the Special Master visited the restaurant.

3

Determinations Of Non-Compliance Are Limited To The Pilot Stores. Contrary to

4 Plaintiffs' suggestion that the Court's decision on "the[] legal questions [in their Motion] will also

5 apply to many or all of the remaining approximately 200 [Restaurants]," in fact each element at

6 each of the remaining 200 Restaurants must be evaluated separately to determine the applicable

7 standard and defenses available to Taco Bell and appropriate injunctive relief, if any. By express

8 agreement of the parties, the factual basis for the determinations Plaintiffs seek from the Court are

9 limited to the 497 elements specified by Plaintiffs at the Pilot Stores, and will not shed any light on

10 the dimensions or compliance of any of the approximately 120,000 elements at the other 200

11 Restaurants. In any event, injunctive relief may not be applied to the remaining Restaurants where

12 Plaintiffs fail to establish a pattern or practice of discrimination by Taco Bell. Disabled Rights

13 Action Comm. v. Fremont St. Experience LLC, 44 Fed. Appx. 100, 102 (9th Cir. 2002), cert.

14 denied, 537 U.S. 1107 (2003) (minor technical violations "in the face of numerous instances of

15 compliance. . . . cannot be construed to show a discriminatory pattern, practice or policy.").

16

Plaintiffs' Cases Do Not Help. Plaintiffs cite three cases — Long v. Coast Resorts, Inc.,

17 United States v. AMC Entm't, Inc., and Sapp v. MHI P'ship, Ltd. — for the proposition that partial

18 summary judgment is appropriate based on application of ADA standards to undisputed facts.

19 Each of these cases is readily distinguishable from the present case. the only undisputed facts

20 here are the stipulated dimensions as reported by the Special Master. As shown below, there are

21 significant disputed facts, including Plaintiffs' recitation of those dimensions and whether the

22 underlying circumstances at each Restaurant require modifications. Second, because the parties'

23 stipulation limits the use of the agreed dimensions to the surveyed Restaurants, Plaintiffs' attempt

24 to generalize liability from the Pilot Stores does not work. Third, none of Plaintiffs' cases involved

25 a class action with an express procedure for resolution of Plaintiffs' injunctive relief and damages

26 claims. Thus, none of the cases relieves Plaintiffs from the agreed procedures as approved by the

27 Court. Fourth, none of the cases involved a class action with multiple facilities where the plaintiffs

28
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1 seek to impose liability over a class period and where the existence of a violation may have

2 changed over time.

3

The singular vice of Plaintiffs' Motion is that it jumps the gun. Plaintiffs' Motion does not

4 and cannot resolve any issues of liability either individually or on a class-wide basis. In the end,

5 Plaintiffs' attempt in advance of the agreed meet and confer process to gain a Court adjudication

6 that a small subset of the surveyed elements do not comply with ADAAG or Title 24 does nothing

7 to advance this litigation and should be rejected.

8

C. Plaintiffs Fail To Establish The Refluisite Element Of Intent For

Determinations Of Non-Compliance With Title 24

9 Plaintiffs seek partial summary judgment on the issue of liability as to 246 elements that

10
allegedly violate Title 24, California's accessibility standards, but comply with ADAAG. The

11
Unruh Act, amended in 1987 to cover persons with disabilities, states that "[w]hoever denies, aids

12
or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5 or 51.6 is

13
liable for each and every offense . . . •" Cal. Civ. Code § 52(a). In Harris v. Capital Growth
14
Investors XIV, 52 Cal. 3d 1142 (1991), the California Supreme Court clearly held that only

15
intentional acts of discrimination are actionable under the Unruh Act:

16
Several aspects of the [] language {of the Unruh Act] point to an emphasis on

17

intentional discrimination. The references to 'aiding' and 'inciting' denial of access

to public accommodations, to making discriminations. . . and to the commission of

18

an 'offense' imply willful, affirmative misconduct on the part of those who violate

19

the Act. . . . [Wie hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination.

20 Id. at 1172, 1175 (emphasis added). Thus, the Unruh Act was not intended to address arbitrary or

21 negligent acts of discrimination in access to public accommodations.

22 Following Harris, the Unruh Act was amended in 1992 to provide that "[a] violation of the

23 right of any individual under the Americans with Disabilities Act of 1990. . . shall also constitute a

24 violation of this section." Cal. Civ. Code § 51(f). In considering a plaintiffs claims for 25 discrimination in violation of both the ADA and Unruh Act, the court in Presta v. Peninsula

26 Corridor Joint Powers, 16 F. Supp. 2d 1134 (N.D. Cal. 1998), held that "[b]ecause the Unruh Act

27 has adopted the full expanse of the ADA, it must follow, that the same standards for liability apply

28

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Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 24 of 31

1 under both Acts. Accordingly, if [a] [p] laintiff need not demonstrate discriminatory intent to prove 2 a claim under the ADA, she similarly need not show such intent to prevail under the Unruh Act."

3 Presta, 16 F. Supp. 2d at 1135-36. Presta thus established an exception to the intent requirement

4 for Unruh Act claims based on a violation of the ADA. However, Presta did not address whether

5 an intent requirement exists for Unruh Act claims alleging disability discrimination solely in

6 violation of California state law and not in violation of the ADA.'5

7

The Ninth Circuit adopted the exception noted in Presta, but made clear that the intent

8 requirement may still exist for claims under the Unruh Act that are not based on an underlying

9 ADA violation:

10

[T]he question arises whether, by virtue of the 1992 amendment to

the Unruh Act, Harris's requirement of intentional discrimination

11

still exists in a suit such as this. Apparently no binding authority

addresses this question. . . . Harris may continue to have relevance to

12

other Unruh Act suits, [but] no showing of intentional discrimination

is required where the Unruh Act violation is premised on an ADA

13

violation.

14 Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004).

15

Thus, neither the 1992 amendment nor the ruling in Presta have done away with the intent

16 requirement of the Unruh Act for non-ADA cases. Cf Grier v. Brown, 230 F. Supp. 2d 1108, 1120
17 (N.D. Cal. 2002) (dismissing plaintiffs' Unruh Act claims on basis of gender for failure to

18 demonstrate intent). As a result, with respect to the 246 violations alleged by Plaintiffs to violate 19 only California state law and not the ADA, Plaintiffs must plead intent. However, Plaintiffs have 20 not even pled, let alone established, intent to discriminate on the part of Taco Bell. Accordingly, at 21 a minimum, Plaintiffs should be denied summary judgment on each of the 246 alleged violations

22 based solely on California's accessibility standards.16

23

24 15 There has not been a decision that directly addresses this issue. This lack of authority was
recognized in Pickern v. Best Western Timber Cove Lodge Marina Resort, No. Civ. S-00-1637 25 WBS/DAD, 2002 U.S. Dist. LEXIS 1709 (E.D. Cal. Jan. 17, 2002). In Pickern, the Court applied
the Presta exception, but noted that it was "unaware of any California case decided after the 26 amendment[] to [the Unruh Act] that has ruled on the issue of whether a plaintiff must prove
intentional discrimination or a violation of Title 24 to prevail on a state claim for disability 27 discrimination." Pickern, 2002 U.S. Dist. LEXIS 1709 at *27 n.4.

16
28

A list of these 246 alleged violations is attached to the McKaig Deci. as Exhibit C.

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1 VI.
2

SUBSTANTIAL MATERIAL FACTS IN DISPUTE PRECLUDE SUMMARY JUDGMENT
Summary judgment is also inappropriate because there are numerous material facts in

dispute. First, some of the "stipulated facts" upon which Plaintiffs base their Motion are in dispute

because Plaintiffs have misrepresented some of the final determinations made by the Special

Master. Second, because the parties never agreed as to which standards (including which version 6
of the standards) apply to each of the allegedly non-compliant elements, there are factual disputes

subject to expert testimony. Finally, there are disputes as to whether certain elements alleged to be 8
non-compliant are in fact non-compliant.

A. Material Facts In Dispute Re2ardin Store Dimensions

10

Taco Bell d.isputes whether the d.imens.ions for van. ous elements in the 19 Pilot Stores are

accurate as represented in Plaintiffs' moving papers.17 Taco Bell and Plaintiffs stipulated that

12 dimensions in the Special Master's final reports for the Pilot Stores would be stipulations of fact in

13 this case. In support of their Motion, Plaintiffs' counsel prepared 19 exhibits, which purport to

14 represent the dimensions determined by the Special Master. However, in certain instances, the

15 exhibits prepared by counsel do not accurately reflect the dimensions recorded by the Special

16 Master. For example, for Restaurant No. 3132, Pla.int.iffs cla.im there is only one accessible seating

17 position. Robertson Ex. 11, p.3. However, the final report prepared by the Special Master

18 indicates there are 3 accessible seating positions, which satisfies the standard that Plaintiffs applied

19 to this element. See McKaig Deci., Ex. D, p. 2 (Excerpts of Special Master's Report). These types

20 of discrepancies in the Exhibits prepared by Plaintiffs' counsel present material issues of fact that

21 preclude summary judgment.18

22 __________________________

23

17 Plaintiffs identify the stipulated dimensions for the Pilot Stores as "Stipulated Existing Dimensions." The Special Master's findings are of the conditions at the time of his visit to the

24

particular restaurant. The parties dispute whether in the normal course of events any alleged deviations from ADAAG or Title 24 will in fact exist after completion of the meet and confer

25

parroecseusbsjencetxttoScuhnamngieer.dAues

discussed in Taco Bell's Motion to Modify, to maintenance, repair, or remodeling, such

elements at the Restaurants that many elements will not

26

have the same dimension as measured on the date of survey. Mot. to Modify at 9, 16-18. Accordingly, a number of the dimensions as reported by Plaintiffs may have changed or will be

27

changed, making a liability determination as to particular restaurants inappropriate, or in the event that certain elements that were non-compliant are now compliant, moot.

28 18 Additional discrepancies are described in Exhibit E to the McKaig Deci.

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1

B. Material Facts In Dispute Re2ardin Applicable Standards

2

Taco Bell disputes whether the standards Plaintiffs apply to the various elements at each of

3 the 19 Restaurants are correct and objects to Plaintiffs' counsel's inadmissible testimony that certain

4 accessibility standards apply based on their own analysis of a handful of documents and their own

5 reading of the statutes. See Puliafico v. County of San Bernardino, 42 F. Supp. 2d 1000, 1004 n.7

6 (C.D. Cal. 1999) ("Counsel's characterizations of evidence are not, themselves, evidence"); AIvIC

7 Entm't, Inc., 245 F. Supp. 2d at 1097 n.9 ("counsel of record is not competent to give evidence on

8 substantive matters at issue in this case.").

9

For example, in alleging violations at Restaurant Nos. 18687 and 19509, Plaintiffs misstate

10 the standard they are applying by referring to the number of total tables and the number of

ii accessible tables at each restaurant. See Robertson Ex. 17, p. 2 & Ex. 18, p. 3. The numbers

12 provided by the Special Master, on the other hand, represent the number of total seats and

13 accessible seats at these restaurants. Plaintiffs' choice of words is seemingly an effort to argue that

14 the number of tables as opposed to seats is the applicable standard. The ADAAG section cited by

15 Plaintiffs, however, does not support their claim. That section states that "at least five percent

16 (5%), but not less than one, of the fixed or built-in seating areas or tables shall comply with"

17 accessibility standards. 28 C.F.R. § 36 app. 4.1.3(18) (emphasis added).

18

In asserting their claims, Plaintiffs attempt to read an "and" into the statute where none

19 should exist. At the appropriate time, if necessary, Taco Bell intends to present expert testimony

20 that, as applied by experts in the field, ADAAG requires that five percent of either the tables or

21 seats be accessible. Such questions about the terms and provisions of ADAAG requiring expert

22 testimony further highlight why Plaintiffs' Motion is premature because there has been no meet and

23 confer and the parties are not required to designate their experts until October 30, 2005. See Joint

24 Statement ¶ 9.

25

As another example, Plaintiffs allege that "alterations" in 1993 to the dining room of

26 Restaurant No. 3132 required that the restrooms be brought into compliance with the 1989

27 California Standards. $ Robertson Ex. 11, p. 1. But the California Standards provide an

28 exception to this requirement "[wjhen the total construction cost of alterations, structural repairs or

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1 additions does not exceed a valuation threshold of $50,000.. . and the enforcing agency finds that

2 compliance with this code creates an unreasonable hardship, compliance shall be limited to the

3 actual work of the project." Cal. Code Regs. tit. 24 § 1 1OA(b)1 1A (Exception 1) (1989).

4

Determining whether an "unreasonable hardship" exists in turn depends on several factors,

5 including the cost of providing access, the cost of all construction, and the nature of the

6 accessibility that would be gained or lost. Cal. Code Regs. tit. 24 § 422 (1989). If this issue is one

7 that the parties cannot resolve during the meet and confer process, then discovery and expert

8 testimony will be required to determine whether an unreasonable hardship existed and whether the

9 hardship was recorded by the enforcing agency. At this stage of the proceedings, a determination

10 of "unreasonable hardship" cannot be made, and Taco Bell disputes that it was required to comply

11 with the 1989 California Standards.19

12

Moreover, without the complete construction, maintenance, and repair history of each

13 Restaurant, the parties and the Court cannot determine the appropriate standards to apply to each

14 element.2° See Brother v. CPL Invs., Inc., 317 F. Supp. 2d 1358, 1370 (S.D. Fla. 2004) (noting that

15 "Plaintiffs [must] establish[] that the new construction standard applies" and declining to apply

16 standard based on the undisputed fact that a portion of the facility had undergone new

17 construction). Although Taco Bell does not dispute the authenticity of the documents Taco Bell

18 produced to Plaintiffs during informal discovery, the documentation does not reflect a complete

19 picture of the construction, maintenance, and remodel history of each of the Pilot Stores. In that

20 regard, the meet and confer process agreed to by the parties and approved by the Court should

21 eliminate the need to perform such exhaustive discovery into each element at each Restaurant,

22 leaving only those matters in dispute after the meet and confer process to the discovery process.

23

24

25 19 "Technical infeasibility" and "limiting alterations to actual work" are other exceptions that
26 may apply; however, discovery is required before such determinations can be made. See McKaig
Deci., Ex. F for additional examples.
27 20 Although some of the seemingly relevant documents incorporated in Plaintiffs' Exhibits may be subject to judicial notice, the documents are not self-authenticating and require testimony
28 to explain their contents. Plaintiffs provide none.
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1

C. Material Facts In Dispute Reardin Compliance

2

1. Taco Bell disputes whether certain elements, although not in technical

compliance, still provide equal or greater access.

3

ADAAG specifically provides that "{d]epartures from particular technical and scoping

requirements . . . are permitted where the alternative designs . . . will provide substantially

equivalent . . . access to and usability of the facility. 28 C.F.R. § 36 app. 2.2. Exceptions to
6 ADAAG have been explained as "an acknowledgment that the federal government does not enjoy a

monopoly on good ideas, and that there may be more than one means to accomplish a particular 8
objective." Indep. Living Res., 982 F. Supp. at 727.

Here, a number of the dimensions cited by Plaintiffs permit equivalent access such that
10
there is no ADA violation. For example, Plaintiffs identify Restaurant No. 2423's women's

restroom rear grab bar height as being non-compliant because it is 37 inches as opposed to in the

12

range of 33 to 36 inches as permitted by the standards Plaintiffs cite. See Robertson Ex. 4, p. 3. A

13

rear grab bar height within the "acceptable" range permits 95% of wheelchair users access.

14

Bradtmiller Dee!., Ex. C at 4. By comparison, a rear grab bar height of 37 inches (like the one in

15

Restaurant No. 2423's women's restroom) permits 96.7% of all wheelchair users access. See id.

16

As another example, Plaintiffs identify the lavatory rim height in Restaurant No. 2801's

17

mens' restroom as being non-compliant because it is 35 Y2 inches as opposed to the maximum of 34

18

inches permitted by the standards Plaintiffs cite. See Robertson Ex. 7, p. 3. A lavatory rim height

19

of 34 inches permits more than 99% of wheelchair users access. See Bradtmiller Deci., Ex. C at 2. 20

Similarly, a lavatory rim height of 35 1/2 inches (like the one in Restaurant No. 2801's men's
21

restroom) permits more than 99% of all wheelchair users access. See id. 22

2. Taco Bell disputes whether certain elements are required to be in

23

technical compliance with standards because of applicable exceptions

24

under the standards.

25

The ADA provides that full compliance with the new construction provisions is not

26 required where the public accommodation or commercial facility demonstrates that it is structurally

27 impracticable or technically infeasible to comply. See 28 C.F.R. § 36.401(c), 36 app. 4.1.6(j).

28 Whether these exceptions apply to the violations alleged by Plaintiffs present another issue of fact.
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1

For example, for Restaurant No. 2778, Plaintiffs allege that the restrooms were remodeled

2 in 1998 and therefore required to comply with ADAAG's minimum requirements for new

3 construction, which require 54 inches depth of clear floor area on the pull side for a hinge

4 approach. See Robertson Ex. 6, pp. 1, 2. On this basis, Plaintiffs ask the Court to rule that this

5 element violates ADAAG. However, § 4.1.6(j) of ADAAG specifically provides that "[i]n 6 alteration work, if compliance with [the minimum requirements for new construction] is

7 technically infeasible, the alteration shall provide accessibility to the maximum extent feasible."

8 28 C.F.R. § 36 app. 4.1.6(j). Alterations that are "technically infeasible" include those that "ha[ve]

9 little likelihood of being accomplished because existing structural conditions would require

10 removing or altering a load-bearing member which is an essential part of the structural frame." Ici

11 To provide the depth required for new construction, walls that are essential to the structural frame

12 would need to be moved and thus this alteration is technically infeasible. In this example,

13 discovery would be required to determine (1) whether work done during the 1998 "remodel" to the

14 restroom constituted alterations requiring the restroom to comply with the new construction

15 requirements, and (2) whether compliance would require moving load-bearing walls. These

16 questions of fact are disputed, subject to discovery and expert testimony, and therefore preclude

17 granting summary judgment for Plaintiffs on this element.

18

3. Taco Bell disputes whether certain alleged violations pertain to

Plaintiffs' disabilities.
19

It is axiomatic that Plaintiffs do not have standing to assert claims as to items that do not 20

pertain to their disabilities. See Access Now, Inc. v. Walt Disney World Co., 211 F.R.D. 452, 455
21

(M.D. Fla. 2001) ("Plaintiffs may not, through the vehicle of a class action . . . seek relief for 22

alleged ADA violations which the individual Plaintiff.., could not have experienced."); Parr v. L 23

& L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1083 (D. Haw. 2000) ("[T]his Court finds that Plaintiffs 24

claims not specifically related to non-mobility must be denied."). It is Plaintiffs' burden to
25

establish that they have standing to assert their claims. See Lujan v. Defenders of Wildlife, 504 26

U.S. 555, 561 (1992); Brother, 317 F. Supp. 2d at 1368 ("Plaintiffs do not have standing to
27

complain about alleged barriers which are not related to their respective disabilities."). 28

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
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Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 30 of 31

1

Plaintiffs' class is limited to individuals who use wheelchairs or scooters for mobility.

2 However, Plaintiffs seek summary judgment on elements that would have no affect on wheelchair-

3 bound individuals. Such alleged barriers include handrails and floor mats. For example, Plaintiffs

4 cite a number of Pilot Stores as violating standards because of the lack of handrails, despite the fact

5 that a wheelchair-bound individual would not in the ordinary course use a handrail.21 Plaintiffs do

6 not have standing to seek judgment on such claims. Plaintiffs have failed to establish standing for

7 their claims with any kind of admissible evidence, and consequently, the Court cannot make

8 determinations of liability with respect to elements that do not relate to Plaintiffs' alleged

9 disabilities.

10

4. Taco Bell disputes whether certain allegedly non-compliant elements are

under Taco Bell's control.

11

In Pickern v. Pier 1 Imports, Inc., a California federal court denied summary judgment as to
12

the issue of liability where the defendant did not have control over adjoining land, and thereby was
13

not required to construct a ramp connecting the public sidewalk over that land and to the store. No.
14

CIV. S 03-12 1 FCD JFM, 2004 WL 2252079, *6 (E.D. Cal. Sept. 30, 2004). In this case, Plaintiffs
15

allege parking lot violations for all 19 of the Pilot Stores referred to in their Motion. However, it
16

has never been established that Taco Bell has control or management over the parking lots. Indeed,
17

the Special Master indicated that Restaurant Nos. 15614, 16909 and 19509 have parking lots which
18

appear to be common areas and for which it has not been determined who owns or maintains the
19

lots. See McKaig Decl., Ex. D pp. 17-19 (Excerpts of Special Master's Report). 20

Moreover, documents produced to Plaintiffs in conjunction with the Pilot Program include 21

a lease signed by the Landlord for Restaurant No. 3579. Plaintiffs allege five parking lot violations 22

at this Restaurant for which it seeks determinations of non-compliance by Taco Bell, but the lease 23

for this Restaurant expressly grants Taco Bell a "non-exclusive right to use the Common Facilities 24

in the Shopping Center for ingress, egress, and parking of motor vehicles subject to the exclusive 25

rights of control and operation reserved to Landlord." See McKaig Deci., Ex. G (emphasis added). 26

27

21

See, e.g., RobertsonEx. 2,p. 1; Ex. 3, p. 1; Ex. 4,p. 1; Ex. S,p. 2; Ex. 7,p. 2; (identifying

28 violations for floor mats and handrails).

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Case 3:02-cv-05849-PJH Document 124 Filed 11/09/2004 Page 31 of 31

1 Such language clearly suggests that the Landlord, not Taco Bell, is in control of the parking lot at 2 this Restaurant. Thus, Taco Bell cannot be held to be in violation of the applicable standards for

3 the parking lot which it does not control. 4 VII. TACO BELL'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
As set forth above, Taco Bell believes that any motion for partial summary judgment is 6 premature and should be denied by this Court. Suchmotions run counter to the express agreement

of the parties and the case management procedures approved by the Court. However, should the 8 Court decide that Plaintiffs' Motion is not premature, pursuant to Federal Rule of Civil Procedure
56, Taco Bell requests partial summary judgment that the elements listed in Exhibit A to the 10 McKaig Decl. comply with ADAAG and that the elements listed in Exhibit B to the McKaig Decl.

comply with both ADAAG and Title 24.

12

Exhibits A and B are charts that include the stipulated dimensions for all the elements that

13 comply with (1) the current ADA standards; and (2) both the current ADA standards and current

14 version of Title 24. These charts show that 2567 ofthe elements measured comply with ADAAG

15 and 2503 elements comply with both ADAAG and Title 24. Because each of these elements are in

16 compliance with the applicable standards, Plaintiffs' claims regarding these elements should be

17 extinguished and Taco Bell should be granted summary judgment.

18

CONCLUSION

19

For all the foregoing reasons, Taco Bell requests that this Court deny Plaintiffs' Motion for

20 Partial Summary Judgment. In the alternative, should this Court grant, in part or in full, Plaintiffs'

21 Motion, Taco Bell requests that this Court grant Taco Bell's conditional cross-motion for partial

22 summary judgment. 23 Dated: November 9, 2004

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

24

25

By:
lUàan Mooney

26

Attorneys for D enda Taco Bell Corp.

27

28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C 02 5849 MJJ ADR
25
375359.12-Los Angeles Server 2A - MSW

 
 Case 3:02-cv-05849-PJH Document 132 Filed 11/16/2004 Page 1 of 21

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654

9 Attorneys for Plaintiffs
10

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 14

FRANCIE E. MOELLER et al,

15 Plaintiffs,

Case No. C 02 5849 MJJ ADR

16 v.
17 TACO BELL CORP.,

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

18

Defendant. 19

Date: December 7, 2004 Time: 9:30 a.m.

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR: Plaintiffs’ Reply Brief in Support of Motion for Partial Summary Judgment

Case 3:02-cv-05849-PJH Document 132 Filed 11/16/2004 Page 2 of 21

1

TABLE OF CONTENTS

2 Memorandum of Points and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

6 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7 I. Plaintiffs’ Motion is Timely and

8

Will Assist the Meet and Confer Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

9

II. Defendant Not Satisfied the Requirements of Rule 56 . . . . . . . . . . . . . . . . . . . 3

10

A. Defendant Has Not Satisfied the Requirements of Rule 56(e) . . . . . . . 3

11

B. Defendant Has Not Satisfied the Requirements of Rule 56(f) . . . . . . . . 3

12

III. Plaintiffs’ Motion for Summary Judgment as to Liability is Proper . . . . . . . . . 6

13

A. This Court May Grant Summary Judgment on

Liability and Reserve the Question of Appropriate

14

Injunctive Relief for Future Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 6

15

B. There is No Exception for “De Minimis” Violations . . . . . . . . . . . . . . 7

16

C. Plaintiffs’ Claims Are Not Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

17

D. Plaintiffs are Not Required to Prove Intent

to Prevail on this Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 IV. There is No Genuine Issue as to Any Material Fact and

19

Plaintiffs are Entitled to Judgment as a Matter of Law . . . . . . . . . . . . . . . . . . . 9

20

A. There are No Remaining Disputed Issues of Fact . . . . . . . . . . . . . . . . . 9

21

B. Defendant Is Not Entitled to Rely On The Defenses of

“Structurally Impracticable,” “Technically Infeasible,”

22

“Unreasonable Hardship,” or “Limited to Actual Work” . . . . . . . . . . 10

23

1. The “Structurally Impracticable” and

“Technically Infeasible” Defenses under the ADA . . . . . . . . . 10

24 2. The “Unreasonable Hardship” and “Limited to Actual

25

Work” Defenses Under the California Standards . . . . . . . . . . 11

26

3. Defendant Has Not Satisfied Rule 56 With

Respect to These Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

27 C. Equivalent Facilitation Was Meant to Encourage Alternative

28

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1

Designs and Technologies, Not to Excuse Violations . . . . . . . . . . . . . 13

2

D. Plaintiffs Have Standing To Address Floor Mats and Handrails . . . . . 14

3

E. Defendant Is Responsible for Violations in its Parking Lots . . . . . . . . 14

4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5

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

TABLE OF AUTHORITIES

2

Cases

3 Ability Center of Greater Toledo v. City of Sandusky,

133 F. Supp. 2d 589 (N.D. Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4

Adarand Constructors, Inc. v. Slater,

5

528 U.S. 216 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

6 Aguilar v. Int’l Longshoremen’s Union Local No. 10,

966 F.2d 443 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7

Armstrong v. Turner Indus., Inc.,

8

141 F.3d 554 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9 Boemio v. Love’s Restaurant,

954 F. Supp. 204 (S.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

10

Brother v. CPL Invs., Inc.,

11

317 F. Supp.2d 1358 (S.D. Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12 Burton v. City of Belle Glade,

178 F.3d 1175 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

13

California v. Campbell,

14

138 F.3d 772 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

15 Conkle v. Jeong,

73 F.3d 909 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

16

Cupolo v. Bay Area Rapid Transit,

17

5 F. Supp. 2d 1078 (N.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 Cybiotronics, Ltd.v. Golden Source Elecs, Ltd.,

No. 99CV10522, 2001 WL 327826 (C.D.Cal. Feb. 26, 2001) . . . . . . . . . . . . . . . . . . . 5

19

Deck v. City of Toledo,

20

76 F. Supp.2d 816 (N.D. Ohio 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

21 Donald v. Café Royale, Inc.,

266 Cal. Rptr. 804 (Cal. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

22

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

23

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

24 In re Marine Asbestos Cases,

265 F.3d 861 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

25

Indep. Living Res. v. Oregon Arena Corp.,

26

982 F. Supp. 698 (D. Or. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

27 Lahey v. Contra Costa County Dept. of Children & Family Servs.,
No. C01-1075 MJJ, 2004 WL 2055716 (N.D. Cal. Sept. 2, 2004) . . . . . . . . . . . . . . . . 4 28

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1 Leer v. Murphy,

844 F.2d 628 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2

Long v. Coast Resorts, Inc.,

3

267 F.3d 918 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 13

4 Meineker v. Hoyts Cinemas Corp.,

154 F. Supp. 2d 376 (N.D.N.Y. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5

Moeller v. Taco Bell Corp.,

6

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7 Pickern v. Pier 1 Imports, Inc.,

No. CIV S 03-121 FCD JFM, 2004 WL 2252079 (E.D. Cal. 2004) . . . . . . . . . . . . . . 15

8

Sage Realty Corp. v. Ins. Co. of North Am.,

9

34 F.3d 124 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10 San Francisco Baykeeper, Inc. v. Browner,

147 F. Supp. 2d 991 (N.D. Cal. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

Sapp v. MHI P’ship, Ltd.,

12

199 F. Supp. 2d 578 (N.D. Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

13 Thornburg v. Gingles,

478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14

Tice v. Centre Area Transp. Auth.,

15

247 F.3d 506 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

16 UA Local 343 of the United Ass’n of Journeymen & Apprentices v.

Nor-Cal Plumbing, Inc., 48 F.3d 1465 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 3

17

United States v. AMC Entm’t, Inc.,

18

245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 13-14

19 Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

20

Wellman v. Writers Guild of Am, West, Inc.,

21

146 F.3d 666 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

22

Statutes

23 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

24 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14

25 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

26 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

27 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28

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1

Regulations and Other Authorities

2 28 C.F.R. § 36.401(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3 Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A . . . . . . . . . . . . . 7, 11, 13, 14

4 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

5 Office of the State Architect & Department of Rehabilitation, California State Accessibility Standards - Title 24 CAC - Interpretive Manual . . . . . . . . . . . . . . . . . . . . . 11, 12
6
Architectural and Transportation Barriers Compliance Board, ADAAG Manual: 7 a guide to the Americans with Disabilities Act Accessibility Guidelines . . . . . . . . . . . . . 13, 14

8 U.S. Dep’t. of Justice, “Title III of the Americans with Disabilities Act: Technical Assistance Manual” (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9
Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 10
Fed. R. Civ. P. 30(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 11
Fed. R. Evid. 1006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 12

13

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

2

ISSUES TO BE DECIDED

3

Whether, based on stipulated dimensions, elements in 19 corporate-owned Taco Bell

4 restaurants in California violate Title III of the Americans with Disabilities Act, 42 U.S.C.

5 § 12101 et seq. (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh”),

6 and/or the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the “CDPA”).

7

INTRODUCTION

8

In accordance with the schedule set forth in the Joint Supplemental Case Management

9 Statement and [Proposed] Order (“Joint Statement”), on October 19, 2004, Plaintiffs filed their

10 Motion for Partial Summary Judgment. In that motion, Plaintiffs demonstrated that the

11 stipulated measurements of certain architectural elements at 19 of Defendant’s stores violate

12 accessibility standards in effect at the time that the restaurants were constructed and/or altered.

13

The burden then shifted to Defendant, under Rule 56(e), to “set forth specific facts

14 showing that there is a genuine issue for trial.” Defendant has provided specific evidence

15 challenging only 16 of the over 400 items in Plaintiffs’ Motion. For the sake of simplicity,

16 Plaintiffs are withdrawing those items from their Motion.

17

The remainder of Defendant’s Opposition to Plaintiffs’ Motion for Partial Summary

18 Judgment and Conditional Cross-Motion for Partial Summary Judgment (“Opp.”) consists of:

19 (a) conclusory assertions not supported by specific facts as required by Rule 56(e); (b) requests

20 under Rule 56(f) for additional discovery that do not meet the requirements of that rule; and (c)

21 legal arguments (incorrect, Plaintiffs demonstrate below, but perfectly appropriate for

22 disposition on summary judgment). Defendant has failed to meet its burden under Rule 56, and

23 Plaintiffs’ Motion should be granted.

24

FACTS

25

The exhibits to Plaintiffs’ Motion provided undisputed facts relating to (1) the dates of

26 construction of, and alterations to, 19 Taco Bell restaurants; and (2) dimensions of certain

27 elements at each of those restaurants. (See Robertson Decl. Exs. 1-19.) Defendant has not

28

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1 disputed any of the specific facts in the first category,1 and only 16 of the dimensions in the

2 second. (See Opp. at 19; McKaig Decl. Ex. E.) Plaintiffs hereby withdraw those 16 items.

3 While Plaintiffs do not necessarily agree with Defendant, because similar dimensions remain

4 covered by this Motion, omission of these 16 will not affect its primary benefit: resolution of

5 common legal questions concerning claims and defenses. Plaintiffs submit a Revised

6 Appendix to their [Revised Proposed] Order Granting Plaintiffs’ Motion for Partial Summary

7 Judgment from which these 16 items have been deleted.

8

ARGUMENT

9 I. Plaintiffs’ Motion is Timely and Will Assist the Meet and Confer Process.

10

The parties’ Joint Statement provided for both a meet and confer process -- scheduled

11 for next summer -- in which the parties will attempt to reach resolution on as many stores and

12 elements as they can, and for a motion by Plaintiffs “for summary judgment as to liability

13 relating to a subset of stores,” including the present briefing schedule. (Id. at 3-4, 7.) This

14 schedule permits resolution of a number of common legal questions that will apply to many of

15 the other restaurants, and thus provides guidance to the parties in their meet and confer process.

16

Specifically, the Court’s resolution of the following legal questions -- at issue in this

17 Motion -- will be helpful to the parties in their future discussions: (1) What standards apply to

18 restaurants based on dates of construction or alteration? (2) What standards apply to elements

19 commonly found in Taco Bell restaurants, for example, parking spaces, doors, queue lines,

20 dining rooms, and restrooms? (3) When is it appropriate to apply certain defenses? (4) Are “de

21 minimis” or “technical” violations considered violations of applicable standards? and (5) May

22 Defendant assert that a violation of applicable standards constitutes “equivalent facilitation”?

23

24

1

Plaintiffs supported these facts with documents produced by Taco Bell and

25 others obtained from building departments. Defendant concedes that its own documents are

authentic, but suggests that some of the building department documents may not be properly

26 authenticated. (Opp. at 21 & n. 20.) Defendant does not dispute any specific facts in those

documents. Although Plaintiffs believe the documents are either self-authenticating or

27 properly authenticated in the Robertson Declaration, Plaintiffs submit herewith the Declaration

of Kendra L. Tanacea, the person responsible for obtaining the building department documents,

28 authenticating those documents.

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1

The parties’ views on these legal questions differ, and without this Motion, the meet

2 and confer process could devolve into a frustrating exchange of opposing legal views. It is far

3 more efficient -- and consistent with the goals of the Joint Statement -- to address these

4 questions in advance, so as to guide the parties’ discussions. Contrary to Defendant’s

5 speculation (see Opp. at 4), Plaintiffs do not anticipate filing additional motions for summary

6 judgment unless necessary to address a legal question not resolved through this Motion.

7

Finally, this Motion requests rulings only as to liability. Plaintiffs propose to address

8 remedies for the violations established through their Motion during the meet and confer

9 process. Any disputes concerning remedies that remain after that process will then be

10 addressed in accordance with the Joint Statement. (See id. at 4.)

11 II. Defendant Has Not Satisfied the Requirements of Rule 56.

12

A. Defendant Has Not Satisfied the Requirements of Rule 56(e).

13

Rule 56(e) requires a party opposing summary judgment to “set forth specific facts

14 showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e) (emphasis added). “The

15 party opposing summary judgment may not rest on conclusory allegations, but must set forth

16 specific facts showing that there is a genuine issue for trial.” Leer v. Murphy, 844 F.2d 628,

17 631 (9th Cir. 1988). The opposing party’s “burden of contradicting [the movant’s] evidence is

18 not negligible . . .” UA Local 343 of the United Ass’n of Journeymen & Apprentices v. Nor-

19 Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1995) (citation omitted). Defendant has not

20 carried this burden. Instead, its opposition is based on conclusory references to potential but

21 unidentified or unsupported factual issues. This is not sufficient to defeat Plaintiffs’ Motion.

22

B. Defendant Has Not Satisfied the Requirements of Rule 56(f).

23

Defendant argues that Plaintiff’s Motion should be denied as premature under Rule

24 56(f) “because Taco Bell has not yet had the benefit of full discovery.” (Opp. at 11.) Yet the

25 general categories of facts it claims remain undiscovered are all (1) within its control; (2) in the

26 public record; or (3) legal questions, inappropriate for expert testimony.

27

Rule 56(f) “requires more than a perfunctory assertion that the party cannot respond

28

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1 because it needs to conduct discovery. Rather, the Rule requires affidavits setting forth with

2 particularity (1) why the party opposing summary judgment cannot respond [and] (2) the

3 particular facts that the party reasonably expects to obtain in further discovery . . .” Lahey v.

4 Contra Costa County Dep’t. of Children & Family Servs., No. C01-1075 MJJ, 2004 WL

5 2055716, *13 n.9 (N.D. Cal. Sept. 2, 2004). Rule 56(f) does not apply when the facts

6 necessary to oppose summary judgment are in the control of the non-moving party, see, e.g., In

7 re Marine Asbestos Cases, 265 F.3d 861, 869 (9th Cir. 2001), or where the requested discovery

8 is a matter of public record. See, .e.g., Sage Realty Corp. v. Ins. Co. of North Am., 34 F.3d

9 124, 128 (2d Cir. 1994). Failure to comply with Rule 56(f) is grounds for denying discovery

10 and proceeding to summary judgment. Calif. v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).

11

The declaration submitted in support of Defendant’s Rule 56(f) request identifies only

12 two reasons why it cannot respond to Plaintiffs’ Motion: (1) that it needs time to designate an

13 expert to testify concerning applicable standards; and (2) that it needs time to discover evidence

14 from third parties concerning liability for common areas at its restaurants. (Mooney Decl. ¶ 6.)

15 Neither of these reasons justifies the application of Rule 56(f).

16

Defendant’s first reason is improper because “matters of law [are] for the court’s

17 determination [and are] inappropriate subjects for expert testimony.” Aguilar v. Int’l

18 Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992). Specifically, expert

19 testimony concerning the legal standards under the ADA is inadmissible. Meineker v. Hoyts

20 Cinemas Corp., 154 F. Supp. 2d 376, 379 (N.D.N.Y. 2001) (“[e]xpert opinion as to the legal

21 standard to apply is inadmissible, as it usurps the role of the judge and is outside the expert’s

22 area of expertise.”); see also Sapp v. MHI P’ship, Ltd., 199 F. Supp. 2d 578, 589 (N.D. Tex.

23 2002) (striking expert testimony on ADA compliance). It is proper to deny a Rule 56(f) request

24 where the requested discovery consists of unnecessary expert testimony. See Wellman v.

25 Writers Guild of Am, West, Inc., 146 F.3d 666, 674 (9th Cir. 1998).

26

Defendant’s second Rule 56(f) reason -- to take discovery from third parties concerning

27 responsibility for common areas -- is also insufficient because Defendant has failed to identify

28

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1 any “particular facts” that it expects to obtain through such discovery. This omission is

2 important because, as a matter of common sense, Defendant should have in its possession any

3 documents -- leases, for example -- concerning its liability for common area violations, and it

4 has not explained what other documents would provide necessary information.

5

In its brief, Defendant argues that it needs additional time for discovery not discussed

6 its Rule 56(f) declaration, including, for example, the alterations history of each restaurant.

7 (See, e.g., Opp. at 3, 21.) Because “‘[r]eferences in memoranda . . . to a need for discovery do

8 not qualify as motions under Rule 56(f),’” Campbell, 138 F.3d at 779 (citation omitted), these

9 reasons should be disregarded. These general references in the brief are, in any event, to facts

10 in Taco Bell’s possession or in the public record, for example, at local building departments.

11

Defendant also has not complied with Rule 56(f) because it “has failed diligently to

12 pursue” the discovery it now says it needs. Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995).

13 Despite knowing the identity of the Pilot Program stores since June, and Plaintiffs’ intent to file

14 this Motion since August at the latest, Defendant has not explained why it has been unable:

15 (1) to review its own files for leases and other common area information; (2) to review these

16 files and publicly available documents at building departments to obtain construction and

17 alterations information; or (3) to hire a putative “DOJ / California Standards expert,” the last

18 despite the fact that it had time to hire two experts to conduct detailed studies of its 20 stores 19 for its motion to redefine the class.2 Discovery in this case has been underway for almost two

20 years and, with respect to Defendant’s complaint that it needs information concerning store

21 construction and remodeling (see, e.g. Opp. at 3, 21), Plaintiffs requested much of this

22 information from Defendant over a year ago. (See Second Robertson Decl. Exs. 2 & 3.)

23 “While presenting no evidence of its own ‘diligence,’ [the non-moving party] may not also

24 seek this Court’s indulgence, and further delay summary judgment.” Cybiotronics, Ltd.v.

25 Golden Source Elecs, Ltd., No. 99CV10522, 2001 WL 327826, *7 (C.D.Cal. Feb. 26, 2001).

26

27

2

See Def.’s Mot. for Modification of Class Definition at 10-11.

28

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1 III. Plaintiffs’ Motion for Summary Judgment as to Liability is Proper.

2

A. This Court May Grant Summary Judgment on Liability and Reserve the

Question of Appropriate Injunctive Relief for Future Proceedings.

3

Plaintiffs respectfully request this Court to do as the court did in United States v. AMC

4

Entm’t, Inc., 245 F. Supp. 2d 1094, 1100 n.13, 1101 (C.D. Cal. 2003): grant summary

5

judgment holding that the undisputed dimensions of certain elements at Defendant’s facilities

6

are in violation of applicable accessibility standards, while reserving the question of what

7

remedies are appropriate. Several other courts have taken this approach in cases brought under

8

the ADA. Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 713, 770 n. 100 (D.

9

Or. 1997) (ruling on violations in arena while reserving remedies questions); Deck v. Toledo,

10

76 F. Supp.2d 816, 823-24 (N.D. Ohio 1999) (granting plaintiffs’ motion for summary

11

judgment on liability, but holding that “ issuance of . . . an injunction at this juncture, on a

12

motion for summary judgment, would be premature”); Sapp, 199 F. Supp.2d at 589 (granting

13

plaintiffs’ motion for summary judgment on liability while ordering further briefing on relief).

14

Defendant argues that “liability cannot be determined without a concurrent

15

determination as to the appropriate remedy.” (Opp. at 13.) The cases it cites do not support

16

that proposition. In Burton v. Belle Glade, 178 F.3d 1175 (11th Cir. 1999),3 the court

17

addressed a voting rights claim under the governing standard of Thornburg v. Gingles, 478 18

U.S. 30 (1986). That standard explicitly “requir[ed] a plaintiff to demonstrate the existence of

19

a proper remedy.” Burton, 178 F.3d at 1199. In this context, the court made the statement

20

quoted by Defendant. That statement is reproduced below, with text omitted by Defendant

21

underlined and in bold demonstrating that it was limited to the Gingles standard:

22

23

3

None of Defendant’s cases address the propriety of resolving liability separate

24 from injunctive relief. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 315 (1982)

(upholding district court decision finding liability and issuing an injunction narrower than

25 requested by the plaintiffs); Tice v. Centre Area Transp. Auth., 247 F.3d 506, 520 (3d Cir.

2001) (holding plaintiff must show harm to recover damages under Title I of the ADA);

26 Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998) (same); San Francisco

Baykeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 996, 1001 (N.D. Cal. 2001) (expressing

27 concern that “the issues of liability and remedy are not so neatly divided,” but ultimately

denying plaintiffs’ motion for summary judgment on the merits).

28

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1

The inquiries into remedy and liability . . . cannot be separated: A district court must

determine as part of the Gingles threshold inquiry whether it can fashion a

2

permissible remedy in the particular context of the challenged system.

3 Id. There is no indication that the court intended this holding to apply outside the substantive

4 requirement of the Gingles standard.

5

B. There is No Exception for “De Minimis” Violations.

6

Defendant argues that Plaintiffs would not be entitled to injunctive relief for “de

7 minimis” violations. (Opp. at 14.) The Ninth Circuit in Long v. Coast Resorts, Inc. rejected

8 this precise argument, holding that there is no exception for “substantial compliance” or

9 “technical violations” in the application of the Department of Justice Standards for Accessible 10 Design (“DOJ Standards” or “DOJ Stds.”).4 267 F.3d 918, 923 (9th Cir. 2001). The district

11 court in Long had found that the width of bathroom doors in a hotel were out of compliance but

12 refused to order injunctive relief because of “‘the near absence of hardship and . . . minimal

13 inconvenience to wheelchair users.’” Id. (quoting district court decision). The Ninth Circuit

14 disagreed, holding that “there is no room for discretion” under 42 U.S.C. § 12182(a). Id.; see

15 also Ability Ctr. of Greater Toledo v. Sandusky, 133 F. Supp. 2d 589, 592 (N.D. Ohio 2001)

16 (holding that a one and one-half inch lip on a curb cut made it noncompliant despite the

17 defendant’s assertion that it caused “slight inconvenience to the user” because “[t]here are no

18 exceptions allowed to [the] requirements” of the DOJ Standards).

19

Defendant asserts that the AMC case held that “expert testimony establishing tolerances

20 for de minimis violations can be used to rebut [a] motion for summary judgment.” (Opp. at 15

21 n.13.) This is incorrect. The AMC court rejected the defendant’s evidence concerning

22 tolerances, and held that “arguments regarding building industry tolerances are better suited to

23 the remedies phase of this litigation.” Id., 245 F. Supp. 2d at 1100. Defendant’s attempt to

24 excuse noncompliance as de minimis should be rejected or the question should be addressed

25 during the remedies phase.

26

27

4

28 C.F.R. pt. 36, app. A.

28

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1

C. Plaintiffs’ Claims are Not Moot.

2

Defendant argues that some of Plaintiffs’ claims may be moot because its restaurants

3 “are subject to frequent change from routine maintenance, customer use, or remodels.” (Opp.

4 at 15.) This is precisely why Plaintiffs’ claims are not moot. Indeed, Defendant has argued

5 elsewhere that, because of these changes, “evidence that an element is or is not in compliance

6 today . . . is not dispositive of whether that same element was in compliance at the time a class

7 member visited the restaurant.” (Def.’s Mot. for Modification of Class Definition at 3.) In

8 addition, Plaintiffs provided extensive evidence -- undisputed by Defendant -- that Defendant 9 has remodeled its stores without bringing them into compliance with applicable standards.5 In

10 light of this evidence, none of Plaintiffs’ claims is moot.

11

Defendant’s “‘voluntary cessation of a challenged practice’” cannot moot Plaintiffs’

12 claims unless “‘subsequent events [make] it absolutely clear that the allegedly wrongful

13 behavior could not reasonably be expected to recur.’” Friends of the Earth, Inc. v. Laidlaw

14 Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations omitted). Defendant has the

15 “‘heavy burden of persua[ding]’ the court” that this is the case. Id. (citations omitted). A

16 holding of mootness is justified only if it is “absolutely clear that the litigant no longer ha[s]

17 any need of the judicial protection that it sought.” Adarand Constructors, Inc. v. Slater, 528

18 U.S. 216, 224 (2000); see also Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1084

19 (N.D. Cal. 1997) (holding that remedy of certain ADA violations did not make claims moot).

20

In light of Defendant’s repeated assertions that its restaurants change often, and the

21 undisputed evidence that it has remodeled stores without bringing them into compliance, its

22 reference to two restaurants scheduled for future remodeling does not satisfy Defendant’s

23 “heavy burden” of establishing that the elements covered by Plaintiffs ’ Motion will not, in the

24 future, continue to be out of compliance with applicable standards. Indeed, Plaintiffs “need

25 . . . the judicial protection” they seek with respect to all of the elements covered by their

26

27

5

See, e.g., Robertson Decl. Exs. 1, 3-7, 10-13, 15.

28

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1 Motion to ensure they are brought into compliance and remain so through future changes.

2

D. Plaintiffs are Not Required to Prove Intent to Prevail on this Motion.

3

Defendant argues that Plaintiffs’ motion should be denied as to elements only in

4 violation of the Title 24 of the California Regulatory Code (“California Standards” or “Cal. 5 Stds.”) because they have not established the element of intent under Unruh.6 However,

6 Plaintiffs bring their California Standards claims under the CDPA as well. See Moeller v. Taco

7 Bell Corp., 220 F.R.D. 604, 607 (N.D. Cal. 2004) (violation of California Standards is

8 violation of CDPA). A plaintiff alleging violation of the CDPA is not required to prove intent.

9 Donald v. Café Royale, Inc., 266 Cal. Rptr. 804, 808-11 (Cal. App. 1990); Boemio v. Love’s

10 Rest., 954 F. Supp. 204, 208 n.4 (S.D. Cal. 1997). Thus, Defendant’s argument that a violation

11 of Unruh based solely on the California Standards requires a showing of intent, even if true, is

12 irrelevant to the present Motion: the elements at issue are in violation of the California

13 Standards and thus of the CDPA, regardless of such a showing.

14 IV. There Is No Genuine Issue as to Any Material Fact and Plaintiffs Are Entitled to
Judgment as a Matter of Law. 15
A. There are No Remaining Disputed Issues of Fact. 16
Defendant asserted specific issues of fact concerning 16 of the items covered by 17
Plaintiffs’ Motion. Plaintiffs have withdrawn those items from their Motion. See supra at 2.7 18
Although Defendant asserts that there are disputed issues concerning the dates of 19
construction and alteration, it provides no specific facts, as required by Rule 56(e), to 20

21

22

23

6

Defendant concedes, as it must, that intent is not required to prove a violation of

the ADA, or of Unruh based on a violation of the ADA. (Opp. at 18.)

24

7

There are also no disputes concerning either the facts or law applicable to tables.

25 (See Opp. Br. at 20.) Plaintiffs agree with Defendant’s legal interpretation. Some confusion

has resulted from two typographical errors on Plaintiffs’ part, which have been corrected in the

26 Revised Appendix to Proposed Order. In both of the entries referenced by Defendant, the word

“tables” should read “seats.” Thus, in Store 18687, there are 52 total seats and in Store 19509,

27 50 total seats. In both stores, by operation of section 4.1.3(18) of the DOJ Standards, three

accessible seats are required while only two are provided.

28

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1 contradict any of the dates established by Plaintiffs’ evidence.8 Because the information it

2 claims it would need -- the “complete construction, maintenance, and repair history of each

3 Restaurant” (Opp. at 21) -- is either in its possession or in the public record, and was, in any

4 event, not addressed in its Rule 56(f) declaration, it has failed to satisfy Rule 56(f) as well.

5

Finally, none of the facts established by Plaintiffs constitutes improper testimony by

6 counsel. While the Robertson Declaration summarized certain dates for the reader’s

7 convenience -- perfectly appropriate under Rule 1006 of the Federal Rules of Evidence -- the

8 information was drawn from the attached documents or from explanations offered by

9 Defendant’s representatives. This is a far cry from the situation in AMC -- cited by Defendant

10 -- in which an attorney attempted to offer substantive testimony as to the measurements at issue

11 in the motion. Id., 245 F. Supp. 2d at 1097 n.9. In any event, again, Defendant does not

12 challenge any of the facts established by the documents attached to the Robertson Declaration.

13

B. Defendant Is Not Entitled to Rely On The Defenses of “Structurally

Impracticable,” “Technically Infeasible,” “Unreasonable Hardship,” or

14

“Limited to Actual Work.”

15

Defendant invokes four defenses to its obligations with respect to alterations: that the

16 alterations were “structurally impracticable” or “technically infeasible,” constituted an

17 “unreasonable hardship,” or should be “limited to the actual work.” (Opp. at 20-23.) With

18 respect to each, Defendant misstates the applicable law, presents no evidence -- or Rule 56(f) 19 testimony -- justifying reliance on the defense, or both.9

20

1. The “Structurally Impracticable” and “Technically Infeasible”

Defenses under the ADA.

21

Under the ADA, the only defense to full compliance in new construction is that it is

22

23

8

Defendant misstates the holding of Brother v. CPL Invs., Inc., 317 F. Supp.2d

24 1358 (S.D. Fla. 2004). The court did not “declin[e] to apply [the new construction] standard

based on the undisputed fact that a portion of the facility had undergone new construction.”

25 (See Opp. at 21.) Rather, the court applied the alterations standard to the altered portion of the

hotel based on evidence of alterations, but declined to apply the new construction standard

26 because the facility was built in the 1970s. Brother, 317 F. Supp. 2d at 1370.

27

9

Defendant also never pleaded any of these defenses. See generally Answer to

Am. Compl.; First Am. Answer to Pls.’ First Am. Class Action Compl.

28

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1 “structurally impracticable.” 42 U.S.C. § 12183(a)(1), Long, 267 F.3d at 923. None of the

2 other defenses asserted by Defendant apply to new construction. The “structurally

3 impracticable” defense applies “only in those rare circumstances when the unique

4 characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R.

5 § 36.401(c)(1). Although Defendant references this defense, it does not apply it to any

6 elements at issue in Plaintiffs’ Motion. (See McKaig Decl., Ex. F.)

7

The defense of technical infeasibility10 only applies to alterations under the ADA11 --

8 not to new construction -- and only goes to remedies. The DOJ Standards state that where

9 compliance is “technically infeasible, the alteration shall provide accessibility to the maximum

10 extent feasible.” Id. § 4.1.6(1)(j). Thus, it would be appropriate in this case to determine that

11 an element is out of compliance, and then -- if a “technical infeasibility” defense is properly

12 raised -- to address during the remedies phase how to provide access “to the maximum extent

13 feasible.”

14

2. The “Unreasonable Hardship” and “Limited to Actual Work”

Defenses Under the California Standards. 15

As a general matter, the California Standards require that, when facilities are altered,

16

the altered portion -- including a primary entrance to the building, the primary path of travel to

17

the altered area, and restrooms serving the altered area -- must be brought into compliance with

18 the then-applicable standards.12 “These requirements apply to all remodeling jobs regardless of

19

the valuation of the job.” Office of the State Architect & Department of Rehabilitation,

20

California State Accessibility Standards - Title 24 CAC - Interpretive Manual (“Title 24

21

22 10 “Technically infeasible” is defined to include such “physical or site constraints”
23 as the need to “remov[e] or alter[ ] a load-bearing member which is an essential part of the
structural frame.” DOJ Stds. § 4.1.6(1)(j).
24 11 Title 24 did not contain a “technical infeasibility” defense until 2002, and even
25 then was severely limited. See Cal. Stds. (2002) § 1134B.2.2. Because Plaintiff’s Motion does
not rely on the 2002 California Standards -- all of the 19 restaurants were built or altered before 26 those standards became applicable -- that defense (and Defendant’s citation to it, see McKaig
Decl., Ex. F at 1 n.2) is irrelevant. 27
12 See, e.g., Cal. Stds. (1989) § 110A(b)(11)(B)(4). 28

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1 Interpretive Manual”)13 at 9 (1987) (emphasis in original). There are two exceptions to this

2 requirement. See, e.g., Cal. Stds. (1989) § 110A(b)11A, Exceptions 1 & 2.

3

The first exception to the alterations requirement is where costs exceed a certain level

4 “and the enforcing agency finds that compliance . . . creates unreasonable hardship.” See, e.g.,

5 Cal. Stds. (1989) § 110A(b)11A, Exception 1. The law is clear that this exception only applies

6 where a request was made to -- and granted by -- the enforcing agency for a determination of

7 unreasonable hardship at the time of the alteration; in the absence of such a request, the

8 exception does not apply. “[A]n unreasonable hardship determination must be made in order to

9 execute an exemption. To do this there is a specific procedure to follow.” Title 24 Interpretive

10 Manual at 10; see also Donald, 266 Cal. Rptr. at 807 (refusing to apply exception where “[i]t

11 was undisputed . . . that [the defendant] had never made a hardship request”).

12

Under the second exception, where an alteration is made to meet accessibility

13 requirements, compliance is limited to the actual work performed, that is, only compliance in

14 related entrances, paths of travel and restrooms is excused. See, e.g., Cal. Stds. (1989)

15 § 110A(b)11A, Exception 2. This exception -- on its face -- only applies where the purpose of

16 the alteration is to bring the altered portion into compliance with accessibility requirements.

17

3. Defendant Has Not Satisfied Rule 56 With Respect to These

Defenses.

18

Defendant does not provide any evidence that any of the alterations at issue in

19

Plaintiffs’ motion were structurally impracticable or technically infeasible, that an unreasonable

20

hardship request was made (much less granted) with respect to any of those the alterations, or

21

that the purpose of any of the alterations was compliance with accessibility standards. It has

22

thus not satisfied Rule 56(e) with respect to any of these defenses.

23

In addition, none of these defenses is mentioned specifically in Defendant’s Rule 56(f)

24

declaration, so it is not entitled to rely on that Rule in requesting additional discovery on them.

25

In any event, the information necessary to invoke these defenses is all in Defendant’s

26

27

13

Appendix, Exhibit D.

28

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1 possession or in the public record, making a Rule 56(f) request inappropriate. See supra at 4.

2 The alterations on which Plaintiffs rely in applying the California Standards alterations

3 requirements were all performed by Taco Bell. (See Robertson Decl. Exs. 1, 3-7, 10-13, 15.)

4 The information necessary to determine the purpose of any of these alterations would thus be in

5 Defendant’s files and any information concerning an “unreasonable hardship” request would be

6 either in those files or in the publicly available records of the relevant building department.14

7 Technical infeasibility and structural impracticability depend on physical conditions at

8 Defendant’s restaurants, so Defendant would have ready access to that information.15

9

C. Equivalent Facilitation Was Meant to Encourage Alternative Designs and

Technologies, Not to Excuse Violations.

10

The DOJ Standards provide that “[d]epartures from particular technical and scoping

11

requirements . . . by the use of other designs and technologies are permitted where . . . [they]

12

will provide substantially equivalent or greater access to and usability of the facility.” Id. § 2.2

13

(emphasis added). “This provides flexibility for new technologies and innovative designs [sic]

14

solutions that may not have been taken into account when ADAAG was developed.”

15

Architectural and Transportation Barriers Compliance Board, ADAAG Manual: a guide to the

16

Americans with Disabilities Act Accessibility Guidelines (1998) (“ADAAG Manual”) at 7

17

(Second Robertson Decl., Ex. 4). While this is not limited to new technology, it is not intended

18

to excuse simple noncompliance. Such an interpretation would run contrary to the Ninth

19

Circuit holding in Long that there is no exception to the DOJ Standards for de minimis

20

violations. See id., 267 F.3d at 923. The case cited by Defendant is a good example of an

21

alternative design, rather than a post hoc justification for noncompliance: there, the court

22

endorsed the use of folding chairs, instead of fixed seats, in arena seating as a flexible solution

23

for companions of persons who use wheelchairs. Indep. Living Res., 982 F. Supp. at 726.

24

25 14 For privately funded buildings such as Taco Bell restaurants, the “enforcing
26 agency” is the local building department. See, e.g., Cal. Stds. (2002) § 101.17.11.4.3.

27

15 In addition to the complete lack of factual support for these defenses, the exhibit

in which Defendant set forth the 39 elements as to which it believes these defenses apply

28 contained a number of errors. See Second Robertson Decl., Ex. 1.

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1

Defendant points to two noncompliant dimensions -- the height of the grab bars in the

2 women’s restroom in Store 2423, and the height of the lavatory rim in the men’s restroom in

3 Store 2801 (Opp. at 22) -- but offers no evidence that it designed its grab bars or lavatory rims

4 to be higher than permitted by the DOJ Standards in order to provide equal or greater access.

5 See AMC, 245 F. Supp. 2d at 1101 (rejecting equivalent facilitation argument both because

6 there was no evidence of greater access and because “[t]here is no evidence that the

7 documented violations were the result of designs and technologies that were implemented in

8 order to provide substantially equivalent or greater access to and usability of the facility.”).

9 This Court should reject Defendant’s attempt to use the equivalent facilitation provision as an

10 excuse for its failure to comply with the DOJ Standards.

11

D. Plaintiffs Have Standing To Address Floor Mats and Handrails.

12

Defendant argues that Plaintiffs do not have standing to address handrails and floor

13 mats because they do not pertain to Plaintiffs’ mobility impairments. (Opp. at 24.) Defendant

14 provides no support -- legal or factual -- for this assertion, sufficient reason to disregard it. In

15 any event, the California Standards make clear that noncompliant floor mats can be a hazard to

16 people who use wheelchairs, see, e.g., Cal. Stds. (1999) Fig. 11B-25 (Appendix, Ex. G), and

17 the ADAAG Manual states that “[h]andrails alone do not necessarily provide effective edge

18 protection for people who use wheelchairs,” suggesting that handrails provide part of the

19 system for ensuring that such people do not fall off the side of the ramp. Id. at 44.

20

E. Defendant Is Responsible for Violations in its Parking Lots.

21

Title III of the ADA imposes an obligation on any entity that “owns, leases (or leases

22 to) or operates a place of public accommodation.” 42 U.S.C. § 12182(a). While a lessor and

23 lessee may allocate responsibility for violations between themselves, any such allocation “is

24 only effective as between the parties, and both . . . remain fully liable for compliance with all

25 provisions of the ADA relating to that place of public accommodation.” U.S. Dep’t. of Justice,

26 Title III of the Americans with Disabilities Act: Technical Assistance Manual, III-1.2000

27 (1992) (available at http://www.usdoj.gov/crt/ada/taman3.html#III-1.2000.)

28

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1

In any event, Taco Bell’s Rule 30(b)(6) witness has made clear that Taco Bell has

2 control over the parking lots at its stores. Its prototypes and remodeling policies include

3 parking lots. In the mid-1990s, Taco Bell instituted its “zero defects program,” which was “a

4 program to take care of all the long-deferred maintenance that had been in our stores, and that

5 meant fixing parking lots . . .” including “mak[ing] sure they were all sealed and, if need be,

6 paved, repaved.” Taco Bell “issued the standards” that “should have been used to restripe” its

7 parking lots. (Azalde Dep. at 34-35, 87, 108-10.)16

8

At best, Defendant has produced evidence -- one lease -- concerning Store 3579.

9 Because its leases are all in its control, Defendant had an obligation, under Rule 56(e), to come

10 forward with specific disputed facts with respect to each restaurant at issue in Plaintiffs’

11 Motion. Its failure is in stark contrast to the case on which it relies. In Pickern v. Pier 1

12 Imports, Inc., No. CIV S 03-121 FCD JFM, 2004 WL 2252079 (E.D. Cal. 2004), the court

13 declined to hold the defendant responsible for a strip of land that was not within the

14 defendant’s site because “defendants submit[ted] evidence that they [did] not maintain the

15 grass, make repairs or otherwise improve to the strip of land.” Id. at * 6. Defendant here has

16 submitted no such evidence, and the testimony of their own witness is directly to the contrary.

17

Conclusion

18

For the reasons set forth above and in Plaintiffs’ Motion for Partial Summary Judgment,

19 Plaintiffs respectfully request that this Court grant their Motion.

20
Respectfully submitted, 21
FOX & ROBERTSON, P.C. 22

23 24 Dated: November 16, 2004

By: /s/ Amy F. Robertson Amy F. Robertson Attorneys for Plaintiffs

25

26

27 16 Excerpts from the Azalde Deposition are attached as Exhibit 5 to the Second
28 Robertson Declaration.

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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654

9 Attorneys for Plaintiffs
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

13

FRANCIE E. MOELLER et al,

Case No. C 02 5849 MJJ ADR

14
15 v.

Plaintiffs,

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S CONDITIONAL CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

16

TACO BELL CORP.,

17

Defendant. 18

Date: December 7, 2004 Time: 9:30 a.m.

19

20

ISSUE TO BE DECIDED

21

Whether Defendant is entitled to partial summary judgment concerning dimensions of

22 20 corporate Taco Bell restaurants that were in compliance when surveyed.

23

FACTS

24

Plaintiffs bring this class action lawsuit alleging violations of Title III of the Americans

25 with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Unruh Civil Rights Act, Cal.

26 Civ. Code § 51 et seq. (“Unruh” or “the Unruh Act”), and/or the California Disabled Persons

27

28

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Case 3:02-cv-05849-PJH Document 137 Filed 11/16/2004 Page 2 of 7

1 Act, Cal. Civ. Code § 54 et seq. (the “CDPA”) in corporate-owned Taco Bell restaurants in

2 California.

3

The parties have stipulated to the dimensions of certain elements in 20 of those

4 restaurants. Plaintiffs have moved for summary judgment on a subset of those elements which

5 the stipulated dimensions demonstrate are out of compliance with applicable standards. (See

6 generally Pls.’ Mot. for Partial Summ. J.) In response, Defendant has submitted to this Court

7 two lists of dimensions relating to various elements at the 20 corporate restaurants: a list of

8 those dimensions that allegedly comply with the Department of Justice Standards for

9 Accessible Design (“DOJ Standards” or “DOJ Stds.”), 28 C.F.R. pt. 36, app. A (see McKaig

10 Decl. Ex. B); and the subset of the dimensions in McKaig Exhibit B that allegedly comply with

11 both the DOJ Standards and Title 24 of the California Regulatory Code (the “California

12 Standards” or “Cal. Stds.”). (See McKaig Decl. Ex. A.) With the exception of the dimensions

13 set forth in the charts attached as Exhibits 1 and 2 to the Third Declaration of Amy F.

14 Robertson in Opposition to Defendant’s Conditional Cross-Motion for Summary Judgment,

15 Plaintiffs agree that Defendant has accurately transcribed the dimensions from the survey

16 reports, and those dimensions were accurate on the dates each survey was taken.

17

Plaintiffs have demonstrated with respect to 11 of the restaurants at issue that

18 Defendant has repeatedly altered its restaurants in ways that violate access regulations. (See

19 Robertson Decl. Exs. 1, 3-7, 10-13, 15.) In addition, Defendant has provided evidence that its

20 restaurants change constantly, including changes that may render compliant dimensions

21 noncompliant. (See Decl. of Jaime deBeers ¶ 6; see also Def.’s Mot. for Modification of Class

22 Definition at 3; Def.’s Opp’n to Pls.’ Mot. for Partial Summ. J. and Conditional Cross Mot. for 23 Partial Summ. J. at 3.1)

24

25

26

27

1

This Court has discretion to consider statements made in Defendant’s brief as

28 judicial admissions. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988).

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1

ARGUMENT

2

THERE ARE GENUINE ISSUES OF MATERIAL FACT PRECLUDING

SUMMARY JUDGMENT FOR DEFENDANT.

3 Defendant has, for the most part,2 accurately transcribed various dimensions from the

4

survey forms and applied the DOJ and California Standards to them. According to its own

5

testimony, however, there are genuine issues of material fact concerning both whether these

6

dimensions will remain in compliance in the future, and whether they have been in compliance

7

for the entire class period. As such, the class will be entitled to an injunction covering these

8

dimensions, and individual class members may be entitled to damages.

9

In addition, while Defendant has shown that certain dimensions of various architectural

10

elements comply with applicable standards, it has not succeeded in demonstrating that any

11

particular element at any store is in compliance. Because Defendant has not demonstrated --

12

and will not be able to demonstrate -- that any particular dimension is no longer at issue in the

13

case, it is not entitled to summary judgment.

14

Plaintiffs seek an injunction in this case that (with respect to architectural elements)

15

(1) requires noncompliant elements to be brought into compliance, (2) requires compliant

16

elements to be maintained in compliance, and (3) requires future new construction and

17

alterations to be performed in a compliant manner. Plaintiffs do not seek an order that requires

18

Defendant to alter any element in its restaurants that is fully in compliance with applicable

19

statutes. Thus, not only are there genuine issues of material fact concerning the past and future

20

compliance of the dimensions in Exhibits A and B, but -- to the extent Defendant is merely

21

asking to be relieved from having to alter compliant elements -- it is asking for relief from an

22

injunction Plaintiffs have not requested.

23

A. Legal Standard.

24

In moving for summary judgment, “[t] moving party has the burden of demonstrating

25

the absence of a genuine issue of fact for trial. . . . If the moving party shows the absence of a

26

27

28

2

But see Third Robertson Decl. Exs. 1 and 2.

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Case 3:02-cv-05849-PJH Document 137 Filed 11/16/2004 Page 4 of 7

1 genuine issue of material fact, the non-moving party must go beyond the pleadings and ‘set

2 forth specific facts’ that show a genuine issue for trial.” Leisek v. Brightwood Corp., 278 F.3d

3 895, 898 (9th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

4

Plaintiffs here provide specific facts from the Declaration of Jaime deBeers,

5 Defendant’s briefs and the exhibits to the Robertson Declaration that demonstrate that genuine

6 issues remain for trial concerning the dimensions covered by Exhibits A and B.

7

B. There are Genuine Issues of Material Fact Concerning Whether The

Dimensions in Defendant’s Exhibits A and B Will Remain in Compliance

8

Through Future Changes & Alterations.

9

Defendant is required under Title 24 of the California Regulatory Code (“Cal. Stds.”)

10 and the ADA to comply with access regulations when it alters its restaurants,3 and it is also

11 required to maintain those features of facilities and equipment that are required to be readily

12 accessible to and usable by persons with disabilities. Moeller v. Taco Bell Corp., 220 F.R.D.

13 604, 606-07 (N.D. Cal. 2004) (citing 28 C.F.R. § 36.211 & Cal. Stds. § 1101B.3). Plaintiffs 14 have demonstrated -- with respect to 11 of the restaurants at issue4 -- and intend to demonstrate

15 with respect to many of the remainder, that Defendant has repeatedly altered its restaurants in

16 ways that violate access regulations, and has failed to maintain the accessibility of various

17 architectural elements. In addition, Defendant has repeatedly asserted that its restaurants

18 change constantly, including changes that may render compliant dimensions noncompliant.

19 (See supra at 2.)

20

This evidence would be sufficient for this Court to issue an injunction requiring

21 Defendant in the future to engage in alterations to, and to maintain, architectural elements in a

22 manner that complies with access regulations, and this would include any dimensions (such as

23 those in McKaig Exhibits A and B) that were in compliance on the date they were surveyed.

24 See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 132 (1969) (“In exercising

25 its equitable jurisdiction, ‘[a] federal court has broad power to restrain acts which are of the

26

27

3

42 U.S.C. § 12183(a)(2); Cal. Stds. (2002) § 1134B.2.

28

4

See Robertson Decl. Exs. 1, 3-7, 10-13, 15.

Case No. C 02 5849 MJJ ADR: Plaintiffs’ Opposition to Defendant’s Conditional Cross-motion for Partial Summary Judgment
-4-

Case 3:02-cv-05849-PJH Document 137 Filed 11/16/2004 Page 5 of 7

1 same type or class as unlawful acts which the court has found to have been committed or

2 whose commission in the future unless enjoined, may fairly be anticipated from the defendant’s

3 conduct in the past.’” (Citation omitted.)); Orantes-Hernandez v. Thornburgh, 919 F.2d 549,

4 564 (9th Cir. 1990) (same). Thus, although many of the dimensions in Exhibits A and B

5 currently comply with applicable standards, there are genuine issues appropriate for trial as to

6 whether Defendant will maintain these dimensions in compliance in the future.

7

C. There are Genuine Issues of Material Fact Concerning Whether The

Dimensions in Defendant’s Exhibits A and B Have Been In Compliance

8

Throughout the Class Period.

9

In this case, Plaintiffs seek damages on behalf of the following class:

10

All individuals with disabilities who use wheelchairs or electric scooters for mobility

who, at any time on or after December 17, 2001, were denied, or are currently being

11

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

facilities, privileges, advantages, or accommodations of California Taco Bell corporate

12

restaurants.

13 Moeller, 220 F.R.D. at 613-14. Based on Defendant’s repeated assertions that its restaurants

14 change constantly, see supra at 2, dimensions in compliance when surveyed may have been out

15 of compliance at some time between December 17, 2001 and the time of the survey. A class

16 member who was aggrieved by such an inaccessible dimension would be entitled to damages.

17 As such, there are genuine issues of material fact concerning whether the dimensions covered

18 by Exhibits A and B have been in compliance throughout the class period.

19

D. Defendant’s Motion Does Not Establish That Any Element is in

Compliance with Applicable Standards.

20

Defendant offers two lists of dimensions of various elements in 20 of its restaurants that

21

complied with applicable standards on the day they were measured. Dimensions, however, are

22

different from elements. Each element at issue in this litigation has a number of different

23

dimensions that are relevant to compliance with applicable standards. Compare DOJ Standards

24

§ 3.5 (defining “element” to include “curb ramp”) with id. § 4.7 (providing the measurements

25

of at least eight dimensions necessary for a curb ramp to comply with the DOJ Standards). The

26

fact that one dimension of an element is in compliance does not render the entire element

27

compliant. On the other hand, the fact that one dimension is out of compliance renders the

28

Case No. C 02 5849 MJJ ADR: Plaintiffs’ Opposition to Defendant’s Conditional Cross-motion for Partial Summary Judgment
-5-

Case 3:02-cv-05849-PJH Document 137 Filed 11/16/2004 Page 6 of 7

1 entire element out of compliance and therefore in need of remediation. As such, the

2 dimensions in Defendant’s lists do not establish that any particular element is in compliance,

3 and thus do not excuse Taco Bell from its duty to remedy any such noncompliant elements.

4

For example, Defendant lists a number of accessible parking spaces that are of the

5 proper length. The fact that an accessible parking space is the proper length, however, does not

6 make it compliant if it is too narrow; the space will still need to be restriped. The fact that a

7 ramp has the proper surface does not make it compliant if it has too much cross slope; the ramp

8 will still need to be altered to remove the cross slope. The fact that a door is of the proper

9 width does not make it compliant if it is too heavy to open; the door will still have to be

10 adjusted to provide the proper weight.

11

Similarly, a compliant dimension may become academic in light of the need to effect a

12 solution to a noncompliant dimension. For example, a restroom soap or paper towel dispenser

13 that is at the correct height but has no clear floor space will still have to be moved, making its

14 original height academic. A toilet flush handle that is at the correct height but in the wrong

15 location will still have to be moved, again, making its original height academic. Where one

16 lane of a queue line is too narrow, the entire set of rails may need to be rearranged to provide a

17 fully compliant path.

18

Ultimately, Defendant’s evidence does not succeed in demonstrating that any particular

19 element at any store is in compliance with the DOJ or California Standards.

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR: Plaintiffs’ Opposition to Defendant’s Conditional Cross-motion for Partial Summary Judgment
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Case 3:02-cv-05849-PJH Document 137 Filed 11/16/2004 Page 7 of 7

1

CONCLUSION

2

Plaintiffs have demonstrated that there are genuine issues of material fact remaining for

3 trial concerning the dimensions listed in Exhibits A and B to the McKaig Declaration. As

4 such, Plaintiffs respectfully request that this Court deny Defendant’s Conditional Cross-Motion

5 for Partial Summary Judgment.

6

7

Respectfully submitted,

8

FOX & ROBERTSON, P.C.

9

10

By: /s/ Amy F. Robertson

11

Amy F. Robertson, pro hac vice

Timothy P. Fox, Cal. Bar No. 157750

12

910 - 16th Street

Suite 610

13

Denver, Colorado 80202

Tel: (303) 595-9700

14

Fax: (303) 595-9705

15 November 16, 2004

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR: Plaintiffs’ Opposition to Defendant’s Conditional Cross-motion for Partial Summary Judgment
-7-

 
 Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 1 of 7

1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400
3 Los Angeles, California 90071-3144 Telephone: (213) 687-5000
4 Facsimile: (213) 687-5600
Attorneys for Defendant TACO BELL CORP. 6
7

8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

ii FRANCIE B. MOELLER, et al.

)

)

12

Plaintiffs,

)

)

13

v.

)

)

14 TACO BELL CORP.,

)

)

15

Defendant.

)

)

16 ___________________________________)

Case No. C 025849 MJJ ADR
DEFENDANTS REPLY BRIEF 1N SUPPORT OF CONDITIONAL CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: December 7, 2004 Time: 9:30a.m. Courtroom: 11

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANT'S REPLY BRIEF IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 2 of 7

1 JEFFREY H. DASTEEL (State Bar No. 110405)
T. JEAN MOONEY (State Bar NO. 211747) 2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue, Suite 3400 3 Los Angeles, California 90071-3144
Telephone: (213) 687-5000 4 Facsimile: (213) 687-5600

5 Attorneys for Defendant
TACO BELL CORP. 6

7

8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

10 FRANCIE E. MOELLER, et al.

)

)

11

Plaintiffs,

)

12

v.

) )

)

13 TACO BELL CORP.,

)

14

)

Defendant.

)

)

____________________________________)

Case No. C 025849 MJJ ADR
DEFENDANT'S REPLY BRIEF N SUPPORT OF CONDITIONAL CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
Date: December 7, 2004 Time: 9:30a.m. Courtroom: 11

16

ISSUES TO BE DECIDED

17

See Opposition to Plaintiffs' Partial Motion for Summary Judgment and Conditional

18 Cross Motion for Partial Summary Judgment at pages 1 and 2.

19

INTRODUCTION

20

This Conditional Cross Motion for Partial Summary Judgment concerns over 2,500

21 accessibility elements that the undisputed facts establish are in compliance with the ADAAG and

22 Title 24. Notwithstanding that compliance is undisputed, this Cross Motion is conditional because

23 any summary judgment motion concerning compliance of particular elements at the 220 company-

24 owned Taco Bell restaurants is premature.

25

Although Plaintiffs' claims are premised on the alleged existence of company-wide

26 discriminatory policies, Plaintiffs have insisted that the Court-appointed Special Master survey

27 over 132,000 individual elements at 220 corporate-owned Taco Bell Restaurants (the

28

DEFENDANT'S REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849 MJJADR
1

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 3 of 7

1 "Restaurants"). To date, the Special Master has surveyed approximately 7,000 individual elements

2 as part of a pilot program surveying 20 Restaurants in California (the "Pilot Stores"). The parties 3 agreed that following the survey of all 220 Restaurants in June 2005 they will meet and confer 4 regarding the results in an effort to reach agreement on which elements at which Restaurants need 5 to be modified. The survey and meet and confer process was intended to eliminate discovery, 6 reduce unnecesary litigation, and make efficient use of this Court's time and resources as to 7 elements over which there remains a disagreement after the meet and confer process. In light of 8 the parties' cooperation to date, Taco Bell had expected this Court would be called on to decide

9 very few, if any, disputes.

10

Notwithstanding the Court-approved procedure for discovery and adjudication of

11 Plaintiffs' claims regarding the individual elements at each Restaurant, Plaintiffs brought a Motion

12 for Partial Summary Judgment ("Plaintiffs' Motion") seeking a piecemeal determination that 494 13 elements (of over 7,000 elements surveyed) do not comply with federal and state accessibility 14 statutes. Plaintiffs' Motion requires the Court and the parties to litigate the very matters the meet 15 and confer process is designed to resolve. Taco Bell brought its Cross Motion as to over 2,500 of 16 the 7,000 surveyed elements in the event the Court determines that Plaintiffs' Motion is not

17 premature.

18

Plaintiffs are now in the untenable position of arguing on the one hand they are

19 entitled to partial summary judgment as to Taco Bell's "liability" for 497 elements at 19 of the 20

20 surveyed Restaurants, while Taco Bell is not entitled to the same determination as to 2,551

21 elements at those same Restaurants.' Plaintiffs offer two arguments in support of their self-

22 contradicting position, both of which fail as a matter of law.

23

First, Plaintiffs argue there are material issues of genuine fact as to these compliant

24 elements because, due to changeability in the elements, finding a dimension in compliance on the

25 date of the survey does not establish whether that dimension was in compliance during the class

26 period or will be in the future. $Opp'n to Cross-Motion at p. 3. However, changeability applies

27 '

Taco Bell submits concurrently herewith the declaration of T. Jean Mooney with amended

Exhibits A and B, which correct errors identified by Plaintiffs in their Opposition to the Cross

28 Motion.

DEFENDANT'S REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
2

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 4 of 7

1 with equal force to Plaintiffs' Motion for partial summary judgment. If partial summary judgment

2 is appropriate for changeable elements that were non-compliant on the date of the Special Master's

3 visit, partial summary judgment also is appropriate for elements that were compliant on the date of

4 the Special Master's visit.

5

Second, Plaintiffs argue that Taco Bell is seeking relief from an injunction that

6 Plaintiffs have not yet requested. j4 However, Plaintiffs have insisted that over 600 elements

7 at every corporate-owned Taco Bell Restaurant be surveyed to detennine compliance or non-

8 compliance with applicable statutes, resulting in the survey of over 130,000 elements. Plaintiffs 9 cannot be heard to claim that only those elements that turn out to be non-compliant are relevant.

10 This "heads I win, tales you lose" approach to litigation does not work, especially if, as has proven

11 to be the case for the 20 pilot Restaurants, the vast majority of accessibility elements at Taco Bell

12 Restaurants comply with ADAAG and Title 24. See, e.g., Disabled Rights Action Comm. v.

13 Fremont St. Experience LLC, 44 Fed. Appx. 100, 102 (9th Cir. 2002), cert. denied, 537 U.S. 1107 14 (2003) (minor tecimical violations "in the face of numerous instances of compliance.. .. cannot be

15 construed to show a discriminatory pattern, practice or policy.").
16 II. STATEMENT OF FACTS

17

See Taco Bell's Opposition to Plaintiffs' Partial Motion for Summary Judgment and

18 Conditional Cross Motion for Partial Summary Judgment at pages 8 through 12.

19 II. ARGUMENT

20

A. Plaintiffs Agree With Taco Bell That Elements Chan2e Over Time.

21

The thrust of Plaintiffs' Opposition is that summary judgment is precluded because

22 "there are genuine issues of material fact concerning whether the dimensions. .. have been [or will

23 remain] in compliance." Opp'n to Cross-Motion p. 5. But the reverse is also true, and this is

24 exactly the point Taco Bell made in its opposition to Plaintiffs' Motion.2 If elements at the Taco

25 2 An additional question of fact is the existence of construction tolerances. Section 3.2 of
26 ADAAG states that "all dimensions are subject to conventional building industry tolerances for field conditions." This section means that the standards set forth in ADAAG do not strictly give
27 rise to liability — an element in technical violation of an ADAAG standard may in fact be compliant if pennitted variations from given dimensions, locations, or alignments, based on field, material,
28 manufacturing, and workmanship conditions are commonly understood and accepted in the
DEFENDANT'S REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849MJJ ADR
3

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 5 of 7

1 Bell Restaurants are subject to changes over time (and Plaintiffs agree that they are), a
2 determination that an element is out of compliance on one date will not dictate whetherthat same 3 element is out of compliance on another date. Plaintiffs admit that this is true, but insist that a 4 liability determination can somehow be made as to the elements they have identified as non-

5 compliant. If compliance on a single day cannot be determinative of compliance throughout the 6 class period, then non-compliance on a single day cannot be determinative of a violation 7 throughout the class period. If partial summary judgment cannot be granted for compliance, then it

8 cannot be granted for non-compliance.

9

B. Plaintiffs' Claim That A Determination of "Liability" Cannot Be Made Without Consideration of Whether Plaintiffs May Be Entitled To Dama2es or

10

Injunctive Relief.

11

In moving for partial summary judgment on "liability" as to elements that were not

12 in compliance on the date of the Special Master's site visit, Plaintiffs attempted to divorce a finding

13 of "liability" from any requirement to establish a right to the remedies theywill ultimately seek, 14 namely, damages and injunctive relief. Apparently forgetting the argumentsin their own Motion, 15 Plaintiffs now claim that Taco Bell is not entitled to partial summary judgment as toelements that 16 were in compliance on the date of the Special Master's site visit without a determination as to 17 whether Plaintiffs ultimately will be entitled to injunctive relief or damages as to these compliant 18 elements. Opp'n to Cross Motion p. 4-5. Plaintiffs thus admit that a determinationof "liability" 19 based on the stipulated dimensions of the Special Master is meaningless unless the Court also 20 considers and rules on the issues of law and fact required to support injunctive relief or damages — 21 something not at issue in Plaintiffs' Motion or in Taco Bell's CrossMotion.3

22

building industry.

Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., No. 99-109-

23 CIV, 2001 U.S. Dist. LEXIS 6660 (S.D. Fla. May 2, 2001) (granting defendant's partial summary

judgment for elements in technical violation of ADAAG standards but in compliance with accepted

24

construction construction

tolerances). It is
tolerances have not

premature for this Court
been considered, and when

to grant
technical

summary judgment when
violations cited by Plaintiffs

25 may fall within accepted construction tolerances.

26

To establish entitlement to injunctive relief, a class member must, at the least,establish that

"he faces a real or immediate threat of substantial or irreparable injury.") Midgett v. Tn-County

27 Metro. Trans., 254 F.3d 846, 850 (9th Cir. 2001). To establish entitlement to damages, Plaintiffs

must show that he or she (1) has a qualifying disability, (2) visited a Taco Bell company-owned

28 restaurant in California during the class period, (3) encountered a non-compliant accessibility

DEFENDANT'S REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT

Case No. C 02 5849 MJJADR

4

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 6 of 7

1

Once again, Plaintiffs cannot have it all ways at once. If Plaintiffs' premature

2 motion can be granted, so can Taco Bell's conditional Cross Motion. If Taco Bell's conditional

3 Cross Motion cannot be granted, neither can Plaintiffs' Motion.

4

C. A Determination of Liability, If One Can Be Made, Can Be Made For Elements

In Compliance As Well As Elements Not In Compliance.

5

Plaintiffs make two final arguments for why summary judgment can only be
6
rendered as to dimensions that do not comply with an applicable standard and not dimensions that
7

do comply with those same standards. Neither argument works.

8

First, without citing any authority, Plaintiffs argue that "the fact that one dimension 9

is out of compliance renders the entire element out of compliance." Opp'n to Cross-Motion pp. 5-

10

6. Plaintiffs cannot and do not cite any authority for the proposition that if one dimension is out of

11

compliance, other dimensions that were in compliance are deemed to be out of compliance. For

12

example, if an accessible parking space is 10 inches too narrow, and the required depth, slope and 13

location of the space are fully in compliance, the one non-compliant element does not somehow 14

render all the other elements out of compliance. In the end, Taco Bell expects to show, as it has 15

with the 20 Pilot Restaurants, that the overwhelming number of accessibility elements at Taco Bell 16
Restaurants are in compliance with ADAAG and Title 24. Overwhelming compliance is highly

17

relevant both to damages and injunctive relief. 18

Second, Plaintiffs argue that granting summary judgment on compliant elements 19

somehow is inappropriate because it amounts to an attempt to get relief from remedies Plaintiffs 20

have not requested.
21

Opp'n to Cross-Motion p. 3. This argument is belied by the remainder of

Plaintiffs' opposition, which argues that 1) compliant elements may not remain in compliance, thus 22

requiring injunctive relief, and 2) compliant dimensions can still give rise to damages claims. See 23

pp. 4 & 5. There is no logical reconciliation of these arguments. Moreover, rather than focus

24

on a narrow set of alleged non-compliant elements, Plaintiffs have placed in issue every one of 25
more than 600 elements at Taco Bell's 220 company-owned Restaurants. The consequence of 26

placing in issue every single accessibility element in every Restaurant is that Plaintiffs take the risk 27

element during the visit, and (4) was hindered in his or her use or enjoyment of the restaurant by 28 the non-compliant element.

DEFENDANTS REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
5

Case 3:02-cv-05849-PJH Document 141 Filed 11/19/2004 Page 7 of 7

1 they will lose on the merits of many or most of those elements. It is indeed significant that, at least 2 as to the first 20 Restaurants surveyed, the vast majority of surveyed elements are in compliance —
3 something Taco Bell will be entitled to have recorded in a judgment at some point in these

4 proceedings.

5 III. CONCLUSION

6

As set forth in Taco Bell's Opposition to Plaintiffs' Motion, any motionfor summary

7 judgment is premature at this time and should be denied by the Court. Such motions run counter to

8 the express agreement of the parties, and if granted, encourage piecemeal resolution of the claims

9 for injunctive relief. In addition, as recognized by Plaintiff, the existence of several questions of

10 material fact, not the least of which is the dynamic nature of each element, make granting summary

11 judgment as to any element — compliant or non-compliant — inappropriate. However, if the Court 12 believes partial summary judgment is appropriate for Plaintiffs, then for the very same reasons

13 partial summary judgment is appropriate for Taco Bell. For all the foregoing reasons, Taco Bell

14 requests that the Court deny Plaintiffs' Motion for partial summary judgment, oralternatively, grant

15 Taco Bell's conditional Cross Motion for partial summary judgment.

16
17 Dated: November 19, 2004

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

18 19
By

Bell Corp.

DEFENDANTS REPLY BRIEF IN SUPPORT OF CONDITIONAL CROSS MOTION FOR SUMMARY JUDGMENT
Case No. C 02 5849 MJJ ADR
6

 
 Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page1 of 7

1 JEFFREY H. DASTEEL (State Bar No. 110405) K. LUCY ATWOOD (State Bar No. 222745)
2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400
3 Los Angeles, California 90071-3144
Telephone: (213) 687-5000
4 Facsimile: (213) 687-5600

5 Attorneys for Defendant TACO BELL CORP.
6

7

8

THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 FRANCIE E. MOELLER, et al.

12

Plaintiffs,

13

v.

14 TACO BELL CORP.,

15

Defendant.

16

) Case No. C 02 5849 MJJ ADR
) ) FIRST AMENDED ANSWER TO
) PLAINTIFFS' FIRST AMENDED CLASS
) ACTION COMPLAINT
) ) DEMAND FOR JURY TRIAL ) ) )

17

Defendant Taco Bell Corp. ("Taco Bell"), by its attorneys, in answer to Plaintiffs'

18 First Amended Class Action Complaint, admits, denies and alleges as follows:

19

ANSWER TO INTRODUCTORY ALLEGATIONS

20

1. Denied.

21

2. Denied.

22

3. Denied.

23

ANSWER TO JURISDICTION AND VENUE ALLEGATIONS

24

4. Denied.

25

5. Denied.

26

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS' 28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C02 5849 MJJ ADR
1

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page2 of 7

1

ANSWER TO INTRA-DISTRICT ASSIGNMENT ALLEGATIONS

2

6. Admitted that the allegations in the Complaint relate to alleged events in Sonoma,

3 Contra Costa and/or Marin counties that are within the San Francisco and Oakland Divisions of

4 this Court and denied that Taco Bell has violated any of plaintiffs' rights upon which this action

5 can be based.

6

ANSWER TO ALLEGATIONS CONCERNING PARTIES

7

7. Denied for lack of information.

8

8. Denied for lack of information.

9

9. Denied for lack of information.

10

10. Denied for lack of information.

11

II. Denied for lack of information.

12

12. Denied for lack of information.

13

13. Denied for lack of information.

14

14. Denied for lack of information.

15

15. Denied for lack of information.

16

16. Denied for lack of information.

17

17. Denied for lack of information.

18

18. Denied for lack of information.

19

19. Admitted.

20

ANSWER TO CLASS ACTION ALLEGATION

21

20. Admitted that Plaintiffs seek to maintain this action as a class action; otherwise denied.

22

21. Denied.

23

22. Denied.

24

23. Denied.

25

24. Denied for lack of information.

26

25. Denied.

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C02 5849 MJJ ADR 2

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page3 of 7

1 26. Denied.

2 27. Denied.

3 28. Denied.

4

ANSWER TO STATEMENT OF FACTS

5 29. Denied for lack of information.

6 30. Admitted.

7 31. Denied.

8 32. Denied.

9 33. Denied for lack of information.

10

34. Admitted that Taco Bell owns and operates a restaurant located at 40 San Pablo Towne

11 Center, Richmond, California; otherwise denied.

12 35. Denied.

13

36. Denied.

14 37. Denied for lack of information.

15 38. Admitted.

16

39. Denied.

17 40. Denied.

18 41. Denied for lack of information.

19 42. Admitted.

20 43. Denied.

21

44. Denied.

22 45. Denied.

23

46. Denied.

24 47. Denied.

25 48. Admitted.

26 49. Denied for lack of information.

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C 02 5849 MJJ ADR
3

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page4 of 7

1

ANSWER TO FIRST CLAIM FOR RELIEF

2 50. Taco Bell incorporates its responses to the allegations of paragraphs 1 through 49

3 above.

4 51. Taco Bell admits that Plaintiffs correctly quote from among the many provisions of the

5 ADA and that this allegation of the Complaint merely states a provision of the law, to which no

6 response is required.

7

52. Admitted.

8 53. Admitted.

9 54. Denied.

10 55. Denied.

11

56. Denied.

12

57. Denied.

13

ANSWER TO SECOND CLAIM FOR RELIEF

14 58. Taco Bell incorporates its responses to the allegations of paragraphs 1 through 57

15 above.

16

59. Admitted.

17

60. Denied.

18 61. Plaintiffs merely state legal conclusions which require no response and the provisions of

19 the Unruh Act speak for themselves.

20

62. Denied.

21

63. Denied.

22 64. Denied.

23

65. Denied.

24

ANSWER TO THIRD CLAIM FOR RELIEF

25 66. Taco Bell incorporates its responses to the allegations of paragraphs 1 through 65

26 above.

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C 02 5849 MJJ ADR 4

!! I

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page5 of 7

1 67. Admitted.

2 68. Denied.

3

69. Plaintiffs merely state legal conclusions which require no response and the provisions of

4 the California Disabled Persons Act speak for themselves.

5 70. Denied.

6 71. Denied.

7 72. Denied.

8 73. Denied.

9

ANSWER TO ALL ALLEGATIONS

10 74. Each and every allegation not expressly admitted above is denied.

11

FIRST DEFENSE

12

The complaint fails to state a claim against Taco Bell upon which relief can be

13 granted. 14

SECOND DEFENSE·

15

Plaintiffs' claims are barred in whole or in part by the applicable statute or statutes

16 of limitations.

17

THIRD DEFENSE

18

This Court is without jurisdiction concerning any Taco Bell facility in California not

19 owned and operated by Taco Bell Corp.

20

FOURTH DEFENSE

21

The Complaint does not satisfy the requirements of Fed. R. Civ. P. 23(a) and 23(b).

22

FIFTH DEFENSE

23

To the extent Plaintiffs' claims are alleged to apply to Taco Bell Corp.'s existing

24 facilities, the removal of the barriers sought by Plaintiffs is not readily achievable.

25

26

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C02 5849 MJJ ADR
5

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page6 of 7

1

SIXTH DEFENSE

2

To the extent, if any, the Defendant has undertaken alterations to its places of public

3 accommodation, the provision of an accessible path of travel is disproportionate in cost and scope

4 to Defendant's alterations.

5

SEVENTH DEFENSE

6

The Defendant's places of public accommodation are accessible to the maximum

7 extent feasible.

8

EIGHTH DEFENSE

9

Taco Bell has made good faith efforts to comply with the ADA, the Unruh Act, and

10 the Colorado Disabled Persons Act, including providing appropriate alternative access.

11

NINTH DEFENSE

12

To the extent that Taco Bell has failed to comply with any ofthe regulations or

13 guidelines under the ADA or the Unruh Act, such noncompliance was inadvertent and is de

14 minimus.

15

TENTH DEFENSE

16

Plaintiffs have failed to mitigate their damages, if any.

17

ELEVENTH DEFENSE

18

Plaintiffs' claims under the California Disabled Persons Act is barred to the extent

19 that it interferes with Taco Bell's compliance with laws and regulations that are equally applicable

20 to all persons.

21

TWELFTH DEFENSE

22

Plaintiffs' claims under the California Disabled Persons Act is barred by virtue of

23 Taco Bell's compliance with the ADA and the Unruh Act.

24

THIRTEENTH DEFENSE

25

Plaintiffs may not recover damages under both the Unruh Act and the California

26 Disabled Persons Act.

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C 02 5849 MJJ ADR
6

Case4:02-cv-05849-PJH Document155 Filed12/21/04 Page7 of 7

1

FOURTEENTH DEFENSE

2

The imposition of statutory minimum damages in this matter would violate

3 Defendant's Eighth Amendment protection against excessive fines in violation of the California

4 Constitution and the United States Constitution.

5

FIFTEENTH DEFENSE

6

The imposition of punitive damages in this matter would violate Defendant's right to

7 due process oflaw in violation ofthe California Constitution and the United States Constitution.

8

SIXTEENTH DEFENSE

9

Taco Bell is not legally responsible for property that is not within Taco Bell's

10 possession, custody or control.

11

WHEREFORE, Defendant Taco Bell Corp. prays that the Court enter judgment

12 dismissing Plaintiffs' Complaint and award Taco Bell its costs, attorney's fees, and such other

13 relief as may be proper.

14 15 DATED: October 19, 2004

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

16

17

18

19
20

21

22

23

24

25
26

27
TACO BELL'S FIRST AMENDED ANSWER TO PLAINTIFFS'
28 FIRST AMENDED CLASS ACTION COMPLAINT
Case No. C 02 5849 MJJ ADR
7

 
 Case 3:02-cv-05849-PJH Document 164 Filed 02/28/2005 Page 1 of 21

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 Email: arob@foxrob.com
6 LAWSON LAW OFFICES Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd. Oakland, CA 94610
8 Tel: (510) 419-0940 Fax: (510) 419-0948
9 Email: tony@lawsonlawoffices.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Email: bs@impactfund.org

10 Attorneys for Plaintiffs
11

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 15

FRANCIE E. MOELLER et al,

16 Plaintiffs,

Case No. C 02 5849 MJJ ADR

17 v.
18 TACO BELL CORP.,

PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT

19 Defendant.

Date: June 3, 2005

20

Time: 9:30 a.m.

21

22

23

24

25

26

27 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Revised Motion for Partial Summary Judgment
28

Case 3:02-cv-05849-PJH Document 164 Filed 02/28/2005 Page 2 of 21

1

TABLE OF CONTENTS

2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Relief Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4 Points and Authorities in Support of Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7 Procedural Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

9 A. Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

1. Statutory and Regulatory Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

11

2. The Development of the DOJ Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

12 B. The Unruh Act and the California Disabled Persons Act . . . . . . . . . . . . . . . . . . . . . . . 7

13

1. Statutory and Regulatory Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14

2. The Development of the California Standards . . . . . . . . . . . . . . . . . . . . . . . . . . 8

15 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

16 I.
17 II. 18

There is No “De Minimis” Exception to Compliance with DOJ or California Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Equivalent Facilitation Provision Was Meant to Encourage Alternative Designs and Technologies, Not to Excuse Violations . . . . . . . . . . . . . . . 12

19 III. 20

Defendant’s Proposed Defenses Would Improperly Require This Court To Substitute its Judgment for that of Responsible Regulatory Agencies and Rewrite the Standards . . . . . . . . . . . . . . . . . . . 13

21 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

22

23

24

25

26

27

28 Case No. C 02 5849 MJJ ADR
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Case 3:02-cv-05849-PJH Document 164 Filed 02/28/2005 Page 3 of 21

1

TABLE OF AUTHORITIES

2

Cases

3 Ability Center of Greater Toledo v. Sandusky,

133 F. Supp. 2d 589 (N.D. Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4

Bragdon v. Abbott,

5

524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6 Disabled Rights Action Comm. v. Las Vegas Events, Inc.,

375 F.3d 861 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

7

Donald v. Sacramento Valley Bank,

8

260 Cal. Rptr. 49 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

9 Indep. Living Res. v. Oregon Arena Corp.,

982 F. Supp. 698 (D. Or. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

10

Long v. Coast Resorts, Inc.,

11

267 F.3d 918, 921-24 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11, 12

12 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

13

People ex rel. Deukmejian v. CHE, Inc.,

14

197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

15 Plastic Pipe and Fitting Ass’n. v Calif. Building Standards Comm’n,

22 Cal. Rptr.3d 393 (Cal. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

16

United States v. AMC Entm’t, Inc.,

17

245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12-13

18 United States v. National Amusements, Inc.,
180 F. Supp. 2d 251 (D. Mass. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 19

Statutes 20

29 U.S.C. § 792(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 21

Architectural Barriers Act, 42 U.S.C. §§ 4151 - 4157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 22

Americans with Disabilities Act

23

42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 11

24

42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

42 U.S.C. § 12186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14, 15

25

42 U.S.C. § 12204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

26 Unruh Civil Rights Act, Cal. Civ. Code § 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

27

28 Case No. C 02 5849 MJJ ADR
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1 California Disabled Persons Act

Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2

Cal. Civ. Code § 54.1(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3 Cal. Gov’t Code § 4450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 14

4 Cal. Gov’t Code § 4451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

5 Cal. Gov’t Code § 4452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 15

6 California Administrative Procedures Act

Cal. Gov’t Code § 11346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7

Cal. Gov’t Code § 11346.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cal. Gov’t Code § 11346.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8

Cal. Gov’t Code § 11346.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

9 California Building Standards Law

Cal. Health & Safety Code § 18921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

10

Cal. Health & Safety Code § 18926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cal. Health & Safety Code § 18929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

11

Cal. Health & Safety Code § 18930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12 Cal. Health & Safety Code § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

13 Cal. Health & Safety Code § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

14 H. Rep. 101-485, pt. 2, at 119, reprinted in 1990 U.S.C.C.A.N. 402 . . . . . . . . . . . . . . . . . . . 12

15

Regulations

16 28 C.F.R. § 36.401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

17 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 Americans with Disabilities Act Accessibility Guidelines, 36 C.F.R. pt. 1191, app A . . . . . 6, 7

19 Dep’t of Justice, Standards for Accessible Design, 28 C.F.R. pt 36, app. A . . . . . . . . . . passim

§ 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

20

§ 2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

§ 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

21

§ 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

§ 4.33.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

22

Minimum Guidelines and Requirements for Accessible Design, 36 C.F.R. pt 1190 . . . . . . 6, 7

23

§ 1190.6(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

24 47 Fed. Reg. 33,962 (Aug. 4, 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

25 56 Fed. Reg. 2296 (Jan. 22, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

26 56 Fed. Reg. 35,408 (July 26, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 12

27 56 Fed. Reg. 35,544 (July 26, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

28 Case No. C 02 5849 MJJ ADR
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1 69 Fed. Reg. 44,084 (July 23, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 69 Fed. Reg. 58,768 (Sept. 30, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3 Cal. Code Regs, tit. 24 (1981) § 2-106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4 Cal. Code Regs, tit. 24 (1984) § 2-106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 Cal. Code Regs, tit. 24 (1987) § 2-111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

6 Cal. Code Regs, tit. 24 (1989) § 111A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

7 Cal. Code Regs, tit. 24 (1994) § 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

8 Cal. Code Regs, tit. 24 (1999) § 101.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

9 Cal. Code Regs, tit. 24 (2001)

§ 4-355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

10

§ 101.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

§ 1101B.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

11

§ 1104B.5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12

Miscellaneous

13 American National Standards Institute, Inc., ANSI A117.1-1961: American National Standard Specifications for Making Buildings and Facilities
14 Accessible to and Usable by, The Physically Handicapped . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

15 American National Standards Institute, Inc., ANSI A117.1 (1980) . . . . . . . . . . . . . . . . . . . . . 6

16 American National Standards Institute, Inc., ANSI A117.1 (1986)

§ 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

17

§ 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 Architectural and Transportation Barriers Compliance Board, ADAAG Manual: a Guide to the Americans with Disabilities
19 Act Accessibility Guidelines (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

20 Int’l Conference of Bldg. Officials, Uniform Building Code (1994) . . . . . . . . . . . . . . . . . . . . 10

21
Lucy Harber, Ronald Mace & Peter Orleans, UFAS Retrofit Guide: 22 Accessibility Modifications for Existing Buildings 10 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . 5

23 San Francisco Mayor’s Office on Disability, “The History, Overview and Application of State and Federal Disability Access Laws
24 and Regulations: History Background,” at http://www.sfgov.org/site/ sfmod_page.asp?id=5722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
25
Taco Bell Corp., “Interesting Facts About Taco Bell,” http://www.tacobell.com/ 26 ourcompany/facts.htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

27

28 Case No. C 02 5849 MJJ ADR
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Case 3:02-cv-05849-PJH Document 164 Filed 02/28/2005 Page 6 of 21

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 Email: arob@foxrob.com
6 LAWSON LAW OFFICES Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd. Oakland, CA 94610
8 Tel: (510) 419-0940 Fax: (510) 419-0948
9 Email: tony@lawsonlawoffices.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Email: bs@impactfund.org

10 Attorneys for Plaintiffs
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 14
FRANCIE E. MOELLER et al,

15

16

Plaintiffs,

Case No. C 02 5849 MJJ ADR

17 v.

PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY

18 TACO BELL CORP.,

JUDGMENT

19

Defendant.

Date: June 3, 2005

20

Time: 9:30 a.m.

21
NOTICE 22
On June 3, 2005, at 9:30 a.m., or as soon thereafter as this motion may be heard, before 23
the Honorable Martin J. Jenkins, Plaintiffs will, and hereby do, move for an order granting 24
partial summary judgment in their favor in the above-captioned action. This motion is based 25
on this Notice of Motion, and all accompanying attachments hereto. 26

27

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1

RELIEF SOUGHT

2

Plaintiffs seek a ruling that Taco Bell’s violations of dimensional standards required

3 under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., the Unruh

4 Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh” or “the Unruh Act”), and the California

5 Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the “CDPA”), may only be justified as

6 “conventional building industry tolerances for field conditions,” and may not be excused as “de

7 minimis” or analyzed as “equivalent facilitation.”

8

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

9

ISSUES TO BE DECIDED

10

Whether Defendant may excuse deviations from applicable standards -- beyond those

11 that may properly be justified as “conventional building industry tolerances for field

12 conditions” -- on the grounds that such deviations are “de minimis” or constitute “equivalent

13 facilitation.”

14

SUMMARY OF ARGUMENT

15

Plaintiffs -- a class of individuals who use wheelchairs or scooters for mobility -- bring

16 this lawsuit against Defendant Taco Bell Corporation (“Taco Bell”) under the ADA, Unruh and

17 the CDPA, alleging that Taco Bell is in violation of these statutes because its corporate-owned

18 restaurants in California contain architectural barriers to class members. These statutes all

19 require compliance with certain minimum dimensional standards in buildings built or altered

20 after certain dates. Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606-07 (N.D. Cal. 2004). The

21 question before the Court is how to address small deviations from these standards.

22

Both the ADA and California law contain the answer: “All dimensions are subject to

23 conventional building industry tolerances for field conditions.” Department of Justice

24 Standards for Accessible Design (“DOJ Standards” or “DOJ Stds.”), 28 C.F.R. pt. 36, app A,

25 § 3.2; Cal. Code Regs., tit. 24 (“California Standards or “Cal. Stds.”) § 1101B.4 (2001) (same).

26 Under these provisions, if a dimension falls slightly short of the required standard due to the

27 realities of construction or installation, it is not considered a violation.

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1

Defendant has indicated that it will assert two further defenses for noncompliant

2 dimensions -- presumably beyond deviations that may properly be characterized as “tolerances”

3 or the argument would not be necessary -- by arguing that they may be ignored as “de minimis”

4 or justified as “equivalent facilitation.” The former defeats the purpose of establishing

5 minimum standards and is contrary to Ninth Circuit precedent; the latter represents an improper

6 application of an exception intended to encourage creative design solutions, not to excuse a

7 failure to comply.

8

Furthermore, Defendant’s asserted “de minimis” and “equivalent facilitation” defenses

9 will require the Court to revisit technical standards that are based on 30 years of research and

10 development by, among others, the American National Standards Institute (“ANSI”), the

11 federal Architectural and Transportation Barriers Compliance Board (“Access Board”), the

12 federal Department of Justice (“DOJ”), the California Building Standards Commission

13 (“BSC”), and the California State Architect. Defendant is thus ultimately asking this Court to

14 ignore the carefully crafted standards developed over many years by these standards-setting and

15 regulatory bodies, and instead to evaluate afresh evidence relating to various dimensional

16 standards, so as to endorse standards weaker than the standards adopted by these bodies. This

17 is contrary to the language and intent of the ADA and California access laws.

18

PROCEDURAL STATUS

19

On October 19, 2004, Plaintiffs moved for summary judgment with respect to certain

20 elements at 19 Taco Bell restaurants. Defendant opposed the motion, asserting various

21 defenses. On December 8, 2004, the Court convened a telephone status conference with the

22 parties to discuss this motion, in which the Court requested that the parties meet and confer

23 concerning the compliance status of the elements covered by Plaintiffs’ motion and the legal

24 questions raised by the motion and Defendant’s opposition.

25

Following the telephone status conference, the parties exchanged correspondence

26 concerning the elements and legal questions at issue in Plaintiffs’ motion. They were able to

27 come to resolution on most of the physical elements covered by the motion, but disagreed on a

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1 number of legal issues. In their Joint Status Conference Statement, filed February 1, 2005, the

2 parties identified the legal issues on which they were unable to reach agreement, and requested

3 the Court’s guidance on those issues. At the February 8, 2005 Status Conference, the Court

4 stated that it would address the two issues raised by Plaintiffs, and one of the issues raised by

5 Defendant. These issues are:

6

! Whether there is a de minimis exception to compliance with applicable statutes

7

and regulations in this case, Joint Status Conference Statement, ¶ 32(a);

8

! The application of the “equivalent facilitation” exception under § 2.2 of the

9

Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app.

10

A, id. ¶ 32(b); and

11

! Whether or not an element in technical violation of applicable accessibility

12

standards establishes liability if the element falls within accepted construction

13

tolerances or there is no effect on accessibility. Id. ¶ 33(k).

14

The present Motion addresses these three issues.

15

BACKGROUND

16 A. The Americans with Disabilities Act.

17

1. Statutory and Regulatory Requirements.

18

Title III of the ADA prohibits disability discrimination by those who own or operate

19 places of public accommodation -- such as Taco Bell restaurants1 -- “in the full and equal

20 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of that

21 public accommodation. 42 U.S.C. § 12182(a). Under Title III, all facilities built for first

22 occupancy after January 26, 1993 are required to be “readily accessible to and usable by”

23 individuals with disabilities. Id. § 12183(a)(1). To comply with section 12183(a)(1), a facility

24 must be built in conformance with the DOJ Standards. 28 C.F.R. pt. 36, app. A; see 28 C.F.R.

25

26

1

See 42 U.S.C. § 12181(7)(B) (restaurants are places of public accommodation

27 under title III).

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1 § 36.406. The only defense to this obligation is where compliance is “structurally

2 impracticable.” 42 U.S.C. § 12183(a)(1).2

3

The DOJ Standards set forth, among other things, precise dimensional requirements for

4 a variety of architectural elements. Section 3.1 of those Standards states that “[d]imensions

5 that are not marked minimum or maximum are absolute, unless otherwise indicated . . .”

6

Section 3.2 of the DOJ Standards provides that “[a]ll dimensions are subject to

7 conventional building industry tolerances for field conditions.” During the meet and confer

8 process, the parties agreed on this provision, and agreed that, once Plaintiffs have established

9 that a dimension is in violation of the Standards, Defendant bears the burden of proving -- with

10 expert testimony -- that the dimension in question falls within conventional building industry

11 tolerances for field conditions. See Joint Status Conference Statement, ¶¶ 17-18.

12

Section 2.2 of the DOJ Standards reads: “Equivalent Facilitation: Departures from

13 particular technical and scoping requirements of this guideline by the use of other designs and

14 technologies are permitted where the alternative designs and technologies used will provide

15 substantially equivalent or greater access to and usability of the facility.”

16

2. The Development of the DOJ Standards.

17

The DOJ Standards are the product of a lengthy and laborious process involving input

18 from many different affected groups.

19

This process began more than 40 years ago with ANSI’s “American National Standard

20 Specifications for Making Buildings and Facilities Accessible to, and Useable by, the

21 Physically Handicapped.”3 In 1968, Congress passed the Architectural Barriers Act, which

22 mandated accessibility in buildings built or leased by the federal government. 42 U.S.C.

23

24

2

The “structurally impracticable” defense applies “only in those rare

25

circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R. § 36.401(c)(1).

26

3

See Lucy Harber, Ronald Mace & Peter Orleans, UFAS Retrofit Guide:

27 Accessibility Modifications for Existing Buildings 10 (1993) (“UFAS Retrofit Guide”).

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1 §§ 4151 - 4157. In 1973, Congress created the Access Board, and in 1978, authorized it to

2 establish minimum accessibility guidelines to enforce the Architectural Barriers Act. 29 U.S.C.

3 § 792(b). During that period, the ANSI accessibility standards were undergoing a “long and

4 arduous review and approval process,” which resulted in the publication of a much expanded

5 verison in 1980, known as ANSI A117.1 (1980).4 These 1980 ANSI standards, in turn, formed

6 the basis for the Minimum Guidelines and Requirements for Accessible Design (“MGRAD”),

7 first published by the Access Board in 1982. 47 Fed. Reg. 33,962, 33,962 (Aug. 4, 1982),

8 codified at 36 C.F.R. pt. 1190.

9

When Congress passed the ADA in 1990, it instructed the Access Board to “issue

10 minimum guidelines that shall supplement the existing [MGRAD] for purposes of” Title III, 42

11 U.S.C. § 12204(a), and instructed the DOJ to issue regulations implementing Title III that

12 included standards consistent with the Access Board’s minimum guidelines. Id., § 12186(b) &

13 (c). Pursuant to this mandate, the Access Board developed the Americans with Disabilities Act

14 Accessibility Guidelines (“ADAAG”), 56 Fed. Reg. 2296, 2297 (Jan. 22, 1991), codified at 36

15 C.F.R. pt. 1191 app. A, which the DOJ adopted as the DOJ Standards. 56 Fed. Reg. 35,544,

16 35,584-85 (July 26, 1991).5

17

The DOJ Standards were thus based on 30 years of research, development, expertise,

18 and commentary. ANSI A117.1, on which the Access Board relied heavily in drafting the

19 ADAAG, was “developed through a consensus process by a committee made up of over 50

20 organizations representing associations of individuals with disabilities, rehabilitation

21 professionals, designers, builders, manufacturers, and government agencies.” 56 Fed. Reg. at

22 2297; see also DOJ Standards § 1 (technical specifications are the same as ANSI A117.1

23

24

4

UFAS Retrofit Guide at 10.

25

5

The Access Board adopted a new ADAAG this past summer. 69 Fed. Reg.

26

44,084 (July 23, 2004). It is currently under consideration by the DOJ, but has not yet been adopted by that agency as the Standards for Accessible Design. See 69 Fed. Reg. 58,768 (Sept.

27 30, 2004).

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1 (1980) except where indicated). The MGRAD, ADAAG and DOJ Standards were all adopted

2 after full notice and comment.6 The latter two sets of standards were the first federal standards

3 to apply to private businesses; those businesses and other interested parties had extensive input

4 into the rulemaking process.7

5

The DOJ Standards provisions relating to absolute dimensions and tolerances have been

6 in the ANSI standard since at least 1986. ANSI A117.1 (1986) §§ 3.1 & 3.2; see also MGRAD

7 § 1190.6(e). The provision relating to equivalent facilitation was first added by the Access

8 Board in drafting the ADAAG. When initially proposed, section 2.2 read, “Departures from

9 particular technical and scoping requirements of this guideline by the use of other methods are

10 permitted where the alternative methods used will provide substantially equivalent or greater

11 access to and usability of the facility.” 56 Fed. Reg. at 2327 (emphasis added). Following

12 notice and comment, the words “designs and technologies” were substituted for the word

13 “methods.” The Access Board explained, “[t]he equivalent facilitation provision has been

14 clarified by substituting the words ‘designs and technologies’ for ‘methods.’ The purpose of

15 the provision is to allow for flexibility to design for unique and special circumstances and to

16 facilitate the application of new technologies.” 56 Fed. Reg. at 35,413.

17 B. The Unruh Act and the California Disabled Persons Act.

18

1. Statutory and Regulatory Requirements.

19

Both the CDPA, which was enacted in 1968, and the Unruh Act, which was amended in

20 1987 to cover persons with disabilities, prohibit discrimination on the basis of disability in the

21 full and equal access to the services, facilities and advantages of public accommodations. Cal.

22

23

6

47 Fed. Reg. at 33,962 (MGRAD); 56 Fed. Reg. 35,408, 35,409-10 (July 26,

24 1991) (ADAAG); 56 Fed. Reg. at 35,544-45 (DOJ Standards).

25

7

See 56 Fed. Reg. at 35,409 (Access Board held 14 public hearings at which 450

people testified and received 12,000 pages of comments and testimony); 56 Fed. Reg. at 35,544

26

(DOJ held four public hearings at which 329 people testified, and received over 10,000 pages of comments, including “292 comments from entities covered by the ADA and trade

27 associations representing businesses in the private sector”).

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1 Civ. Code §§ 51(b) & 54.1(a)(1). All buildings constructed8 or altered9 after July 1, 1970, must

2 comply with standards governing the physical accessibility of public accommodations.

3 Moeller, 220 F.R.D. at 607.

4

Like the DOJ Standards, the California Standards contain a provision stating that “[a]ll

5 dimensions are subject to conventional building industry tolerances for field conditions.” Cal.

6 Stds. (2001) § 1101B.4. Unlike the DOJ Standards, California does not permit departures from

7 its standards for equivalent facilitation. Rather, California law requires equivalent facilitation

8 where other defenses -- for example, an unreasonable hardship determination -- excuse full

9 compliance. See, e.g., Cal. Gov’t Code § 4451(f); Cal. Stds. § 1104B.5.1, Exception 1 (“In

10 existing buildings, when the enforcing agency determines that compliance with any regulation

11 under this section would create an unreasonable hardship, an exception shall be granted when

12 equivalent facilitation is provided.”).

13

2. The Development of the California Standards.

14

Like the DOJ Standards, California’s accessibility standards resulted from a

15 coordinated process over many years involving many different affected groups.

16

Pursuant to section 4450 of the California Government Code -- which applied to private

17 buildings starting in 196910 -- California’s accessibility standards are developed by the State

18 Architect and subject to review and approval by the state Building Standards Commission

19 (“BSC”). Like the DOJ Standards, the California Standards are “minimum requirements.”

20 Cal. Gov’t Code § 4452. In developing state accessibility standards, the State Architect is

21 required to “consult with the Department of Rehabilitation, the League of California Cities, the

22 California State Association of Counties, and at least one private organization representing and

23 comprised of persons with disabilities.” Id. § 4450(b). In addition, the State Architect is

24
8
25
9
26
10
27 1983).

Cal. Health & Safety Code § 19956. Cal. Health & Safety Code § 19959. People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 489-90 (Cal. App.

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1 advised by an Advisory Board, which includes engineers, contractors, and local building

2 officials. Cal. Code Regs., tit. 24, § 4-355.

3

The BSC consists of ten members, including four representatives of the building and

4 construction professions, an individual with a physical disability, and an expert in barrier-free

5 design. Cal. Health & Safety Code § 18921(a) & (b). In addition, the BSC receives advice

6 from a Coordinating Council that includes “representatives appointed by the State Director of

7 Health Services, the Director of the Office of Statewide Health Planning and Development, the

8 Director of Housing and Community Development, the Director of Industrial Relations, the

9 State Fire Marshal, the Executive Director of the State Energy Resources Conservation and

10 Development Commission, and the Director of General Services.” Id. § 18926(a).

11

By statute, the BSC is required to evaluate proposed standards to ensure compliance

12 with nine criteria, including that the standards are in the public interest, that the “cost to the

13 public is reasonable, based on the overall benefit to be derived from the building standards,”

14 and that “[t]he applicable national specifications, published standards, and model codes have

15 been incorporated therein . . . where appropriate.” Id. § 18930(a). Proposed standards are also

16 required to be adopted in compliance with California’s Administrative Procedure Act. Id.

17 § 18929(a) (requiring compliance with Cal. Gov’t Code § 11346 et seq). This process requires

18 public notice, as well as public discussion, comments and/or hearings. Cal. Gov’t Code

19 §§ 11346.2, 11346.45, 11346.8.

20

The State Architect did not develop accessibility standards immediately after passage of

21 section 19956. Pending development of such standards, “Government Code section 4451

22 required builders adhere to the American Standards Association specifications A117.1- 1961.”

23 People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 489 (Cal. Ct. App. 1983). These

24 were the standards applicable to California public accommodations from 1969, when section

25 19956 was passed, to 1981, when the State Architect first enacted state accessibility standards.

26 See id. at 491. Section 4450, as originally enacted, instructed that the California Standards

27 track the Uniform Building Code (“UBC”). Donald v. Sacramento Valley Bank, 260 Cal. Rptr.

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1 49, 54 (1989). The UBC was first developed by the International Conference of Building

2 Officials in 1927, and has been amended periodically since that time.11 The first set of

3 California accessibility standards were developed in the late 1970s based on these model codes,

4 and were adopted by the BSC after a series of public hearings.12 These standards have been

5 revised approximately seven times since 1981, each time based on both the UBC13 and, as

6 explained above, public comment and expert input.

7

ARGUMENT

8

The ADA and California law both include a reasonable provision to address small

9 deviations from dimensional standards: they are permitted where they result from the realities

10 of construction or installation. Neither set of standards permits deviations to be ignored as de

11 minimis, and the “equivalent facilitation” provision of the DOJ Standards does not cover such

12 deviations. Ultimately, Defendant’s reliance on these two defenses to excuse noncompliance

13 would require this Court to redo 30 years of regulatory and code development. Plaintiffs

14 respectfully request that the Court decline the Defendant’s invitation to rewrite the Standards

15 and rely, instead, on the provision developed by the state and federal regulatory bodies to

16 address small deviations: conventional building industry tolerances for field conditions.

17 I. There is No “De Minimis” Exception to Compliance with DOJ or California
Standards. 18
Defendant has indicated that it will seek to excuse deviations from the DOJ and 19
California Standards as “de minimis.” The Ninth Circuit has explicitly rejected Defendant’s 20
argument, holding that there is no exception for “substantial compliance” or “technical 21
violations” in the application of the DOJ Standards. Long v. Coast Resorts, Inc., 267 F.3d 918, 22

23

11 Int’l Conference of Bldg. Officials, 1 Uniform Building Code 1-iii (1994).

24

12 San Francisco Mayor’s Office on Disability, “The History, Overview and

Application of State and Federal Disability Access Laws and Regulations: History

25 Background,” at http://www.sfgov.org/site/sfmod_page.asp?id=5722 (last visited 02/25/2005).

26

13 Cal. Stds. (1981) § 2-106; Cal. Stds. (1984) § 2-106; Cal. Stds. (1987) § 2-111;

Cal. Stds. (1989) § 111A; Cal. Stds. (1994) § 111; Cal. Stds. (1999) § 101.5; Cal. Stds. (2001) 27 § 101.5.

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1 923 (9th Cir. 2001). The district court in Long had found that the width of bathroom doors in a

2 hotel were out of compliance but refused to order injunctive relief because of “‘the near

3 absence of hardship and . . . minimal inconvenience to wheelchair users.’” Id. (quoting district

4 court decision). This is precisely Defendant’s argument: that where there is minimal hardship

5 or inconvenience to wheelchair users, “technical violation[s]” from the standards may be

6 excused. See Joint Status Conference Statement ¶ 33(k). The Ninth Circuit rejected that

7 argument, holding that the lower court’s ruling “was in error,” that “there is no room for

8 discretion” under 42 U.S.C. § 12182(a), and that there was only one defense to compliance

9 with that section: structural impracticability. Id.

10

Similarly, the court in Ability Center of Greater Toledo v. Sandusky, 133 F. Supp. 2d

11 589, 592 (N.D. Ohio 2001), held that a one and one-half inch lip on a curb cut made it

12 noncompliant despite the defendant’s assertion that it caused “slight inconvenience to the

13 user.” Like the Ninth Circuit, the Ability Center court held that “[t]here are no exceptions

14 allowed to [the] requirements” of the DOJ Standards. Id. And the court in United States v.

15 AMC Entm’t, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003), rejected the defendant’s argument

16 that violations that deviate a small amount from the DOJ Standards should be excused, holding

17 that many of those standards “speak in terms of minimums that must be provided. AMC’s

18 argument suggests that the Court should shave half an inch or an inch off [the] articulated

19 minimums [in the DOJ Standards]. . . . This argument is simply not persuasive.” Id., 245 F.

20 Supp. 2d at 1100. Rather, the court properly treated AMC’s “small deviation” theory as an

21 argument for “tolerances,” and subjected it to the requirement, discussed above, that AMC

22 produce expert testimony concerning conventional building industry tolerances. Id.

23

Plaintiffs respectfully request that this Court follow the courts in Long, Ability Center

24 and AMC, reject the de minimis defense, and analyze any deviations from required standards

25 under the provision for tolerances.

26

27

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1 II. The Equivalent Facilitation Provision Was Meant to Encourage Alternative Designs and Technologies, Not to Excuse Violations.
2 The DOJ Standards provide that “[d]epartures from particular technical and scoping
3 requirements . . . by the use of other designs and technologies are permitted where the
4 alternative designs and technologies used will provide substantially equivalent or greater access
5 to and usability of the facility.” DOJ Stds. § 2.2 (emphasis added).14 Congress, in passing the
6 ADA, indicated that an “equivalent facilitation” provision would be appropriate because
7 “[a]llowing these departures will provide public accommodations and commercial facilities
8 with necessary flexibility to design for special circumstances and will facilitate the application
9 of new technologies.” H. Rep. 101-485, pt. 2, at 119, reprinted in 1990 U.S.C.C.A.N. 303,
10 402; see also Architectural and Transportation Barriers Compliance Board, ADAAG Manual: a
11 Guide to the Americans with Disabilities Act Accessibility Guidelines 7 (1998) (The provision
12 “provides flexibility for new technologies and innovative designs [sic] solutions that may not
13 have been taken into account when ADAAG was developed.”). And, as discussed above, the
14 Access Board went out of its way, in the final version of the ADAAG, to change the language
15 “alternative methods” to “alternative designs and technologies.” 56 Fed. Reg. at 35,413.
16 Thus, the plain language of section 2.2 of the DOJ Standards, its legislative history, and
17 the Access Board’s interpretation demonstrate that equivalent facilitation must be an alternative
18 design or technology. Covered elements that simply deviate from the standards do not qualify.
19 This is best illustrated by Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or.
20 1997). Section 4.33.3 of the DOJ Standards requires, in arenas, “[a]t least one companion
21 fixed seat” next to each accessible seat. In Oregon Arena, the court endorsed the use of folding
22 chairs, instead of fixed seats, as a more flexible solution for companions of persons who use
23 wheelchairs. Id. at 726; see also United States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094,
24 1101 (C.D. Cal. 2003) (rejecting equivalent facilitation argument both because there was no
25
26 14 As noted above, California law does not permit departures from its standards for
27 equivalent facilitation. See supra at 8.
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1 evidence of greater access and because “[t]here is no evidence that the documented violations

2 were the result of designs and technologies that were implemented in order to provide

3 substantially equivalent or greater access to and usability of the facility.”).

4

In sum, both Congress and the Access Board concur that the equivalent facilitation

5 provision was intended to provide flexibility for alternatives in design for special circumstances

6 and in new technologies. It is clear -- especially in light of the Access Board’s amended

7 language -- that this provision was not intended simply to excuse noncompliant elements or

8 dimensions. Thus, where Defendant can demonstrate that a departure from the DOJ Standards

9 was based on an alternative design or technology intended to provide substantially equivalent

10 or greater access, that departure would not constitute a violation of those Standards. However,

11 in the absence of such evidence, this provision does not excuse Defendant’s noncompliance.

12 III. Defendant’s Proposed Defenses Would Improperly Require This Court To

Substitute its Judgment for that of Responsible Regulatory Agencies and Rewrite

13

the Standards.

14

Defendant’s asserted defenses will force this Court to reinvent the regulatory wheel and

15 have the potential to produce inconsistent and unpredictable conditions for people who use

16 wheelchairs or scooters seeking access to places of public accommodation.

17

As set forth in detail above, the DOJ and the California Standards are the results of

18 complex and highly technical standards-setting and regulatory processes. Both were developed

19 over 30 to 45 years by experts in the design and construction fields, and both have been

20 subjected repeatedly to public comment. Taco Bell -- which has been in existence since the

21 early 1960's15 -- has had ample and repeated opportunity to comment on both sets of standards.

22

Defendant’s asserted “de minimis” and “equivalent facilitation” defenses will force this

23 Court to stand in the shoes of, among others, the Access Board, the DOJ, the California State

24 Architect, and the Building Standards Commission, to ignore the technical evidence and public

25 comment supporting the DOJ and California Standards, and endorse -- based on the evidence

26 15 Taco Bell Corp., “Interesting Facts About Taco Bell,” http://www.tacobell.com/
27 ourcompany/facts.htm (last visited 02/25/2005).
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1 of experts retained in litigation -- weaker sets of standards. For example, Defendant has

2 indicated that it will rely, in invoking these defenses, on the testimony of a physical

3 anthropologist concerning the percentage of people using wheelchairs or scooters who can and

4 cannot use a given element in its noncompliant state.16 If this Court were to accept Defendant’s

5 argument, it would have to consider -- with respect to each of the elements at issue in this

6 litigation -- Defendant’s expert’s statistics and any contrary evidence submitted by Plaintiffs’

7 expert and determine whether a standard weaker than that adopted by the DOJ and the BSC

8 would be acceptable.

9

Plaintiffs respectfully submit that this would not be appropriate. The DOJ was directed

10 by statute to develop the DOJ Standards. 42 U.S.C. § 12186(b). The State Architect and the

11 Building Standards Commission were directed by statute to develop and approve, respectively,

12 the California Standards. Cal. Gov’t Code § 4450(b). The United States Supreme Court has

13 held that, “[a]s the agency directed by Congress to issue implementing regulations, to render

14 technical assistance explaining the responsibilities of covered individuals and institutions, and

15 to enforce Title III in court, the [DOJ’s] views are entitled to deference.” Bragdon v. Abbott,

16 524 U.S. 624, 626 (1998) (citations omitted); see also Disabled Rights Action Comm. v. Las

17 Vegas Events, Inc., 375 F.3d 861, 876 (9th Cir. 2004) (quoting Bragdon and holding, with

18 respect to the DOJ’s Technical Assistance Manual, that “[a]s this regulation was issued

19 pursuant to an express statutory authorization, makes sense of an ambiguous statutory

20 provision, and is fully consistent with the purposes and history of the ADA, it is binding upon

21 us.”). California courts give similar deference to the Building Standards Commission. See

22 Plastic Pipe and Fitting Ass’n. v Calif. Building Standards Comm’n, 22 Cal. Rptr.3d 393, 402-

23 03 (Cal. App. 2004) (holding that “[t]he [Building Standards] Commission’s approval of

24 building standards under the Building Standards Law is a quasi-legislative act of administrative

25

26 16 See Def.’s Opp’n to Pls.’ Mot. for Partial Summ. J. and Conditional Cross-Mot.
27 for Partial Summ. J. at 14-15, 22.
28 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Revised Motion for Partial Summary Judgment

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1 rulemaking,” and that “[a] court reviewing a quasi-legislative act cannot reweigh the evidence

2 or substitute its own judgment for that of the agency.”)

3

Several courts have explicitly declined a litigant’s invitation to substitute their judgment

4 for that of the DOJ to rewrite the Standards. For example, in United States v. National

5 Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001), the plaintiff asked the court to apply

6 the general anti-discrimination language of the ADA to require physical access that went

7 beyond the language of the DOJ Standards. The court declined to do so, stating that this would

8 “place the judiciary in the uncomfortable position of having to fashion complex, technical rules

9 of design under the guise of statutory interpretation.” Id. at 261. “‘The courts are ill-equipped

10 to evaluate such claims and to make what amount to engineering, architectural, and policy

11 determinations as to whether a particular design feature is feasible and desirable.’” Id. (quoting

12 Indep. Living Res., 982 F. Supp. at 746). Where the regulatory bodies -- acting pursuant to

13 statutory mandates -- have explicitly delineated the circumstances under which deviation from

14 the standards will be acceptable -- conventional building industry tolerances for field

15 conditions -- Plaintiffs urge that it would be inappropriate to add judicially-created exceptions

16 that will require litigants and courts to redo the work of those regulatory bodies.

17

Ultimately, both the DOJ and the California Standards are minimum standards. 42

18 U.S.C. §§ 12186(c) & 12204(a); Cal. Gov’t Code § 4452. As Defendant has acknowledged,

19 “the dimensions set forth in ADAAG and Title 24 do not assure that all persons confined [sic]

20 to wheelchairs or scooters will be able to use fully compliant facilities.” (Def.’s Mot. for

21 Modification of Class Definition at 11.) Should courts adopt Defendant’s proposed “de

22 minimis” and “equivalent facilitation” defenses, even fewer facilities will be accessible, and

23 people who use wheelchairs and scooters will lose the predictability and consistency that even

24 these minimum standards now provide.

25

26

27

28 Case No. C 02 5849 MJJ ADR
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1

CONCLUSION

2

Plaintiffs respectfully request that this Court hold that Taco Bell’s violations of

3 applicable dimensional standards may only be justified as “conventional building industry

4 tolerances for field conditions,” and may not be excused as “de minimis” or analyzed as

5 “equivalent facilitation.”

6 Respectfully submitted,
7 FOX & ROBERTSON, P.C.
8

9

10
11
12
13
14 Executed: February 28, 2005
15

By: /s/ Amy F. Robertson Amy F. Robertson, pro hac vice Timothy P. Fox, Cal. Bar No. 157750 910 - 16th Street Suite 610 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28 Case No. C 02 5849 MJJ ADR
Plaintiffs’ Revised Motion for Partial Summary Judgment

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 Case 3:02-cv-05849-PJH Document 173 Filed 04/15/2005 Page 1 of 18

1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 RONDA J. McKAIG (State Bar No. 216267) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
3 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144
4 Telephone: (213)687-5000
Facsimile: (213) 687-5600
5
Attorneys for Defendant Taco Bell Corp.
6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 FRANCIE B. MOELLER, et al.

) Case No. C 02 5849 MJJ ADR

12

Plaintiffs,

) DEFENDANT'S OPPOSITION TO

) PLAINTIFFS' REVISED MOTION FOR

13

v.

) PARTIAL SUMMARY JUDGMENT

14 TACO BELL CO.,
15

Defendant.

) Date: June 3, 2005 ) Time: 9:30a.m. ) Courtroom: 11

16 _______________________________________

17

18 19

20

21

22

23 24

25

26

27

28

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES

ii

3 ISSUES TOBEDECIDED

1

4 MEMORANDUM OF POINTS AND AUTHORITIES

1

5 I. INTRODUCTION

1

6 II.
7 8 9 10
III.
11

AN ELEMENT IN TECHNICAL NON-COMPLIANCE WITH APPLICABLE

ACCESSIBILITY STANDARDS DOES NOT ESTABLISH LIABILITY WHERE SUCH

DEVIATIONS CONSTITUTE EQUIVALENT FACILITATION AND THERE IS

SUBSTANTIALLY EQUAL OR GREATER ACCESSIBILITY

3

Section 2.2 Is Not Limited To "New Technology"

4

This Court Has Jurisdiction To Resolve Section 2.2 Disputes

8

THERE IS NO LIABILITY WHERE A DEVIATION FROM AN APPLICABLE STANDARD IS DEMINIMIS AND THERE IS NO EFFECT ON ACCESSIBILITY 10

12 CONCLUSION

14

13

14

15

16

17

18

19
20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2

CASES

3 Ability Center of Greater Toledo v. Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001)
4 Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357 (S.D. Fla. 2001)

6 Caruso v. Blockbuster-Sony Music Entm't Ctr.,

7

193F.3d730(3dCir. 1999)

8 Dixey v. Idaho First Nat'! Bank,

677 F.2d 749 (9th Cir. 1982)

9

Indep. Living Res. v. Oregon Arena Corp.,

10

982 F. Supp. 698 (D. Or. 1997)

12-13
11
4 13 4,5, 11

Indep. Living Res. V. Oregon Arena Corp.,

12

iF. Supp. 2d 1124 (D. Or. 1998)

13 Long v. Coast Resorts, Inc.,

267 F.3d 918 (9th Cir. 2001)

14

Moeller v. Taco Bell Corp.,

15

220 F.R.D. 604 (N.D. Cal. 2004)

16 Repp v. Anadarko Mun. Hosp.,

17

34F.3d519(l0thCir. 1994)

18 United States v. AMC Entm't, Inc., 245 F. Supp. 2d 1094 (C.D. Ca!. 2003)
19

11-12 12
2, 10 13 13

20

STATUTES

21 28 C.F.R. § 36.304 (2002)

7

22 28 C.F.R. § 36.402(a)(1)

2

23 28 C.F.R. § 36 app. A 2.2

4

24 Not. of Fed. Rules, 56 Fed. Reg. 2300 (Jan. 22, 1991)

5, 6

25 Final Rule, 56 Fed. Reg. 35586 (July 26, 1991)
26 42 U.S.C. 1218(a)
27 42 U.S.C. 12183(a)
28

4, 11 10 2

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1 43U.S.C.12186(b)

.10

2

OTHER AUTHORITY

3

R. Russell Hymas and Brett R. Parkinson, Architectural Barriers Under the ADA: An

4

Answer to the Judiciary's Struggle with Technical Non-Compliance,

5

39 Cal. W.L. Rev. 349 (2003)

5, 7

6 Merriam-Webster Online Dictionary; Webster's Ninth New Collegiate Dictionary (1983)

4

7 SenateReportNo.101-116(1989)

2

8 Title III Technical Assistance Manual — 7.200, 7.200(2)

5

9 U.S. Dept. of Justice, Technical Assistance Letter, DJ 202-PL-341; DJ 202-PL-409 (June 14, 1993)
10

2, 4, 9

11

12

13

14

15

16

17

18

19

20 21

22

23

24

25

26

27

28

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1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 RONDA J. McKAIG (State Bar No. 216267) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
3 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144
4 Telephone: (213)687-5000
Facsimile: (213) 687-5600
5 Attorneys for Defendant Taco Bell Corp.
6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 FRANCIE E. MOELLER, et al.

) Case No. C 025849 MJJ ADR

12

13

v.

14 TACO BELL CORP., 15

Plaintiffs, Defendant.

) DEFENDANT'S OPPOSITION TO ) PLAINTIFFS' REVISED MOTION FOR ) PARTIAL SUMMARY JUDGMENT ) ) Date: June 3, 2005 ) Time: 9:30 a.m. ) Courtroom: 11

16 _______________________________________

17

ISSUES TO BE DECIDED

18

1. Whether deviations from applicable accessibility standards establish liability where

19 such deviations are minimis and there is no effect on accessibility?

20

2. Whether deviations from applicable accessibility standards establish liability where

21 such deviations constitute equivalent facilitation and there is no effect on accessibility?

22

MEMORANDUM OF POINTS AND AUTHORITIES

23 I. INTRODUCTION

24 If the Court were to accept Plaintiffs' position on the issues of equivalent facilitation and de
25 minimis deviations, the actual accessibility of Taco Bell restaurants would become wholly 26
irrelevant. Instead, all that would matter is literal adherence to selected provisions of disability 27
access regulations. This was not the intent of the Americans with Disabilities Act of 1990 (the
28
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1 "ADA") or its progeny, and such a holding would result in the absurd situation in which an entity

2 providing access to disabled individuals equal to or greater than provided by the suggested

3 construction standards in the ADA guidelines could be found in violation of the ADA.

4

The ADA was enacted "to provide a clear and comprehensive national mandate to end

5 discrimination against individuals with disabilities . . . [and] to provide enforceable standards

6 addressing discrimination against individuals with disabilities." Senate Rep. Nos. 111-116, at 2

7 (1989). As this Court previously stated, the ADA "recognizes that the Nation's proper goals

8 regarding individuals with disabilities are to assure equality of opportunity, full participation,

9 independent living, and economic self-sufficiency for such individuals." Moeller v. Taco Bell

10 Corp., 220 F.R.D. 604, 606 (N.D. Cal. 2004) (internal citations omitted). To that end, the focus of

11 Title III of the ADA is to facilitate the accessibility of public accommodations to individuals with

12 disabilities. In that regard, all facilities built for first occupancy after January 26, 1993 are required

13 to be "readily accessible to and usable by" individuals with disabilities, except when it is

14 structurally impracticable to do so. 42 U.S.C. § 12183(a)(1). Similarly, any alteration to a place of 15 public accommodation after January 26, 1992 shall be made so as to ensure that, to the maximum

16 extent feasible, the altered portions of the facility are "readily accessible to and usable by"

17 individuals with disabilities. 28 C.F.R. § 36.402(a)(1).

18

The term "readily accessible to or usable by" is "intended to enable people with disabilities

19 . . . to get to, enter, and use a facility." Senate Rep. No. 111-116, at 69. "While the term does not

20 necessarily require the accessibility of every part of every area of a facility, the term contemplates a 21 high degree of convenient accessibility." .h The Department of Justice Standards for Accessible

22 Design (the "DOJ Standards") are intended to "provide guidance to those in the building industry

23 as to how to provide minimum levels of accessibility." U.S. Dept. of Justice, Technical Assistance

24 Letter, DJ 202-PL-341; DJ 202-PL-409, at 3 (June 14, 1993) (hereinafter, "DOJ Opinion Letter").

25

The DOJ has recognized that the DOJ Standards "do not constitute a strict formula for

26 design." Id. Without a doubt, the dimensions set forth in the DOJ Standards and Title 24 do not,

27 and are not meant to, assure that all persons confined to wheelchairs or scooters will have complete

28
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1 access to fully compliant facilities. For example, the DOJ Standards require a lavatory sink to have

2 a minimum of 27 inches clearance for knees. According to an anthropometric survey, the knee

3 clearance mandated by the DOJ Standards accommodates only 64.8% of individuals confined to

4 wheelchairs. See Bradtmiller Dccl. Ex. C at 2.' As a consequence, 35.2% of the wheelchair

5 population would be hindered in their use and enjoyment of the lavatory even if it were

6 compliant with the DOJ Standards. Similarly, under the DOJ Standards and Title 24, the maximum

7 height of the bottom of a mirror in a restroom is 40 inches. Approximately 50% of those confined

8 to wheelchairs probably would not be able to fully use the mirror (i.e., would be unable to see some

9 part of their face) even if the mirror had been fully compliant. See id.

10

The legislative intent behind the ADA and Title 24, its state law analogue, was to provide

11 maximum access, not rigid and unwavering standards of accessibility. Where particular elements

12 in a Taco Bell restaurant deviate from the applicable accessibility standards and there is no effect

13 on accessibility, such elements would satisfy the underlying purpose of the ADA — maximum

14 access. Whether such deviations are characterized as 4minimis or equivalent facilitation, the end

15 result is the same: the ADA's goal to provide facilities accessible to individuals with disabilities

16 would be met.

17

For their part, Plaintiffs ask this Court to adopt a rule that would not increase accessibility

18 by so much as a single individual, but would cost businesses huge amounts of money modifying

19 facilities to adhere precisely to DOJ Standards and Title 24, despite the fact that doing so would

20 provide absolutely no benefit to the disabled. Taco Bell urges the Court to reject this mechanistic

21 approach to a statute expressly designed for flexibility.

22 II.
23 24

AN ELEMENT IN TECHNICAL NON-COMPLIANCE WITH APPLICABLE ACCESSIBILITY STANDARDS DOES NOT ESTABLISH LIABILITY WHERE
SUCH DEVIATIONS CONSTITUTE EQUIVALENT FACILITATION AND THERE IS SUBSTANTIALLY EQUAL OR GREATER ACCESSIBILITY

25

The DOJ Standards provide — as Plaintiffs concede — that "[d]epartures from particular

26 technical and scoping requirements of this guideline by the use of other designs and technologies

27 1

The Bradtmiller Decl. was filed concurrently in support of Taco Bell's Motion to Modify

28 the Class Definition.

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1 are permitted where the alternative designs and technologies used will provide substantially

2 equivalent or greater access to and usability of the facility." 28 C.F.R. § 36 app. A § 2.2 ("Section 3 2.2"); see Plaintiffs' Revised Motion For Partial Summary Judgment ("Pls.' Mot.") at 12:2-6. As

4 the Third Circuit has recognized, "{p]roperly read, the 'Equivalent Facilitation' provision does not

5 allow facilities to deny access under certain circumstances, but instead allows facilities to bypass

6 the technical requirements laid out in the Standards when alternative designs will provide

7 'equivalent or greater access to and usability of the facility." Caruso v. Blockbuster-Sony Music

8 Entm't Ctr., 193 F.3d 730, 739 (3d Cir. 1999) (emphasis added).2 9 Section 2.2 Is Not Limited To "New Techno1oy"

10

Plaintiffs argue that the equivalent facilitation exception only applies where new

11 technology provides the alternative access. Pis.' Mot. at 12: 2-19. Thus, Plaintiffs would insert

12 into the equivalent facilitation exception a requirement that a defendant somehow prove the design

13 used to permit accessibility was a new technology unknown to the DOJ at the time it established

14 the relevant standard. This position is not supported by the language of Section 2.2, which simply

15 allows for alternative designs and technologies.3 Indeed, "[tjhe equivalent facilitation exception is

16 an acknowledgement that the federal government does not enjoy a monopoly on good ideas, and

17 that there may be more than one means to accomplish a particular objective." Indep. Living Res. v.

18 Oregon Arena Corp., 982 F. Supp. 698, 727 (D. Or. 1997); see DOJ Opinion Letter at 3

19 ("[T]he Standards do not constitute a strict formula for design, nor are they intended to constrain

20 design innovations that provide equal or greater access.").4 As the legislative history of the DOJ

21
2

"A few commenters, citing the Senate report. . . and the Education and Labor report.

22 asked the Department to include in the regulations a provision stating that departures from

particular technical and scoping requirements of the accessibility standards will be permitted so

23 long as the alternative methods used will provide substantially equivalent or greater access to and

utilization of the facility. Such a provision is found in ADAAG 2.2 and by virtue of that fact is

24 included in these regulations." Final Rule, 56 Fed. Reg. 35586 (July 26, 1991).

25

Merriam-Webster Online Dictionary (alternative: "different from the usual or

conventional"; "offering or expressing a choice") (www.Merriam-Webster.com 2005); Webster's

26 Ninth New Collegiate Dictionary (alternative: "offering or expressing a choice") (1983).

27

A 2003 law review article addressing this issue noted that "if a restaurant's alleged van

accessible handicapped parking space has an access aisle that is 95 inches wide, it has technically

28 violated the Accessibility Standards, which require a 96-inch wide access aisle. A defendant has a

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1 Standards make clear, "Generally, alternative methods will satisfy the requirement if in material

2 respects the access is substantially equivalent to that which would be provided by the guidelines in

3 such respects as ease, safety, convenience and independence of movement." Notice of Fed. Rules,

4 56 Fed. Reg. 2300 (Jan. 22, 1991). Accordingly, there are only two requirements for an equivalent 5 facilitation: (i) it is different from the DOJ Standards, and (ii) it provides equal or greater access

6 to the subject facilities.

7

For example, the Title III Technical Assistance Manual ("TAM") provides that "{r]ather

8 than install a text telephone next to a pay phone, hotels may keep portable text telephones at the
9 desk, if they are available 24 hours per day . . . ." TAM 111-7.2100(2). This is not a new

10 technology or special design, but rather, an alternative that provides equivalent access for disabled

11 individuals. TAM gives several equivalent facilitation examples and then asks "Are these the only

12 places where equivalent facilitation can be used?" TAM 111-7.2100. The answer — according to 13 the DOJ — is "No. Departures from any provision in ADAAG are permitted as long as equivalent

14 facilitation is provided." (emphasis added). There is no requirement that equivalent facilitation

15 must be provided via new technology or special design.

16

The court in Independent Living Resources v. Oregon Arena Corp. specifically rejected the

17 argument that "the equivalent facilitation exception is limited to 'new' technologies." 982 F. Supp.

18 at 727. The Court noted that defendant's equivalent facilitation argument regarding the use of

19 folding chairs to provide companion seats "appear[ed] to be an eleventh-hour argument conceived

20 by lawyers." at 728 n.36. However, "[r]egardless of why defendant originally decided to use 21 folding chairs, the question before the court is whether that is a permissible means to satisfy the

22 requirement for provision of a companion seat." Id.

23 legitimate concern that a "professional plaintiff' might measure the parking space and then bring a
24 lawsuit against the restaurant, alleging that the one-inch deviation from the Accessibility Standards was an architectural barrier. However, the defendant may rebut the presumption by proving, by a
25 preponderance of evidence, that the plaintiffs full and equal enjoyment of the facility was not impaired by the 1-inch deviation. If the violation did not impede or hamper the disabled person's
26 full and equal enjoyment of the facility, the defendant has successfully rebutted the presumption and there is no architectural barrier." R. Russell Hymas and Brett R. Parkinson, Architectural
27 Barriers Under the ADA: An Answer to the Judiciary's Struggle with Technical Non-Compliance, 39 Cal. W. L. Rev. 349, 375 (2003).
28
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1

If an alternate set up or design allows substantially equivalent or greater access, it falls

2 within the equivalent facilitation exception.5 Whether equivalent access is provided by a design or

3 set up that differs from the DOJ Standards or Title 24 is a matter of expert testimony.6 For

4 example, a survey conducted by the Special Master revealed that on the date of the survey, the

5 height of the side and rear grab bars in the women's restroom of Restaurant No. 2423 was 37

6 inches, whereas the maximum allowed height is 33 inches (or 36 inches for the rear grab bar if a

7 tank impedes placement at 33 inches). While a side or rear grab bar height of 3 3-36 inches allows

8 95% of wheelchair users access, a height of 37 inches actually allows 96.7% of wheelchair users

9 access, a greater percentage. ç Bradtmiller Decl. Ex. C at 4. Directly contrary to their stated

10 goals for this litigation, Plaintiffs insist this Court adopt a rule that would require Taco Bell to

11 lower the grab bar so that fewer wheelchair users will have access. That result not only does not

12 make sense, it is contrary to the equivalent access rule expressly set forth in the DOJ Standards.

13

In Restaurant No. 2801, the height of the lavatory rim in the men's restroom was measured

14 at 35 V2 inches, whereas the maximum allowed height is 34 inches. While a lavatory rim height of

15 34 inches permits more than 99% of wheelchair users access, a lavatory rim height of 35 V2 inches

16 also permits more than 99% of all wheelchair users access. id. at 2. Here, Plaintiffs ask the

17 Court to adopt a rule that even though there is equal access, Taco Bell and all other businesses

18 similarly situated should be required to spend money to change the lavatory rim height even though

19 there will be absolutely no increase in accessibility. Plaintiffs' position that a violation exists

20

21

Indeed, the legislative history indicates that something less than exactly equivalent access

may be provided. Section 2.2 "requires that the alternative methods provide substantially

22 equivalent or greater access, in order to clarify that the alternative access need not be precisely

eiuivalent to that afforded by the guidelines." 56 Fed. Reg. at 2300 (emphasis added).

23

6

As shown in Taco Bell's original Cross-Motion for Summary Judgment filed in October

24 2004, Taco Bell is prepared to submit evidence to this Court from Bruce Bradtmiller, a physical

anthropologist who specifically works in the area of anthropometry. Dr. Bradtmiller designs and

25 carries out task-oriented anthropometric research, which is the study of the measurement of the size

and proportions of the human body, as well as parameters such as reach and visual range

26 capabilities. These studies allow Dr. Bradtmiller to provide evidence to the Court regarding the

percentage of disabled persons who can access certain features in a restaurant as compared to DOJ

27 Standards and Title 24 guidelines. This evidence will allow the Court to determine whether or not

"equivalent facilitation" has been achieved.

28

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1 despite equal access is nonsensical and contrary to the purpose of the ADA and the plain language 2 and purpose of Section 2.2.

3

In support of their argument that literal adherence to the DOJ standards is required,

4 Plaintiffs cite to United States v. AMC Entertainment, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003).

5 However, the only reason the AMC court could not apply AMC's asserted defenses (which

6 included construction tolerances and equivalent facilitation) was that AMC failed to provide y

7 evidence regarding whether a feature provided equivalent access or fell within an applicable

8 tolerance. As the court noted, "AMC may not sit idly by and merely criticize [the DOJ's expert]

9 without gathering evidence to rebut his conclusions." at 1100-01. Here, Taco Bell has and will

10 continue to submit expert testimony to rebut any findings of non-compliance when a feature is

11 equally accessible, and the Court will then make the final determination.

12

In the end, Plaintiffs are forced to concede that Section 2.2 was intended to provide the

13 possibility of a "more flexible solution." Pls.' Mot. at 12:22-24. Plaintiffs' concession recognizes

14 that the ADA was intended to strike a balance between access and the cost of doing business. See

15 28 C.F.R. § 36.304 (2002) ("In striking a balance between guaranteeing access to individuals with

16 disabilities and recognizing the legitimate cost concerns of businesses and other private entities, the

17 ADA establishes different standards for existing facilities and new construction."). The ADA's

18 goal of equal access for the disabled is met when a facility, though deviating from strict adherence

19 to DOJ Standards or Title 24, nonetheless provides access equal to or greater than that provided by

20 strict adherence to DOJ Standards or Title 24. On the other hand, the ADA's goal to prevent

21 excessive costs to business is not met if a business is required to spend money to make construction

22 changes when the changes would provide no greater access than existing construction.

23

24

25 Section 2.2 "would provide flexibility in what business owners are required to remove as
26 architectural barriers in existing facilities so long as there is equivalent facilitation. Thus, if an owner of an existing facility can show that, although a condition on his premises may technically
27 violate the Accessibility Standards, it is not a barrier because it provides equivalent facilitation to the facility." Hymas and Parkinson, Architectural Barriers Under the ADA, 39 Cal. W. L. Rev.
28 349, fh. 151.
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1 This Court Has Jurisdiction To Resolve Section 2.2 Disputes

2

Lacking an equitable or legal argument, Plaintiffs spend a great deal of time explaining why

3 the Section 2.2 defense would "improperly require this Court to substitute its judgment for that of

4 responsible regulatory agencies and rewrite the standards." Pis.' Mot. at 13:12-43. Plaintiffs claim

5 that applying Section 2.2 will (1) "force this court to reinvent the regulatory wheel"; (2) "produce 6 inconsistent and unpredictable conditions"; and (3) cause a "weaker set of standards" to be created.

7 Id. at 13:14-15, 14:1. Plaintiffs are wrong.

8

Section 2.2 is part of the DOJ Standards, not a "reinvention." Taco Bell simply asks the

9 Court to enforce existing regulations. Existing regulations provide for an equivalent access

10 exception to the DOJ Standards. Unless Plaintiffs write that exception out of the law, it is precisely

11 this Court's duty to determine whether in a particular situation a facility satisfies the equivalent

12 facilitation exception provided by law. Rather than "reinvent{ing] the regulatory wheel," Taco Bell

13 asks the Court to apply existing regulations.

14

Nor will application of Section 2.2 result in "inconsistent and unpredictable conditions."

15 By definition, Section 2.2 applies only to facilities providing substantially equal or greater access 16 to the disabled. There is nothing inconsistent or unpredictable about that result. Although there 17 may be differences in how that result is achieved, Section 2.2 exists because the DOJ expressly 18 permitted such variances to achieve the desired result. There is nothing in the ADA or the DOJ

19 Standards that puts a premium on having access achieved through exactly the same facility 20 dimensions. To the contrary, putting substance over form, the ADA and the DOJ Standards take

21 great pains to allow for variation so long as substantially equal or greater access is achieved.

22

Finally, application of Section 2.2 will not result in a "weaker set of standards." First,

23 Section 2.2 is a part of the DOJ Standards. Eliminating Section 2.2 — as urged by Plaintiffs —

24 would weaken the DOJ Standards. Conversely, applying Section 2.2 would provide substantially

25 equal or greater access. Plaintiffs do not and cannot explain how providing equal or greater access

26 to the disabled weakens the goals of the ADA.

27

28
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1

Next, Plaintiffs appear to argue that the Court somehow lacks authority to determine

2 whether a feature qualifies under the equivalent facilitation exception. Instead, Plaintiffs contend

3 that only the regulatory agencies are qualified to determine whether Section 2.2 should be applied
4 to a particular facility. Plaintiffs are wrong. There is no regulatory process to determine whether

5 Section 2.2 applies to a particular facility. "Neither the Department of Justice, nor any other

6 Federal agency, functions as a 'building department' to review plans, to issue building permits or

7 occupancy certificates, or to provide 'interpretations' of the Standards in that context. The ADA,

8 like all other Federal civil rights laws, requires each covered entity to use its best professional

9 judgment to comply with the statute and the implementing regulations." DOJ Opinion Letter, at 3. 10 Accordingly, as they have done, courts must apply the law on a case-by-case basis considering the

11 evidence provided by the parties.

12

Finally, Plaintiffs claim that the Court "would have to consider — with respect to each of the

13 elements at issue in this litigation — Defendant's experts statistics . . . ." Pls.' Mot. at 14:4-6.

14 Section 2.2 applies only to elements that deviate from the standards and for which Taco Bell

15 provides evidence that the element provides substantially equal or greater access as built.

16 Although Taco Bell will not be able to mount this statutorily authorized defense to every non-

17 compliant element in this case, Taco Bell is permitted to raise the defense to each element where it

18 is appropriate. Plaintiffs have elected to challenge over 130,000 elements as part of their class

19 action. Plaintiffs cannot be heard now to complain that Taco Bell might avail itself of its right to

20 assert, and have the Court take evidence and rule on, a codified defense even if such a defense

21 requires the Court to rule on many specific elements.

22

The goal of the ADA is to provide full and equal access to disabled individuals with due

23 regard for the cost to businesses. The Section 2.2 equivalent access exception to the DOJ

24 Standards is designed to meet both the goal of full and equal access and regard for costs to

25 businesses. When, as here, a facility that deviates from the DOJ Standards provides equal or

26 greater access to the disabled, there is no ADA violation, and it makes no sense to require a

27

28
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1 business to spend money and resources to alter the facility where there would be absolutely no

2 increase in accessibility.

3 III. THERE IS NO LIABILITY WHERE A DEVIATION FROM AN APPLICABLE
STANDARD IS DE MINIMIS AND THERE IS NO EFFECT ON ACCESSIBILITY 4

5

When arguing that this Court should not apply a minimis exception to the applicable

6 accessibility standards, Plaintiffs misconstrue the purpose for such an exception, and ask the Court

to ignore not only the purpose of disability access laws, but also the practice and holdings of

8 several sister courts. The 4 minimis exception applies only when there is no material effect on accessibility. Thus, applying a de minimis exception would be consistent with the purpose of the

10 ADA to provide access to individuals with disabilities. The provisions of the ADA provide broad principles for the elimination of discrimination

12 against persons with disabilities. The ADA itself does not contain any specific measurements, 13 rather it more generally requires that "[n]o individual ... be discriminated against on the basis of

14 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
15 or accommodations of any place of public accommodation . . . ." 42 U.S.C. 12182(a). To
16 emphasize the ADA's focus on access, Congress chose to delegate responsibility to develop

17 regulations that "carry out the provisions of this [title]" to the Department of Justice. 42 U.S.C. 18 12186(b). Similarly, as this Court has recognized, the Unruh Act and the CDPA also contain only

19 a broad prohibition of "discrimination on the basis of disability in the full and equal access to the

20 services, facilities and advantages of public accommodations." Moeller, 220 F.R.D. at 607. The 21 purpose of these statutes is to ensure access for the disabled, not to require a slavish devotion to

22 articulated standards when minimal variations from those standards do not affect accessibility.

23

For example the mirror in the men's restroom in Store No. 2755 was mounted at 40 '/

24 inches above the floor, Y2 inch above the 40 inch DOJ Standard. The 1/z inch discrepancy is

25 minimis because there is no material effect on accessibility. Whether hung at 40 inches above the

26 floor or 40 Y2 inches above the floor, approximately 50% of those confined to wheelchairs would 27 be able to fully use the mirror. Bradtmiller Decl. Ex. C at 2. Requiring Taco Bell to lower the

28
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1 mirror by Y2 inch would not make it more accessible and would not advance any purposes of the

2 ADA or Title 24. See also supra at 6 (examples of equivalent facilitation).

3

Plaintiffs argue that the Court should ignore the overarching policy behind the ADA and

4 Title 24 (to provide substantial access to a majority of the disabled population), and instead require

5 precise adherence to a regulation that does not provide for absolute accessibility. Courts have

6 previously rejected this position, holding that 4minimis violations should not serve as the basis

7 for liability. See, e.g., Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 783 (D. Or.

8 1997) (denying injunctive relief requiring defendant to remount technically noncompliant visual

9 alarms when fact of noncompliance did not cause harm); Access Now, Inc. v. S. Fla. Stadium

10 Corp., 161 F. Supp. 2d 1357, 1369-70 (S.D. Fla. 2001) ("[I]njunctive relief would not be

11 appropriate for minimis violations that 'do not materially impair the use of an area for its

12 intended purpose . . . .") (citations omitted). Moreover, requiring literal adherence is contrary to

13 the legislative intent. "The Department is convinced that ADAAG as adopted in its final form is

14 appropriate for these purposes. The final guidelines, adopted here as standards, will ensure the

15 high level of access contemplated by Congress, consistent with the ADA's balance between the

16 interests of people with disabilities and the business community." 56 Fed. Reg. at 35586.

17

The Independent Living court underscored the importance of the de minimis exception in a

18 subsequent opinion in which the court again refused to grant injunctive relief for de minimis

19 violations. Indep. Living Res. v. Oregon Arena Corp., 1 F. Supp. 2d 1124 (D. Or. 1998). In

20 discussing claims relating to curb cuts and slopes, the court stated that after considering "the extent

21 to which the slopes deviate from the permissible standards, ... the danger (or lack thereof) that

22 might result from the violations, the expense of remedying the violations [and] the potential for

23 creating new violations or safety concerns as a result of efforts to modify these conditions ... the

24 court concludes that the violations are mostly de minimis and inadvertent, and the costs (and other

25 problems) associated with remedying them greatly outweigh the potential benefits to plaintiffs."

26 ]4,. at 1150-51. With respect to the slope of van accessible parking spaces, the court "[found] that

27 the deviations in these particular slopes are mostly minimis and do not materially impair usage

28
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1 of the parking spaces. Moreover, in the court's opinion, any modifications made to correct those

2 deficiencies could create new (and potentially more serious) problems." Id. at 1153.

3

The common sense approach adopted by the Independent Living court evidences that the

4 bright line rule set forth by Plaintiffs is impractical and improvident. Instead of a bright line rule

5 requiring strict adherence, courts should consider factors such as safety, cost and the potential for

6 future violations before requiring alterations to be made to elements that (1) deviate from

7 applicable standards by minimal amounts, and (2) do not materially affect accessibility.

8

The cases cited by Plaintiffs do not help their position. Plaintiffs contend that the Ninth

9 Circuit in Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001), held there could be no

10 "de minimis" exceptions to the DOJ Standards. (Pls' Mot. at 10-11.) The Ninth Circuit did no such

11 thing. In Long, plaintiffs alleged violations of the standards for bathroom doorway width in

12 defendant's standard rooms. 267 F. 3d at 921. In these rooms, the doorways were 28-inches wide

13 instead of 32-inches wide as required by the DOJ Standards. at 922. The Ninth Circuit found 14 that the 28-inch wide doors — a more than 10% variance from the standard — in fact denied access

15 to disabled persons who would have had access to the rooms had they met the DOJ Standards. The

16 Ninth Circuit specifically stated that the Court "need not decide whether the ADAforecloses the

17 possibility that a court might exercise its equitable discretion in fashioning relief for violations of

18 § 12183(a). . . because there is no room for discretion here even if it exists. This violation resulted
19 in the very discrimination the statute seeks to prevent: it denied individuals with disabilities access

20 to public accommodations." at 923. Thus, the Long holding depended on the fact that the non-

21 compliant width of the bathroom doors denied individuals with disabilities any and all access to the

22 bathrooms. The Court did not consider in Long truly de minimis violations — where there is no

23 material effect on access.

24

The second case cited by Plaintiffs is no more persuasive. In citing to Ability Center of

25 Greater Toledo v. Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001), Plaintiffs mischaracterize that

26 court's holding as rejecting a de minimis exception. Ability Center did not even address the de

27 minimis issue. Instead, the defendant in that case argued that the noncompliant curb ramps caused

28
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1 only a "slight inconvenience" because other, compliant ramps were located nearby. Id. at 592. The

2 defendant in Ability Center therefore was not arguing for a de minimis exception for the non-

3 compliant curb ramps, but rather that the plaintiff need not use them.

4

Plaintiffs' citation to United States v. AMC Entertainment, mc, 245 F. Supp. 2d 1094 (C.D.

5 Cal. 2003), similarly mischaracterizes a decision that did not discuss the 4 minimis exception. In

6 AMC, the court specifically stated that it considered the small deviation argument as part of

7 "AMC's position regarding building industry tolerances" and disregarded that position, in part,

8 because "AMC has provided no evidence regarding any applicable conventional building industry 9 tolerances." 245 F. Supp. 2d at 1100. The court never addressed a de minimis exception in its

10 holding, because the defendant in that case appeared not to have asserted the exception.

11

Although the 4 minimis exception is not codified in the same manner as the equivalent

12 facilitation exception, courts have used such an exception in a variety of contexts to ensure

13 Constitutional requirements are satisfied. See, e.g., Dixey v. Idaho First Nat'l Bank, 677 F.2d 749,
14 753 (9th Cir. 1982) ("The judiciary must not be used as a mechanical device for enforcing

15 sanctions when no real harm has been done. . . . Ifa violation is de minimis, to insist that statutory

16 penalties be awarded may contravene the constitutional rule that our jurisdiction is limited to case

17 or controversy.") (Judge Kennedy, concurring); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 523

18 (10th Cir. 1994) (holding that codified standards "doE] not mean that any slight deviation by a

19 hospital from its standard screening policy violates [the statute]. Mere de minimis variations from

20 the hospital's standard procedures do not amount to violation of hospital policy. To hold otherwise

21 would impose liabilities on hospitals for purely formalistic deviations when policy had been

22 effectively followed."). As made clear by the court in Independent Living, courts have an

23 obligation to consider all of the ramifications of the relief crafted. In this case, it does not make

24 sense for the Court to order Taco Bell to fix an element where the deviation is de minimis and there

25 is no material effect on accessibility.

26

27

28
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1

CONCLUSION

2

In the end, whether called de minimis or equivalent facilitation, when a deviation from the

3 DOJ Standards or Title 24 results in equal or greater accessibility, there can be no violation of the

4 ADA or Title 24. To hold otherwise would both put form over substance and cause businesses to

5 incur needless costs with absolutely no benefit to the disabled population. For all the foregoing

6 reasons, Taco Bell respectfully requests that this Court deny Plaintiffs' Revised Motion for Partial

7 Summary Judgment. 8 Dated: April 15, 2005

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

( 7/ / Udffr yH.Dasteel

11

Attorneys for Defendant

Taco Bell Corp.

12

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19

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368266-Los Angeles Server 1- MSW

 
 Case 3:02-cv-05849-PJH Document 176 Filed 04/29/2005 Page 1 of 18

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 Email: arob@foxrob.com
6 LAWSON LAW OFFICES Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd. Oakland, CA 94610
8 Tel: (510) 419-0940 Fax: (510) 419-0948
9 Email: tony@lawsonlawoffices.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Email: bs@impactfund.org

10 Attorneys for Plaintiffs
11

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 15

FRANCIE E. MOELLER et al, 16
Plaintiffs, 17
v. 18
TACO BELL CORP.,

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT

19 Defendant.

Date: June 3, 2005

20

Time: 9:30 a.m.

21

22

23

24

25

26

27 Case No. C 02 5849 MJJ ADR
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1 TABLE OF CONTENTS
2

3 Issues to be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 I.

There is No Legal Support for Defendant’s Interpretation of the “Equivalent Facilitation” Provision or Its Invention of A De Minimis Defense . . . . . . . . . . . . . . . . 3

6

A. The “Equivalent Facilitation” Provision Applies Only Under The

7

ADA and Only To Alternative Designs and Technologies . . . . . . . . . . . . . . . . 3

8

B. There is No De Minimis Exception to the DOJ or California Standards . . . . . . 6

9

C. Defendant Confuses the Standards Applicable to New Construction and Alterations with Those Applicable to Unaltered Existing Facilities . . . . . . 7

10 II. 11 12 13 14

Defendant’s Misuse and Distortion of Facts Underscore the Danger of Substituting Its Approach for Legally Mandated Standards. . . . . . . . . . . . . . . . . . . 10
A. Defendant Makes Assertions for Which it Invents the Data . . . . . . . . . . . . . . 11
B. Dr. Bradtmiller Makes Assertions for Which He Admits He Has No Data . . 12
C. Dr. Bradtmiller’s Analysis Is Fundamentally Flawed By The Lack of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16

17

18

19

20

21

22

23

24

25

26

27

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1

TABLE OF AUTHORITIES

2

Cases

3 Ability Center of Greater Toledo v. Sandusky,

133 F. Supp. 2d 589 (N.D. Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

4

Access Now, Inc. v. South Florida Stadium Corp.,

5

161 F. Supp. 2d 1357 (S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

6 Caruso v. Blockbuster-Sony Entertainment Centre,

193 F.3d 730 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

7

Indep. Living Res. v. Oregon Arena Corp.,

8

982 F. Supp. 698 (D. Or. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6, 7

9 Indep. Living Res. v. Oregon Arena Corp.,

1 F. Supp. 2d 1134 (D. Or. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10

Long v. Coast Resorts, Inc.,

11

267 F.3d 918 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

12 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

13

People ex rel. Deukmejian v. CHE, Inc.,

14

197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

15 United States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
16

Statutes

17

Americans with Disabilities Act

18

42 U.S.C. § 12181(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

42 U.S.C. § 12182(b)(2)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9

19

42 U.S.C. § 12183(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

42 U.S.C. § 12186(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

20

42 U.S.C. § 12204(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

21 Unruh Civil Rights Act, Cal. Civ. Code § 51(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

22 California Disabled Persons Act, Cal. Civ. Code § 54(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

23 Cal. Gov’t Code § 4452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

24 Cal. Health & Safety Code § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

25 Cal. Health & Safety Code § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26

27

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1

Regulations

2 28 C.F.R. § 36.304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

3 28 C.F.R. § 36.402(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

4 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5 Department of Justice, Standards for Accessible Design, 28 C.F.R. pt 36, app. A.

6

§ 2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5

§ 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11

7

§ 4.13.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 4.19.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8

Fig. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fig. 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

9

Preamble to Regulation on Nondiscrimination on the Basis of Disability

10

by Public Accommodations and in Commercial Facilities

(Published July 26, 1991) 28 C.F.R. pt 36, app B . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

11

Cal. Code Regs, tit. 24 (2001)

12

§ 1101B.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11

13

§ 1115B.2.1.2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fig. 11B-1D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

14

Miscellaneous 15

H. Rep. 101-485, pt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

16

Title III Technical Assistance Manual § 7.2100(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

17

Steinfeld, Edward, et al., Accessible Buildings for People with Walking

18

and Reaching Limitations at 57 (U.S. Dep’t of Housing and

Urban Dev., Office of Policy Dev. and Research 1979) . . . . . . . . . . . . . . . . . . . . . . . 13

19

20

21

22

23

24

25

26

27

28 Case No. C 02 5849 MJJ ADR
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1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 Email: arob@foxrob.com
6 LAWSON LAW OFFICES Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd. Oakland, CA 94610
8 Tel: (510) 419-0940 Fax: (510) 419-0948
9 Email: tony@lawsonlawoffices.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654 Email: bs@impactfund.org

10 Attorneys for Plaintiffs
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 14
FRANCIE E. MOELLER et al,

15

16

Plaintiffs,

Case No. C 02 5849 MJJ ADR

17 v.

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF REVISED MOTION

18 TACO BELL CORP.,

FOR PARTIAL SUMMARY JUDGMENT

19

Defendant.

20

21

Date: June 3, 2005 Time: 9:30 a.m.

22

ISSUES TO BE DECIDED

23

Whether Defendant may excuse deviations from applicable standards -- beyond those

24 that may properly be justified as “conventional building industry tolerances for field

25 conditions” -- on the grounds that such deviations are “de minimis” or constitute “equivalent

26 facilitation.”

27

28 Case No. C 02 5849 MJJ ADR
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1

ARGUMENT

2

The question presented by the parties is how best to ensure that Defendant’s restaurants

3 are accessible to people who use wheelchairs and scooters, as required by state and federal

4 statutes. Plaintiffs submit that this important goal is best achieved using the tools provided by

5 Congress and the California Legislature: the DOJ Standards1 and California Standards,2

6 developed through decades of studies, industry and community input, and field use. Taco Bell

7 asks the Court to disregard those Standards, and rely instead on an expert that Taco Bell hired

8 for this litigation who analyzed a limited number of selected studies using flawed data and

9 methods the expert himself has criticized. In one case, Taco Bell simply manufactures data and

10 argues that they should replace the legally mandated standards.

11

Plaintiffs simply request that this Court interpret and apply federal and California

12 accessibility standards as drafted, and hold:

13

! that they are -- as the plain language of the statutes states -- “minimum”

14

standards, 42 U.S.C. §§ 12186(c) & 12204(a); Cal. Gov’t Code § 4452;

15

! that deviations from these standards are justified if they fall within

16

“conventional building industry tolerances for field conditions.” DOJ Stds.

17

§ 3.2; Cal. Stds. § 1101B.4 (2001);

18

! that, under the DOJ Standards, “departures from particular technical and

19

scoping requirements” may be justified as “equivalent facilitation” only where

20

they constitute “alternative designs and technologies” that “provide substantially

21

equivalent or greater access to and usability of the facility;” DOJ Stds. § 2.2;

22

23

24

1

Dep’t of Justice, Standards for Accessible Design (“DOJ Standards” or “DOJ

Stds.”), 28 C.F.R. pt 36, app. A. 25

2

Cal. Code Regs, tit. 24 (2001) (“California Standards or “Cal. Stds.”). For the

26 period 1970 to 1981 this term shall refer to the American Standards Association specifications

A117.1- 1961. See People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 489 (Cal. Ct. 27 App. 1983).

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1

! that the California Standards do not contain a provision excusing departures

2

from requirements as “equivalent facilitation;” and

3

! that neither the DOJ Standards nor the California Standards nor the statutes

4

pursuant to which they were adopted permit a “de minimis” defense.

5

In contrast, in its attempt to substitute Taco Bell’s hired expert for the DOJ and

6 California Standards, Defendant asks this Court to ignore this plain language, to create a

7 nonexistent “de minimis” exception to the Standards, and to expand the “equivalent

8 facilitation” provision to cover -- and excuse -- violations that in no way constitute “alternative

9 designs and technologies.” This is not supported by the language of the DOJ or California

10 Standards, and -- as the systemic flaws and distortions in Defendant’s factual case demonstrate

11 -- will do nothing to ensure access. Defendant’s arguments are legally unsupported and

12 factually misguided and should be rejected in their entirety.

13 I. 14 15

There is No Legal Support for Defendant’s Interpretation of the “Equivalent Facilitation” Provision or Its Invention of A De Minimis Defense.
A. The “Equivalent Facilitation” Provision Applies Only Under The ADA and Only To Alternative Designs and Technologies.

16

Section 2.2 of the DOJ Standards reads:

17

Equivalent Facilitation. Departures from particular technical and scoping

requirements of this guideline by the use of other designs and technologies are

18

permitted where the alternative designs and technologies used will provide

substantially equivalent or greater access to and usability of the facility.

19

As Plaintiffs demonstrated in their Revised Motion for Partial Summary Judgment (“Plaintiffs’

20

Revised Motion” or “Pls.’ Rev. Mot.”), Congress intended this provision to be included in the

21

DOJ Standards because “[a]llowing these departures will provide public accommodations and

22

commercial facilities with necessary flexibility to design for special circumstances and will

23

facilitate the application of new technologies.” H. Rep. 101-485, pt. 2, at 119, reprinted in

24

1990 U.S.C.C.A.N. 303, 402. Based on the language and intent of the provision, Defendant

25

26

27

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1 must show two things to invoke this provision: (1) that a departure from the DOJ Standards3

2 involves alternative designs or technologies; and (2) that it provides substantially equivalent or

3 greater access to and usability of the facility.

4

Defendant argues that it can ignore the plain language of Section 2.2 limiting its

5 application to “alternative designs and technologies” and use that section to excuse mere

6 noncompliance with measurements already covered in the Standards. Defendant uses two

7 rhetorical tools to make this argument: it distorts the language of Section 2.2; and it misstates

8 Plaintiffs’ position.

9

The second of these is quickly dispatched. Defendant claims that Plaintiffs want to

10 eliminate section 2.2, that we want to limit it to “new technology,” and that we claim “only the

11 regulatory agencies are qualified to determine whether Section 2.2. should be applied.” (Def.’s

12 Opp’n to Pls.’ Revised Mot. for Partial Summ. J. (“Defendant’s Opposition” or “Def.’s Opp.”)

13 at 4, 8, 9.) None of these is true. Far from eliminating section 2.2, Plaintiffs urge that it be

14 applied based on its plain language, language that, as Plaintiffs make clear, restricts its reach to

15 “alternative designs and technologies,” not merely to new technology. Finally, Plaintiffs

16 nowhere suggested that a regulatory agency -- rather than this Court -- should determine what

17 constitutes equivalent facilitation. Indeed, Plaintiffs are here before this Court asking this

18 Court to clarify the requirements for equivalent facilitation so that the Parties can apply those

19 requirements in their meet and confer this summer,4 and so that this Court can apply them to

20 any elements on which the parties fail to reach agreement.

21

Defendant’s distortion of the language of Section 2.2 is stark. Rather than simply using

22 the language of the provision itself, which applies to “alternative designs and technologies,”

23 Defendant states that the first requirement for an equivalent facilitation is that “it is different

24

25

3

The California Standards do not contain an equivalent provision; thus,

departures from those Standards cannot be excused as “equivalent facilitation.” See Pls.’ Rev. 26 Mot. at 8.

27

4

See Joint Supplemental Case Management Statement and Order at 3-4.

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1 from the DOJ Standards.” (Def.’s Opp. at 5.) Defendant provides no support for its

2 substitution of the phrase “different from” -- which is not in section 2.2 -- for “alternative

3 designs and technologies” -- which is. Its motive is clear, though: to excuse violations where

4 an element’s dimensions are “different from” those required by the DOJ Standards, but do not

5 involve “alternative designs [or] technologies.”

6

An example may help illustrate the difference between the language of Section 2.2 and

7 Defendant’s proposed approach. The DOJ Standards require a certain amount of space --

8 called “maneuvering clearances” -- on the pull side of a door to permit a person in a wheelchair

9 to have room to wheel up to the door, grasp the handle, pull the door open while wheeling

10 back, and wheel through. See DOJ Stds § 4.13.6 and Fig. 25. In a situation where Taco Bell

11 has not provided the proper maneuvering clearances, Section 2.2 would permit it to install an

12 automatic door opener -- an “alternative technology” -- provided it could show that the solution

13 afforded substantially equivalent or greater access.

14

Under Defendant’s approach, in contrast, “equivalent facilitation” does not mean

15 installing an automatic door where there are noncompliant maneuvering clearances. It means

16 hiring an expert after the fact to justify the noncompliant maneuvering clearances. Based on its

17 plain language and legislative history, this is not what the “equivalent facilitation” provision

18 was intended to do.

19

The two examples Defendant finds in case law and regulations are in keeping with the

20 example of the automatic door opener and provide no support for Defendant’s approach: a

21 hotel may make a portable text telephone available at the desk rather than installing a

22 permanent one at the pay phone; and an arena may use folding chairs in lieu of fixed seats for

23 the companions of patrons who use wheelchairs. (See Def.’s Opp. at 5, citing Title III

24 Technical Assistance Manual § 7.2100(2) and Indep. Living Res. v. Oregon Arena Corp., 982

25

26

27

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1 F. Supp. 698, 727 (D. Or. 1997).)5 After three tries,6 Taco Bell has not yet identified a single

2 case in which a defendant has been permitted to introduce anthropometric or other data to

3 argue that a measurement that merely falls short of the DOJ Standards constitutes “equivalent

4 facilitation.”

5

B. There is No De Minimis Exception to the DOJ or California Standards.

6

Under California law, buildings constructed or altered after July 1, 1970 have been

7 required to comply with the California Standards applicable at the time. See Moeller v. Taco

8 Bell Corp., 220 F.R.D. 604, 607 (N.D. Cal. 2004) (citing Cal. Health & Safety Code §§ 19956

9 & 19959). Under the Americans with Disabilities Act (“ADA”), buildings built after January

10 26, 1993 and alterations performed after January 26, 1992 have been required to comply with

11 the DOJ Standards. 42 U.S.C. § 12183(a); 28 C.F.R. § 36.402(a)(1). Neither set of Standards

12 contains an exception for de minimis violations.

13

Plaintiffs have cited binding Ninth Circuit precedent that rejects Defendant’s argument

14 for a de minimis exception, Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001), as

15 well as cases from two other district courts doing the same. United States v. AMC Entm’t,

16 Inc., 245 F. Supp. 2d 1094, 1100 (C.D. Cal. 2003), Ability Center of Greater Toledo v.

17 Sandusky, 133 F. Supp. 2d 589, 592 (N.D. Ohio 2001). Defendant’s attempt to distinguish

18 these cases fails.

19

Defendant tries to avoid Long’s holding by misstating the factual record on which it

20 was based. (See Def.’s Opp. at 12.) Plaintiffs have previously addressed this, and will not

21

22

23

5

In the other case cited by Defendant, Caruso v. Blockbuster-Sony Entertainment

24

Centre, 193 F.3d 730 (3d Cir. 1999), the court refused to apply the “equivalent facilitation” provision to excuse an outdoor arena’s failure to provide wheelchair access to the lawn seating

25 area. Id. at 739.

26

6

Def.’s Opp’n to Pls.’ Mot. for Partial Summ. J. and Conditional Cross Mot. for

Partial Summ. J. at 22; Def.s’ Opening Brief on Issues 1(c) and 1(d) of the Joint Pre-Trial

27 Briefing Schedule (“Defendant’s Opening Brief”) at 8-10; Def.’s Opp. at 3-8.

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1 repeat their argument here. (See Pls.’ Opp’n to Def.’s Opening Br. on Issues 1(c) and 1(d) of

2 the Joint Pre-Trial Briefing Schedule (“Plaintiffs Opposition” or “Pls.’ Opp.” at 5-6).)

3

Defendant asserts that the AMC case “did not discuss the de minimis exception.”

4 (Def.’s Opp. at 13.) This is a semantic game. The court did not use the phrase “de minimis,”

5 but rejected the defendant’s argument that “the Court should shave half an inch or an inch off

6 [the] articulated minimums” of the DOJ Standards. Id. at 1100. In so doing, it rejected

7 precisely the argument Defendant makes here.

8

Ability Center held that a one and one-half inch violation on a curb cut made it

9 noncompliant despite the defendant’s assertion that it caused “slight inconvenience to the

10 user.” Defendant argues that the “inconvenience” at issue related not to the small deviation

11 from the Standards but to the fact that other curb cuts existed nearby. (Def.’s Opp. at 12-13.)

12 This ignores the fact that the court recited the applicable dimensional standards and held

13 “[t]here are no exceptions allowed to these requirements.” Id. at 592.

14

Finally, as noted in Plaintiffs’ Opposition, the Independent Living Resources cases, 982

15 F. Supp. 698 (D. Or. 1997) and 1 F. Supp. 2d 1134 (D. Or. 1998), in which Defendant finds a

16 “de minimis” exception, both predated Long, and were therefore effectively overruled by that

17 case. (See also Pls.’ Opp. at 8.)

18

C. Defendant Confuses the Standards Applicable to New Construction and

Alterations with Those Applicable to Unaltered Existing Facilities.

19

The question before the Court is the application of the DOJ Standards and California

20

Standards to new construction and alterations. (See, e.g., Def.’s Opp. at 2, citing 42 U.S.C.

21

§§ 12183(a)(1); 28 C.F.R. § 36.402(a)(1).) As explained above, new construction and

22

alterations are required to comply with the DOJ and/or California Standards. See supra at 6.

23

The ADA also contains a requirement that barriers be removed from “existing facilities” --

24

25

26

27

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1 facilities built before its new construction date -- if it is “readily achievable” to do so. 42

2 U.S.C. § 12182(b)(2)(A)(iv). California law does not contain an equivalent requirement.7

3

Virtually all of the elements in all of the restaurants in this case will be analyzed under

4 the new construction or alterations standards. This is because approximately 200 of the 220

5 restaurants at issue here were built after 1970 -- the date on which new and altered California

6 buildings were first required to comply with the California Standards -- and virtually all 220

7 have been altered since that time. Thus the ADA’s “readily achievable” standard will apply to

8 only a very few elements in a very few restaurants.

9

The ADA’s “readily achievable” standard considers two types of evidence that are not

10 relevant to the application of the DOJ or California Standards to new construction or

11 alterations. In unaltered existing facilities, a court may consider whether an element is a

12 barrier, 42 U.S.C. § 12182(b)(2)(A)(iv), and may consider financial factors such as the cost to

13 remove the barrier and the defendant’s resources. Id. § 12181(9). The Ninth Circuit has

14 explicitly held that these factors are not relevant when analyzing new construction. Long, 267

15 F.3d at 923 (“No Substantial Compliance or Undue Burden Exception”).

16

Defendant confuses these standards. In attempting to introduce improper exceptions in

17 the application of the DOJ and California Standards to new construction or alterations,

18 Defendant cites regulatory language and case law that in fact address the application of the

19 “readily achievable” provision to unaltered existing facilities. For example, Defendant

20 announces that “the ADA was intended to strike a balance between access and the cost of doing

21 business” and cites 28 C.F.R. § 36.304. The language quoted by Defendant comes from the

22 commentary to the regulations, rather than from section 36.304 itself. See Preamble to

23 Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in

24 Commercial Facilities (Published July 26, 1991) (“Preamble”), 28 C.F.R. pt 36, app B at 687

25

7

Although the Unruh Civil Rights Act and the California Disabled Persons Act

26 both state that a violation of the ADA is a violation of that statute, see Moeller, 220 F.R.D. at

607 (citing Cal. Civ. Code §§ 51(f) & 54(c)), neither statute includes an independent 27 requirement of barrier removal in pre-1970 buildings.

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1 (2002). And this commentary is making the precise point that Plaintiffs are here: different

2 standards apply in new construction and alterations, on the one hand, and existing facilities, on

3 the other. The entire quote reads:

4

In striking a balance between guaranteeing access to individuals with disabilities

and recognizing the legitimate cost concerns of businesses and other private

5

entities, the ADA establishes different standards for existing facilities and new

construction. In existing facilities, which are the subject of § 36.304, where

6

retrofitting may prove costly, a less rigorous degree of accessibility is required

than in the case of new construction and alterations (see §§ 36.401-36.406)

7

where accessibility can be more conveniently and economically incorporated in

the initial stages of design and construction.

8

Id. (emphasis added). Section 36.406, to which this passage refers, unambiguously requires

9

new construction and alterations to comply with the DOJ Standards.

10

Defendant also relies on the case of Access Now, Inc. v. South Florida Stadium Corp.,

11

161 F. Supp. 2d 1357 (S.D. Fla. 2001). (See Def.’s Opp. at 11.) This case analyzed an existing

12

facility under the “readily achievable” provision. Id. at 1360, 1362-63. The court made the

13

distinction clear: “[f]ailure to abide by the [DOJ Standards] in new construction evidences

14

intentional discrimination against disabled persons,” id. at 1362, while in existing facilities, it

15

constitutes only a rebuttable presumption of a barrier. Id. at 1368. Thus it is only with respect

16

to an existing facility -- indeed, in a section titled “Readily achievable” -- that the court used

17

the language quoted by Defendant concerning de minimis violations. Id. at 1369-70, quoted in

18

Def.’s Opp. at 11. Similarly, the passage quoted in footnote 7 of Defendant’s Opposition is, as

19

the text makes clear, addressing existing facilities.

20

Ultimately, Defendant’s de minimis defense will be valid only in analyzing unaltered

21

existing facilities under the ADA -- a very small fraction of the elements in this case. In that

22

context, it will be one of a number of factors this Court will consider. See 42 U.S.C.

23

§§ 12181(9) & 12182(b)(2)(A)(iv). With respect to the vast majority of post-1970

24

construction or alterations (under California law), and post-1992 alterations and post-1993

25

construction (under the ADA), there is no authority for such an exception.

26

27

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1 II. Defendant’s Misuse and Distortion of Facts Underscore the Danger of Substituting
Its Approach for Legally Mandated Standards. 2
Defendant’s Opposition Brief is full of grandiose recitations of the purposes of the 3
ADA and California access laws and pronouncements that it is Taco Bell -- and not Plaintiffs -4
who care deeply about ensuring access. (See, e.g., Def.’s Opp. at 1, 3, 6, 8, 10, 11). Ironically, 5
however, the present discussion concerns Defendant’s violations of Standards developed to 6
ensure access, and the only evidence on which Defendant proposes to rely to justify these 7
violations will do nothing whatsoever to achieve its professed goals. Taco Bell’s evidence is 8
methodologically weak, factually unsupported and -- in one case -- simply invented out of 9
whole cloth by Taco Bell itself. Even if Taco Bell’s arguments were not completely legally 10
unsupported, the flaws in its proposed factual approach would require that they be rejected. 11
Defendant proposes to rely on anthropometric evidence prepared by Bruce Bradtmiller, 12
Ph.D., to excuse its violations of the Standards. (See Def.’s Opp. at 6 n.6.) Dr. Bradtmiller’s 13
work in this case relies on both data and methods that he himself has criticized as unreliable. 14
(See Pls’ Opp. at 9-12.) Several of the examples -- mirrors, grab bars, sinks -- in Defendant’s 15
brief show how this process is susceptible to error and distortion. Ultimately, this lawsuit is 16
about more than just mirrors, grab bars and sinks, as Defendant proposes to analyze each 17
element at issue in this case using Dr. Bradtmiller’s method.8 And Plaintiffs are not suggesting 18
that Dr. Bradtmiller is unique in the inadequacy of his data and methods, or that Defendant 19
should hire someone with better data or methods. Instead, the flaws in Defendant’s examples 20
reveal flaws that are endemic to any attempt to tailor anthropometric analysis to the needs of 21
one party to a specific litigation. There is no ad hoc analysis that would be superior to the DOJ 22
and California Standards. 23

24

25

26

8

See Defendant’s Opening Brief at 9 (“Whether an element as-built provides

substantially equivalent access for the disabled is a question of fact to be determined on an 27 element-by-element basis.”)

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1

A. Defendant Makes Assertions for Which it Invents the Data.

2

Taco Bell’s analysis of mirror height requires it to invent numbers that Dr. Bradtmiller

3 did not provide. Taco Bell claims that:

4

the mirror in the men’s restroom in Store No. 2755 was mounted at 40½ inches

above the floor, ½ inch above the 40 inch DOJ Standard. The ½ inch

5

discrepancy is de minimis because there is no material effect on accessibility.

Whether hung at 40 inches above the floor or 40½ inches above the floor,

6

approximately 50% of those confined [sic] to wheelchairs would be able to fully

use the mirror. See Bradtmiller Decl. Ex. C at 2.

7

(Def.’s Opp. at 10.)9

8

Nothing in Dr. Bradtmiller’s declaration supports this assertion. Specifically, he does

9

not address either the height of the mirror in the men’s restroom in store 2755, or the number of

10

people accommodated by a mirror at 40½ inches. (See Bradtmiller Decl. Ex. C at 1-4, and

11

Decl. of Amy F. Robertson in Supp. of Pls.’ Revised Mot. for Partial Summ. J. (“Robertson

12

Decl.”) ¶¶ 2-10.) Thus there is no basis in Dr. Bradtmiller’s data for Taco Bell’s assertion that

13

“whether hung at 40 inches . . . or 40½ inches . . . approximately 50%” of people who use

14

wheelchairs would be able to use the mirror.

15

In fact, several of Dr. Bradtmiller’s estimates make it highly unlikely that Taco Bell’s

16

assertion is even close to accurate. Dr. Bradtmiller opines that a mirror hung at:

17

! 40 inches “accommodates” 51.9%;10

18

! 41 inches “accommodates” 28.4%;11 and

19

! 41½ inches “accommodates” 0.04%.12

20

21

22

9

This deviation may be within “conventional building industry tolerances for

23 field conditions” see DOJ Stds. § 3.2; Cal. Stds. § 1101B.4, and thus may not require

adjustment. 24

10 Bradtmiller Decl. Ex. C at 2, 4. 25

11 See Robertson Decl. ¶¶ 3 & 9 and Exs. 1 & 7, and Bradtmiller Decl. Ex. C at 4 26 (stores 112 and 15914).

27

12 See Robertson Decl. ¶ 7 and Ex. 5 and Bradtmiller Decl. Ex. C at 4 (store 3579).

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1 Given the steep decline in accommodation as mirror height moves from 40 to 41 to 41½

2 inches -- from 51.9% to 0.04% -- it would seem unlikely that “approximately 50%” would be

3 accommodated at 40½ inches. Here, Taco Bell is not arguing for using flawed anthropometric

4 data to second-guess the Standards; it is pulling numbers out of thin air to excuse its violations.

5

B. Dr. Bradtmiller Makes Assertions for Which He Admits He Has No Data.

6

Another example on which Defendant relies is knee clearance under a lavatory, that is,

7 a sink. (See Def.’s Opp. at 3.) Both DOJ and California Standards regulate knee clearance

8 under a sink eight inches back from the front edge.13 This ensures that the slope of the bowl

9 does not obstruct the ability of a person in a wheelchair to roll under the sink to use it. Dr.

10 Bradtmiller admits that

11

[l]avatory knee clearance at 8" from rim has no anthropometric data. Instead,

the regular knee height is taken, which means that the percentage of subjects

12

who roll the full 8" under the sink is unknown. It is impossible to estimate this

percentage, since the amount of roll is dependent on stomach depth, arm

13

length, arm mobility and trunk mobility.

14 Bradtmiller Decl. ¶ 16(c). Despite the fact that there are “no anthropometric data” and it is

15 “impossible to estimate” the percentage who can roll the full eight inches under the sink, Dr.

16 Bradtmiller provides his opinion on the percentage “accommodated” by certain knee clearances

17 at eight inches. See id. Ex. C at 2, 4. He is, by his own admission, offering an opinion for

18 which he has no data.

19

C. Dr. Bradtmiller’s Analysis Is Fundamentally Flawed By The Lack of

Defined Terms. 20

In its Opposition Brief, Defendant repeats the grab bar example from its Opening Brief;

21

Plaintiffs have already addressed the merits of this example in their Opposition Brief. (See

22

Pls.’ Opp. at 11-12.) Dr. Bradtmiller’s analysis of grab bars illustrates a problem that pervades

23

his work for Defendant and renders it useless to Defendant’s arguments and completely

24

inappropriate as a substitute for the regulatory process.

25

26

27

13 DOJ Stds. § 4.19.2 & Fig. 31; Cal. Stds. 1115B.2.1.2.1 & Fig. 11B-1D (2001).

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1

Dr. Bradtmiller purports to analyze how many people are “accommodated” by

2 compliant and noncompliant features. (See Bradtmiller Decl. ¶¶ 6, 9, 10, 12-16, 20, Ex. C at 1-

3 5.) Yet neither Dr. Bradtmiller nor Taco Bell ever defines the term “accommodate.” It is,

4 perhaps, easy to imagine what the term might mean with respect to a dimension like door

5 width: if you get through, you are accommodated; if not, not. Ideally, even used in this context,

6 the term should have greater specificity concerning, for example, individuals who can get

7 through a door, but only with scraped knuckles.

8

With other dimensions, Dr. Bradtmiller’s meaning is even less clear. With respect to

9 grab bar height, for example, it is unclear whether “accommodate” means or includes “useable

10 at all,” “useable but with difficulty,” “useable comfortably,” and/or “preferred.” In Dr.

11 Bradtmiller’s analysis of grab bar height, this is a crucial distinction. Grab bars are metal bars

12 installed to the sides and/or rear of a toilet that a person with a disability can use for leverage in

13 transferring to the toilet. The study on which Dr. Bradtmiller relied asked subjects to “select[ ]

14 bar heights with which they felt comfortable.”14 Fifty-nine percent felt comfortable at 36

15 inches; 32% at 33 inches, 2% at 30 inches and 7% at 27 inches.15 From this data, Dr.

16 Bradtmiller draws the conclusion that Taco Bell’s noncompliant 37-inch-high grab bars

17 “accommodate” 96.7% of people who use wheelchairs.16 This compares apples to oranges:

18 Even if Dr. Bradtmiller’s analytical method were acceptable, it cannot be applied to data

19 measuring one thing (comfort) to yield a conclusion purporting to measure something else

20 entirely (accommodation).

21

22

14 Steinfeld, Edward, et al., Accessible Buildings for People with Walking and

Reaching Limitations at 57 (U.S. Dep’t of Housing and Urban Dev., Office of Policy Dev. and 23 Research 1979) (“Steinfeld (1979)”); see Bradtmiller Decl. ¶ 16(c) (stating that in analyzing

grab bar heights, “Steinfeld’s preference data were used.”). 24

15 Id. at 64-65 and Robertson Decl. ¶ 12. 25

16 As Plaintiffs pointed out in their Opposition Brief, Dr. Bradtmiller has no 26 empirical data concerning grab bars at 37 inches. To the extent he is using the statistical

method described in his declaration to estimate this number, it has several flaws that he himself 27 has recognized elsewhere. Pls.’ Opp. at 11-12.

28 Case No. C 02 5849 MJJ ADR
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1

In the case of grab bar height -- and specifically grab bars that are higher than permitted

2 by Standards, such as those in Defendant’s example -- this method can yield incoherent results.

3 This is because taller people may “feel comfortable” with higher grab bars, but still be able to

4 use lower ones, while shorter people may “feel comfortable” with lower grab bars, but be

5 unable to use higher ones. Ultimately, we don’t know, for the simple reason that the study on

6 which Dr. Bradtmiller relies did not test the factor for which he cites it.

7

This flaw contaminates all of Dr. Bradtmiller’s work, and renders his conclusions

8 meaningless. These meaningless and flawed conclusions cannot be used to supplant decades of

9 fully-researched, publicly-developed and legally-mandated accessibility standards.

10

CONCLUSION

11

Plaintiffs respectfully request that this Court hold that Taco Bell’s violations of

12 applicable dimensional standards may only be justified as “conventional building industry

13 tolerances for field conditions,” and may not be excused as “de minimis” or analyzed as

14 “equivalent facilitation.”

15
Respectfully submitted, 16
FOX & ROBERTSON, P.C. 17

18

19
20
21
22
23 Dated: April 29, 2005
24

By:

/s/ Amy F. Robertson

Amy F. Robertson, pro hac vice

Timothy P. Fox, Cal. Bar No. 157750

910 - 16th Street

Suite 610

Denver, Colorado 80202

Tel: (303) 595-9700

Fax: (303) 595-9705

Attorneys for Plaintiffs

25

26

27

28 Case No. C 02 5849 MJJ ADR
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1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
Ari Krichiver, Pro Hac Vice
3 910 - 16th Street, Suite 610
Denver, Colorado 80202
4 Tel: (303) 595-9700
Fax: (303) 595-9705
5 Email: tfox@foxrob.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net

6 LAWSON LAW OFFICES
Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd.
Oakland, CA 94610
8 Tel: (510) 419-0940
Fax: (501) 419-0948
9 Email: tony@lawsonlawoffices.com
10
Attorneys for Plaintiffs
11

THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

15

FRANCIE E. MOELLER et al,

16 Plaintiffs,

Case No. C 02 5849 MJJ ADR

17 v.

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.

18

TACO BELL CORP., 19
Defendant.

Hearing Date: May 17, 2007

Time:

9:30 a.m.

20

21

22

23

24

25

26

27

28
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1

TABLE OF CONTENTS

2

3 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Relief Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 Points and Authorities in Support of Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

6 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

7 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

8 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

10 I. Applicable Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

11

A. Partial Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

12

B. The Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

13

C. California State Law Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

14

1. The California Disabled Persons Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

15

2. The Unruh Civil Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

16

D. Tolerances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

17 II. 18 19 20 21

The Queue Lines in the Restaurants Listed in Exhibits 1 and 2 Are In Violation of Applicable New Construction Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. The Queue Lines In Exhibit 1 Are in Buildings Built Between December 31, 1981 and January 26, 1993, and Are In Violation of Title 24 and thus the CDPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. The Queue Lines in Exhibit 2 Are In Buildings Built After January 26, 1993 And Are In Violation of the ADA, the CDPA and Unruh . . . . . . . . . . . . . . . . 12

22

1. The Department of Justice has Concluded that Taco Bell's Queue Lines

Violate the DOJ Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

23

2. Taco Bell's Queue Lines Violate the DOJ Standards . . . . . . . . . . . . . . 12

24

C. Taco Bell's Auxiliary Access for Persons Who Use Wheelchairs or Scooters

25

Violates the ADA and California Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

26

1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

27

2. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by

Denying Them the Opportunity to Benefit from its Queue Lines . . . . 16

28

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1
2 III.
3

3. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by Segregating Them from Nondisabled Patrons . . . . . . . . . . . . . . . . . . . 17
The Doors Listed in Exhibits 3, 4 and 5 Are In Violation of Applicable New Construction Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4

A. The Interior Doors in Exhibit 3 Are In Buildings Built After January 26, 1993

And Are In Violation of the ADA, the CDPA and Unruh . . . . . . . . . . . . . . . . 20

5

B. The Interior Doors in Exhibit 4 Are In Buildings Built Between December 31,

6

1981 and January 26, 1993 And Are In Violation of Title 24

and thus the CDPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

7

C. The Exterior Doors in Exhibit 5 Are In Buildings Built After December 31,

8

1981 And Are In Violation of Title 24 and thus the CDPA . . . . . . . . . . . . . . 21

9 IV. 10 11

The Accessible Seating in the Indoor Dining Areas of the Restaurants Listed in Exhibits 6, 7 and 8 Are In Violation of Applicable New Construction Standards . . . 22
A. The Fixed Accessible Seating In Exhibits 6 and 7, in Buildings Built After January 26, 1993, Violates the ADA, the CDPA and Unruh . . . . . . . . . . . . . . 22

12

B. The Accessible Seating In Exhibit 8 Is In Violation of Title 24 and thus the

CDPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2

3

Cases

4 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) . . . . . . passim

5 Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) . . . . . . . . . 7

6 Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

7 Basiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8 Boemio v. Love’s Rest., 954 F. Supp. 204 (S.D. Cal.1997) . . . . . . . . . . . . . . . . . . . . . . . . 8, 17

9 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

10 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999) . . 10

11 Donald v. Café Royale, Inc., 266 Cal. Rptr. 804 (Cal. Ct. App. 1990) . . . . . . . . . . . . . . . 5, 6, 7

12 Donald v. Sacramento Valley Bank, 260 Cal. Rptr. 49 (Cal. Ct. App. 1989) . . . . . . . . . . . . 6, 7

13 Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) . . . . . . . . . . . . . . . 5

14 Gen. Motors Corp. v. Doupnik, 1 F.3d 862 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

15 Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 8-9

16 Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997) . . . . . . . . . . . . . . 9

17 Indep. Living Res. v. Oregon Arena Corp., 1 F. Supp.2d 1124 (D. Or. 1998) . . . . . . . . . . . . 19

18 Lentini v. California Center for the Arts, 370 F.3d 837 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . 8

19 Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

20 Mannick v. Kaiser Foundation Health Plan, Inc., C 03-5905 PJH,

2006 WL 2168877 (N.D. Cal. July 31, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

21

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 5

22

Neighborhood Ass’n Of The Back Bay, Inc. v. Fed. Transit Admin.,

23

463 F.3d 50 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

24 Org. for Advancement of Minorities with Disabilities v. Brick Oven Rest.,

406 F. Supp. 2d 1120 (S.D. Cal.2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25

People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . 6, 18

26

Pickern v. Best Western Timber Cove Lodge Marina Resort,

27

194 F. Supp. 2d 1128 (E.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28

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1 Sapp v. MHI P’ship, Ltd., 199 F. Supp. 2d 578 (N.D. Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . 4

2 United States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . 4, 9

3 Williams v. Union Carbide Corp., 790 F.2d 552 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 10

4 Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054 (E.D. Cal. 2006) . . . . . . . . . . . . . . 8

5 Wyatt v. Ralphs Grocery Co., No. SACV001260DOCEEX,

2002 WL 32985831 (C.D. Cal. Feb. 21, 2002),

6

aff’d 2003 WL 1193809 (9th Cir. Mar. 14, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

7 Zurich American Ins. Co. v. Whittier Props. Inc., 356 F.3d 1132 (9th Cir. 2004) . . . . . . . . . 12

8 Statutes
9 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17
10 42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 18
12 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
13 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
14 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
15 Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
16 Cal. Civ. Code § 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
17 Cal. Health & Safety Code § 19953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
18

19

Regulations and Other Authorities

20 28 C.F.R. § 36.211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19

21 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

22 Standards for Accessible Design, 28 C.F.R. pt. 36, app. A . . . . . . . . . . . . . . . . . . . . . . . passim

23 “Preamble to Regulation on Nondiscrimination on the Basis of

Disability by Public Accommodations and in

24

Commercial Facilities,” 28 C.F.R. pt. 36, app. B (2005) . . . . . . . . . . . . . . . . . . . . . . . 19

25 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

26 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

27 H. Rep. 101-485, Pt. 3, 101st Cong., 2nd Sess. 71, reprinted in

1990 U.S.C.C.A.N. 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

28

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1 H. Rep. 101-485, Pt. 2, 101st Cong., 2nd Sess. 102, reprinted in 1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2 Assembly Committee on Judiciary, Report on AB1077 (as amended January 6, 1992) . . . . . . 8
3 Senate Committee of Judiciary report on AB 1077 (as amended June 1, 1992) . . . . . . . . . . . . 9
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

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1

NOTICE

2

On May 17, 2007, at 9:30 a.m., or as soon thereafter as this motion may be heard,

3 before the Honorable Martin J. Jenkins, Plaintiffs will, and hereby do, move for an order

4 granting partial summary judgment in the above-captioned action. This motion is based on this

5 Notice of Motion, and all accompanying attachments hereto.

6

RELIEF SOUGHT

7

Plaintiffs seek a determination that Defendant has violated the Americans with

8 Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the California Disabled Persons Act, Cal.

9 Civ. Code § 54 et seq. (the “CDPA”), and/or California’s Unruh Civil Rights Act, Cal. Civ.

10 Code § 51 et seq. (“Unruh” or “the Unruh Act”).

11

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

12

ISSUES TO BE DECIDED

13

Whether Plaintiffs are entitled to partial summary judgment pursuant to Rule 56 of the

14 Federal Rules of Civil Procedure as to three architectural issues found in 180 restaurants that

15 are out of compliance with new construction standards applicable at the time each restaurant

16 was built.

17

SUMMARY OF ARGUMENT

18

Plaintiffs seek partial summary judgment on three discrete architectural issues that have

19 a significant impact on the overall accessibility of the Taco Bell corporate restaurants at issue

20 in this litigation: (1) the dimensions of queue lines, which are the barriers that are put in place

21 to cause customers to form a single line as they approach the counter, order, and pick up their

22 food; (2) the force necessary to open interior and exterior doors; and (3) the number of, and

23 knee clearance at, accessible seating positions at indoor dining areas in Defendant’s restaurants.

24

The architectural barriers targeted by this Motion affect the great majority of restaurants

25 at issue in this case. Plaintiffs seek summary judgment as to the queue lines in 77 restaurants,

26 the door force in 171 restaurants, and indoor accessible seating in 54 restaurants. (See

27 Declaration of Timothy P. Fox (“Fox Decl.”) at ¶¶ 4, 8 & 12.) Of the approximately 220

28

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1 restaurants involved in this case, 180 have one or more of the architectural violations covered

2 by this Motion. (See id. at ¶ 13.)

3

This Motion relies on a limited set of access regulations. Although both the ADA and

4 California access regulations have certain requirements applicable to alterations to existing

5 architectural elements, and the ADA requires readily achievable barrier removal of unaltered

6 facilities constructed prior to January 26, 1993, this Motion does not rely on either the

7 alterations or readily achievable regulations.

8

Rather, this motion is limited to architectural elements that are in violation of applicable

9 new construction standards, that is, violations in restaurants that were built: (1) after January

10 26, 1993 and were thus subject to the “new construction” regulations under the ADA; and/or

11 (2) after December 31, 1981 and thus were subject to California access regulations in affect at

12 the time of construction. In addition, Plaintiffs’ argument that the force necessary to open

13 interior and exterior doors at Defendant’s restaurants exceeds state and federal limits relies in

14 part on the requirement that public accommodations maintain accessible features in operable

15 working condition.

16

As set forth below, because the undisputed facts demonstrate that these architectural

17 elements are in violation of state and/or federal access regulations, Plaintiffs are entitled to

18 summary judgment.

19

FACTS

20

The instant Motion is based on the measurements reported by the Special Master in his

21 Interim Survey Reports. Pursuant to the Court’s September 19, 2006 Order, these reports were 22 filed with the Court on December 14, 2006, and Exhibits 1 through 8 to the Fox Declaration1

23 reference the exhibit, store and line number from that filing.

24

Defendant has had the opportunity to object to these reports. It has not objected to or

25 otherwise challenged any of the Special Master’s queue line measurements or the number of

26

27

1

All references to exhibit numbers throughout the brief refer to Exhibits to the

28 Declaration of Timothy P. Fox, filed concurrently with this motion.

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1 accessible seating positions in any restaurant. (See generally Def. Taco Bell Corp.’s

2 Objections to Special Master’s Interim Survey Reports (filed Jan. 12, 2007).) Defendant

3 objected to the knee clearance measurement at a single restaurant. (Id. at 103.) Plaintiffs do

4 not move for summary judgment as to this measurement.

5

Defendant posed several general objections concerning door force. (See id. at 77-80,

6 89, 117-19, 289-92.) However, most of these objections raised legal issues, for example,

7 whether exterior door force -- a standard that appears only in California and not federal access

8 regulations -- can be raised in this litigation (see, e.g., id. at 77-78, 117-18, 289-90), and

9 whether concerns raised by the federal Access Board are applicable to this California state

10 standard. (See, e.g., id. at 78-79, 118-19, 290-91.) The only ostensibly factual objection

11 Defendant made was that the Special Master’s methodology was uncertain, but Defendant

12 concluded that this meant that “an appropriate tolerance should be taken into consideration.”

13 (Id. at 79, 119, 291.) In compiling the lists of restaurants with door force violations, Plaintiffs

14 have applied tolerances that were either stipulated by the parties or were based on Defendant’s

15 suggestion. See infra at 12, 20-22.

16

The only specific objections Defendant raised as to door force concerned the women’s

17 restrooms in Stores 112, 1603 and 3071. (See id. at 291-92.) Plaintiffs do not move for

18 summary judgment as to the door force in the women’s restroom at the those restaurants.

19

As explained in greater detail below, the date on which each restaurant was constructed

20 dictates the new construction standard applicable to that restaurant. The parties have stipulated

21 to those construction dates. (See generally attachment to Pls.’ Submission of Agreements

22 Reached by the Parties (“Agreements Reached”) , filed December 14, 2006.)

23

ARGUMENT

24 I. Applicable Legal Standards

25

A. Partial Summary Judgment.

26

Summary judgment is appropriate where “the pleadings, depositions, answers to

27 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

28

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1 genuine issue as to any material fact and that the moving party is entitled to judgment as a

2 matter of law.” Fed. R. Civ. P. 56(c). A plaintiff may move for summary judgment in his

3 favor “upon all or any part” of his claim. Id. Rule 56(a). “A summary judgment, interlocutory

4 in character, may be rendered on the issue of liability alone although there is a genuine issue as

5 to the amount of damages.” Id. Rule 56(c); see also id. Rule 56(d) (permitting the Court, when

6 not rendering judgment upon the whole case, to issue an order “specifying the facts that appear

7 without substantial controversy”).

8

A number of courts have held that partial summary judgment is appropriate where a

9 plaintiff has demonstrated -- through undisputed facts -- violations of accessibility standards

10 applicable under the ADA . See, e.g., Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24, 926

11 (9th Cir. 2001) (affirming in part district court’s decision granting partial summary judgment to

12 plaintiffs based on an application of ADA accessibility standards to stipulated facts); United

13 States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094, 1101 (C.D. Cal. 2003) (granting partial

14 summary judgment to plaintiffs based on an application of ADA accessibility standards to

15 undisputed dimensional information in plaintiffs’ expert’s report); Sapp v. MHI P’ship, Ltd.,

16 199 F. Supp. 2d 578, 583 (N.D. Tex. 2002) (granting partial summary judgment to plaintiffs

17 based on an application of ADA accessibility standards to undisputed facts).

18

B. The Americans with Disabilities Act.

19

Title III of the ADA prohibits disability discrimination by those who own or operate

20 places of public accommodation -- such as Taco Bell restaurants2 -- “in the full and equal

21 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of that

22 public accommodation. 42 U.S.C. § 12182(a). Title III requires that Taco Bell provide its

23 goods and services to persons with disabilities in an integrated setting, id. § 12182(b)(1)(B),

24 and that such persons be provided with equal opportunity to participate in and benefit from its

25 stores. Id. §§ 12182(b)(1)(A)(i) - (iii).

26

27

2

See 42 U.S.C. § 12181(7)(B) (restaurants are places of public accommodation

under title III). 28

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1

Title III also addresses architectural accessibility. All facilities built for first occupancy

2 after January 26, 1993 are required to be “readily accessible to and usable by” individuals with

3 disabilities. Id. § 12183(a)(1). To comply with section 12183(a)(1), a facility must be built in

4 conformance with the Department of Justice Standards for Accessible Design (“DOJ 5 Standards” or “DOJ Stds.”).3 28 C.F.R. pt. 36, app. A; see 28 C.F.R. § 36.406(a) (requiring 6 conformance with the Standards).4 The DOJ Standards contain detailed design specifications

7 for public accommodations covering a variety of architectural elements, including, as relevant

8 here, queue lines, accessible seating areas, and the force necessary to open interior doors. See

9 generally 28 C.F.R. pt. 36, app. A; see also Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606

10 (N.D. Cal. 2004). In addition, a public accommodation must “maintain in operable working

11 condition those features of facilities and equipment that are required to be” accessible under the

12 ADA. 28 C.F.R. § 36.211(a).

13

C. California State Law Claims.

14

1. The California Disabled Persons Act.

15

The CDPA was enacted in 1968 and generally prohibits discrimination on the basis of

16 disability by public accommodations. See Cal. Civ. Code § 54.1. Plaintiffs are not required to

17 prove intent to establish a violation of the CDPA. See, e.g., Donald v. Café Royale, Inc., 266

18 Cal. Rptr. 804, 811 (Cal. Ct. App. 1990) (“section 54.3 contains no intent element”); Org. for

19 Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp. 2d 1120

20 1129-30 (S.D. Cal.2005); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 459

21 (N.D. Cal. 1994).

22

23

24

3

The Americans with Disabilities Act Architectural Guidelines (“ADAAG”),

promulgated by the Architectural and Transportation Barriers Compliance Board, were adopted 25 by the DOJ as its Standards for Accessible Design. See Fortyune v. American Multi-Cinema,

Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). As a result, many cases applying the DOJ Standards

26 refer to them as “the ADAAG.”

27

4

The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott,

524 U.S. 624, 646 (1998). 28

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1

A violation of the ADA constitutes a violation of the CDPA. Cal. Civ. Code §§ 54(c)

2 & 54.1(d). As such, Plaintiffs are entitled to summary judgment under the CDPA as to those

3 elements that violate the ADA, which are discussed in sections II.B, III.A and IV.A below, and

4 listed in Exhibits 2, 3, 6 and 7.

5

Plaintiffs’ CDPA claims are also based in part on Defendant’s violations of Title 24 of

6 the California Code of Regulations (“Title 24”).5 Title 24, like the DOJ Standards, sets forth

7 detailed accessibility design specifications, the purpose of which is “to make all public and

8 private buildings accessible to physically handicapped persons.” Café Royale, Inc., 266 Cal.

9 Rptr. at 809; see also People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct.

10 App. 1983). Title 24 also requires public accommodations to maintain in operable working

11 condition those features of facilities and equipment that are required to be accessible to and

12 usable by persons with disabilities. Title 24 at § 1101B.3 (2001).

13

Defendant has asserted that a violation of Title 24 does not constitute a violation of the

14 CDPA. Defendant is incorrect.

15

The very purpose of Title 24, which was promulgated pursuant to section 19955 et seq.

16 of the California Health & Safety Code, was “[t]o give meaning” to the CDPA. Donald v.

17 Sacramento Valley Bank, 260 Cal. Rptr. 49, 53 (Cal. Ct. App. 1989); see also People ex rel.

18 Deukmejian, 197 Cal. Rptr. at 491 (Holding that Title 24 “provide[s] substance to the full and

19 equal access right of the handicapped” established by the CDPA.).

20

Indeed, the CDPA explicitly provides individuals with a private right of action for

21 injunctive relief to enforce Title 24. Cal. Civ. Code § 55 (“Any person who is aggrieved or

22 potentially aggrieved by a violation of . . . Part 5.5 (commencing with Section 19955) of

23 Division 13 of the Health and Safety Code may bring an action to enjoin the violation.”); see

24 also Cal. Health & Safety Code § 19953 (same); Café Royale, Inc., 266 Cal. Rptr. at 813 (“A

25

26

27

5

The provisions from the DOJ Standards and Title 24 cited in this Motion are

included in the attached Appendix to Plaintiffs’ Motion for Partial Summary Judgment. 28

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1 designated public agency or an individual may initiate an action to enforce compliance with”

2 Title 24.).

3

Further, every case that has addressed the issue has concluded that an individual can

4 bring a CDPA claim for injunctive relief and damages based on a violation of Title 24. These

5 cases include, for example:

6

•

Café Royale, Inc., 266 Cal. Rptr. at 813: Holding that plaintiff was entitled to an

award of damages under the CDPA based on the defendant’s violation of the

7

accessible seating provisions of Title 24.

8

•

Sacramento Valley Bank, 260 Cal. Rptr. at 56: Holding that plaintiff could

pursue monetary and injunctive claims under the CDPA for defendant’s

9

violations of Title 24 governing ATMs.

10

•

Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F. Supp. 2d

1128, 1131 n.4 (E.D. Cal. 2002): “State claims may be premised on violations

11

of the California Building Code, as well as violations of the ADA.”

12

•

Mannick v. Kaiser Foundation Health Plan, Inc., C 03-5905 PJH, 2006 WL

2168877, *16 (N.D. Cal. July 31, 2006): “Under the CDPA, a plaintiff can show

13

either that the ADA was violated, or that the facility in question does not

comply with the California Building Code requirements for disabled access . . .”

14

•

Arnold, 158 F.R.D. at 447: “Both injunctive relief and damages are available

15

under § 54.1 to disabled persons aggrieved by violations of the Title 24

disability access standards.”

16

•

Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433, 439 (N.D. Cal.

17

1994): “The Court therefore holds that where a plaintiff can prove that

violations of applicable California disability access standards deterred her on a

18

particular occasion from attempting to attend a place of public accommodation,

that plaintiff states a claim for relief under . . . [the CDPA].”

19

Plaintiffs are thus entitled to summary judgment on their CDPA claims as to those

20

elements that violate Title 24, which are discussed in sections II.A, III.B, III.C and IV.B below,

21

and listed in Exhibits 1, 4, 5 and 8.

22

2. The Unruh Civil Rights Act.

23

California’s long-standing Unruh Act was amended in 1987 to prohibit discrimination

24

on the basis of disability by business establishments. See Cal. Civ. Code § 51(b) &

25

accompanying Historical and Statutory Notes (discussing 1987 Amendment).

26

27

28

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1

A violation of either Title 246 or the ADA7 constitutes a violation of Unruh. It is

2 unclear whether a plaintiff who bases an Unruh claim on a violation of Title 24 must establish

3 intentional discrimination. Thus, in this Motion, Plaintiffs do not seek summary judgment on

4 their Unruh claims based on Defendant’s violations of Title 24.

5

Where an element violates Unruh by dint of the fact that it violates the ADA, however,

6 it is not necessary for Plaintiffs to prove intent. The Unruh Act was amended in 1992 to add

7 what is now section 51(f): “A violation of the right of any individual under the Americans with

8 Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.”

9 In Lentini v. California Center for the Arts, 370 F.3d 837, 847 (9th Cir. 2004), the Ninth

10 Circuit (Pregerson, J.), relying on the plain language of this1992 amendment, held: “no

11 showing of intentional discrimination is required where the Unruh Act violation is premised on

12 an ADA violation. This is mandated by the Unruh Act’s language, which states that a violation

13 of the ADA is, per se, a violation of the Unruh Act.” Although one court has held that intent is 14 required in an Unruh case predicated upon a violation of the ADA,8 under the plain language of

15 the statute, the legislative history, and the Ninth Circuit’s decision in Lentini, a showing of

16 intent is not required, and plaintiffs are entitled to summary judgment under the Unruh Act as

17 to those elements predicated on a violation of the ADA. These elements are discussed below in 18 sections II.B. III.A and IV.A, and listed in Exhibits 2, 3, 6 and 7.9

19

20

6

See, e.g., Boemio v. Love’s Rest., 954 F. Supp. 204, 207-09 (S.D. Cal.1997)

(Holding that “[a]n individual may initiate an action to enforce compliance with the [California

21 state] handicapped access standards,” and awarding damages under Unruh for defendant’s violations of Title 24 regulations governing restrooms.); Wilson v. Pier 1 Imports (US), Inc.,

22 439 F. Supp. 2d 1054, 1065 (E.D. Cal. 2006) (Holding that “as a general matter, a plaintiff may rely on both the ADAAG and [California Building Code] when pursuing an Unruh claim . . .”).

23

7

Cal. Civ. Code § 51(f).

24

8

See Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006).

25

9

The Ninth Circuit’s decision, which rests on the plain language of the statute

26 was correctly decided and is directly supported by the legislative history to the 1992 amendment to the Unruh Act. See Assembly Committee on Judiciary, Report on AB1077 (as

27 amended January 6, 1992, p.2) stating that the bill would “make a violation of the ADA a

(continued...) 28

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1

D. Tolerances.

2

The DOJ Standards and -- beginning in 1999 -- Title 24 provide that “[a]ll dimensions

3 are subject to conventional building industry tolerances for field conditions.” DOJ Stds. § 3.2;

4 Title 24-1999 § 1101B.4. Although Taco Bell has stipulated that the question of what

5 constitutes a tolerance under this provision is an affirmative defense on which Taco Bell bears 6 the burden of proof,10 for purposes of this Motion, Plaintiffs are seeking relief only with respect

7 to architectural elements that are either (1) outside of tolerances to which the parties have

8 stipulated, or (2) so far out of compliance as to be beyond any reasonable tolerance based on

9 field conditions.

10

For example, Plaintiffs have applied a seven pound tolerance for interior door forces, a

11 tolerance to which the parties have stipulated. (See “Chart of Acceptable Measurements for the

12 DOJ Standards for New Construction and Alterations” (“Stipulated Tolerances”) at 1, attached

13 to Stipulation Concerning Acceptable Measurements (Fox Decl. Ex. 9).) Plaintiffs have

14 applied a tolerance of 3.9 inches to queue line dimensions, based on the testimony of Carlos

15

16

9(...continued)

violation of the Unruh Act. Thereby providing persons injured by a violation of the ADA with

17 the remedies provided by the Unruh Act (e.g., right of private action for damages.)”. The bill

was described in almost identical terms by the Senate Committee of Judiciary report on AB

18 1077 as amended June 1, 1992, p.5 ([T]his bill would make a violation of the ADA a violation

of the Unruh Act. Thereby providing persons injured by a violation of the ADA with the

19 remedies provided by the Unruh Act (e.g. right of private action for damages, including

punitive damages.) The Court in Gunther cites none of this language, and apparently was 20 unaware of its existence. As there is no decision of the California Supreme Court on the

impact of the 1992 amendment to Unruh, state intermediate court opinions are pertinent to the

21 extent that their reasoning is persuasive. See Gen. Motors Corp. v. Doupnik, 1 F.3d 862, 865

n.4 (9th Cir. 1993) (“Lower state court decisions may provide guidance as to the direction of

22 the State Supreme Court’s probable decisionmaking. We are not bound, however, to follow

such decisions.” (Citations omitted.)). As the Court in Gunther missed critical passages in the

23 legislative history, it’s reading of the statute is unpersuasive.

24

10 Joint Status Conference Statement (filed Feb. 1, 2005) ¶ 18; see also Indep.

Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 782 (D. Or. 1997) (Holding that the 25 question of what constitutes “conventional building industry tolerances” is “an affirmative

defense upon which the defendant bears the burden of proof.”); AMC Entm’t, Inc., 245 F. 26 Supp. 2d at 1100 (Granting summary judgment to the plaintiff and rejecting the defendant’s

argument that small deviations should be excused as tolerances on the grounds that the 27 defendant had “provided no evidence regarding any applicable conventional building industry

tolerances. . .”). 28

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1 Azalde, Taco Bell’s Rule 30(b)(6) designee on queue line issues in both the Colorado 2 litigation11 and the case at bar, who stated that a four inch deviation from the design of queue

3 lines would be beyond construction tolerances. (Colorado Cross Disability Coalition v. Taco

4 Bell Corp., Civil Action No. 97-B-2135 (D. Colo.) (“CCDC v. Taco Bell”), Dep. of Carlos 5 Azalde at 33-34 (Ex. 10 to Fox Decl.) (“Azalde Colo. Dep.”).)12

6 II. 7 8

The Queue Lines in the Restaurants Listed in Exhibits 1 and 2 Are In Violation of Applicable New Construction Standards.
At Taco Bell restaurants, queue lines are generally arranged like this:

9

10

11

12

13

14

15

16

17

18

19

20

21

22

11 Prior to the commencement of the case at bar, a class action was brought against

Taco Bell in Colorado based on queue lines and service counters in corporate restaurants that

23 allegedly violated the ADA. See Colorado Cross-Disability Coalition v. Taco Bell Corp., 184

F.R.D. 354 (D. Colo. 1999). Taco Bell’s pleadings, discovery responses and Rule 30(b)(6)

24 testimony from the Colorado case are admissible here as evidentiary admissions. See, e.g.,

Williams v. Union Carbide Corp., 790 F.2d 552, 556 (6th Cir. 1986) (“Pleadings in a prior case 25 may be used as evidentiary admissions.”).

26

12 Plaintiffs believe that four inches is too large to constitute a “conventional

building industry tolerance for field conditions.” See DOJ Stds. § 3.2; Title 24-1999 27 § 1101B.4. However, to avoid any alleged factual disputes, they have applied tolerance

endorsed by Taco Bell’s Rule 30(b)(6) deponent. 28

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1

These lines are too narrow for many customers who use wheelchairs or scooters to

2 navigate (See, e.g., Dep. of Francie Moeller (“Moeller Dep.”) at 23 (Ex. 12 to Fox Decl.); Dep.

3 of Craig Thomas Yates (“Yates Dep.”) at 28 (Ex. 13 to Fox Decl.).) Taco Bell knows this, and

4 it expects such customers to approach the counter via the auxiliary access to the side of the

5 line. (Azalde Colo. Dep. at 40-41.)

6

As demonstrated below, Plaintiffs are entitled to summary judgment as to the queue

7 lines listed in Exhibits 1 and 2 because: (1) queue lines in restaurants built between December

8 31, 1981 and January 26, 1993 -- those listed in Exhibit 1 -- are in violation of applicable Title

9 24 regulations in effect since at least 1981 governing the width of cafeteria lines and circulation

10 aisles; (2) queue lines in restaurants built after January 26, 1993 -- those listed in Exhibit 2 --

11 are in violation of the DOJ Standards; and (3) Taco Bell’s segregated auxiliary access for

12 persons who use wheelchairs or scooters violates the requirements of both California law and

13 the ADA.

14

A. The Queue Lines In Exhibit 1 Are in Buildings Built Between December 31,

1981 and January 26, 1993, and Are In Violation of Title 24 and thus the

15

CDPA.

16

Since at least 1981, two Title 24 regulations have required queue lines to be at least 36

17 inches wide. First, these regulations require cafeteria lines to be at least 36 inches wide.13 In

18 addition, circulation aisles14 must be “be sized according to functional requirements and in no

19 case shall be less than 36 inches in clear width.”15

20

Mr. Azalde testified that prior to approximately 1993, it was Taco Bell’s policy to

21 design queue lines that were less than 36 inches wide. (Dep. of Carlos Azalde (“Azalde Calif.

22

23

13 Title 24-1981 § 2-611(c)(4); Title 24-1984 § 2-611(d)(4); Title 24-1987 § 2-

611(d)(4); Title 24-1989 § 611(d)(4). Mr. Azalde agreed that Taco Bell’s queue lines were

24 “food service lines.” Azalde Colo. Dep. at 35.

25

14 An “aisle” is defined as a “circulation path between objects such as seats, tables,

merchandise equipment, displays, shelves, desks, etc.” Title 24-1981 § 2-402(d); Title 24-

26 1984 § 2-402(d); Title 24-1987 § 2-402; Title 24-1989 § 402(h).

27

15 Title 24-1981 § 2-710(a)(7)(A); Title 24-1984 § 2-710(b)(7)(A); Title 24-1987

§ 2-712(b)(7)(A) ; Title 24-1989 § 712(b)(7)(A). 28

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1 Dep.”) at 93 (Ex. 15 to Fox Decl.).) He also testified that a variation of four inches or more

2 would be outside of a construction tolerance for queue lines. (Azalde Colo. Dep. at 33-34.) 3 Exhibit 1 sets forth restaurants constructed between December 31, 1981 and January 26, 199316

4 that have queue lines in which at least one lane or turn is 32 inches or less in width and thus

5 clearly in violation of Title 24, even subject to the tolerance endorsed by Taco Bell’s Rule

6 30(b)(6) designee. Because these queue lines violate Title 24, they also violate the CDPA.

7 See, e.g., Arnold, 158 F.R.D. at 447.

8

B. The Queue Lines in Exhibit 2 Are In Buildings Built After January 26,

1993 And Are In Violation of the ADA, the CDPA and Unruh.

9

1. The Department of Justice has Concluded that Taco Bell’s Queue

10

Lines Violate the DOJ Standards.

11

In the Colorado action, the Department of Justice submitted an amicus brief setting

12 forth its view that Taco Bell’s queue lines, and auxiliary access for wheelchair-users, violates

13 the DOJ Standards. (CCDC v. Taco Bell, Memo. of United States as Amicus Curiae in Opp. to

14 Taco Bell’s Summ. J. Mot. at 15-20 (Jan. 27, 1999) (ex. 14 to Fox Decl.).) Because this is an

15 agency’s interpretation of its own regulations, the interpretation is “controlling” unless it is

16 “‘plainly erroneous or inconsistent with the regulation,’” which is clearly not the case here.

17 Basiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006) (quoting Auer v. Robbins, 519 U.S. 18 452, 461 (1997)).17

19

2. Taco Bell’s Queue Lines Violate the DOJ Standards.

20

Queue lines in restaurants built after January 26, 1993 are required to comply with the

21 “accessible route” requirements of the DOJ Standards. An “accessible route” is “[a]

22 continuous unobstructed path connecting all accessible elements and spaces of a building or

23

24

16 For stipulated construction dates, see generally Agreement Reached.

25

17 The fact that the agency interpretation is set forth in an amicus brief does not

lessen the deference owed to that interpretation. See Basiri, 463 F.3d at 930 (agency 26 interpretation owed deference “even if through an informal process”); Zurich American Ins.

Co. v. Whittier Props. Inc., 356 F.3d 1132, 1137 n.27 (9th Cir. 2004) (Citing Auer for 27 proposition that “agency’s position set forth in a legal brief, in a case in which the agency is

not a party, is entitled to deference.”). 28

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1 facility.” DOJ Stds. § 3.5. Doors and counters are “elements” under the DOJ Standards. See

2 id. (defining element), §§ 4.3.9 (doors), 5.2 & 7.2 (counters). As part of the route that

3 customers are expected to follow from the door to the counter, the queue line must comply with

4 the requirements governing such routes.

5

The DOJ Standards governing accessible routes prescribe specific measurements where

6 a route makes a 180-degree turn around an obstruction, as the queue line does where patrons

7 make a 180-degree turn around the post in the middle. DOJ Stds. § 4.3.3 (“If a person in a

8 wheelchair must make a turn around an obstruction, the minimum clear width of the accessible 9 route shall be as shown in Fig. 7(a) and 7(b).”)18 Figure 7(b) dictates that each lane must be a

10 minimum of 42 inches wide and the turn must be at least 48 inches wide.

11

12

13

14

15

16

17

18

19

20

21

22

23

In the alternative, each lane may be the minimum 36 inches permitted for accessible

24 routes, provided that there is a 60-inch space at the turn for the wheelchair-using patron to

25 make a 180-degree turn in place. See DOJ Stds. § 4.2.1 (requiring a 36-inch width for an

26

18 Figure 7(a) addresses turns around wider obstructions -- those at least 48 inches 27 wide -- and thus does not apply to a Taco Bell queue line, where the post around which patrons

turn is far narrower than 48 inches. 28

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1 accessible route) & 4.2.3 (“The space required for a wheelchair to make a 180-degree turn is a

2 clear space of 60 inches diameter (see Fig. 3(a)) . . .”). Figure 3(a) illustrates the latter turning

3 space.

4

5

6

7

8

9

10

11

12

13

Thus, under the DOJ Standards, if the queue line’s lanes are less than 42 inches wide, a

14 60-inch diameter turning space is required. If the lanes are at least 42 inches wide, then a

15 turning space of at least 48 inches is required. As this makes clear, the turn can never be less

16 than 48 inches.

17

Exhibit 2 sets forth restaurants constructed after January 26, 199319 that have queue

18 lines that violate the DOJ Standards because they have: (1) at least one turn that is 44 inches or 19 less in width; or (2) lanes that are 32 inches or less and turns that are 56 inches or less.20

20 Because these queue lines violate the ADA, they also violate the CDPA and Unruh. See Cal.

21 Civ. Code §§ 51(f), 54(c) & 54.1(d).

22

23

24

25

26

19 For stipulated construction dates, see generally Agreements Reached.

27

20 These dimensions are based on the four-inch tolerance endorsed by Taco Bell’s

Rule 30(b)(6) designee. 28

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1

C. Taco Bell’s Auxiliary Access for Persons Who Use Wheelchairs or Scooters

Violates the ADA and California Law.

2

1. Background.

3

Taco Bell uses queue lines because they make the ordering process much easier for its

4

customers. As Mr. Azalde explained, queue lines provide

5

a stress-free ordering system for the customer. . . . If you don’t have queue

6

lines, the customers spend an inordinate amount of time jumping from line to

line. And typically by the time they get to the front of the line, they don’t even

7

know what they want. So in the queue, they don’t have to worry about what

line they are in, they can concentrate on what they want to order.

8

(Azalde Colo. Dep. at 40.) Queue lines provide “faster and fairer service” to customers.

9

(CCDC v. Taco Bell, Taco Bell’s Answers to Pls.’ First Set of Interrogs at 3 (Ex. 11 to Fox

10

Decl.) (“Taco Bell Colo. Answers to Iterrogs..”).)

11

Taco Bell claims that its system is designed so that people who use wheelchairs will use

12

the separate auxiliary entrance to simply “go in the front of the line.” (Azalde Colo. Dep. at

13

41-42.) As a result, disabled customers who are forced to use the separate entrance are put in

14

the uncomfortable position of appearing to “cut” in front of the non-disabled customers already

15

waiting in the queue line, or must try to keep track of the order in which other customers

16

arrived to determine when they should approach the counter. (See, e.g., Moeller Dep. at 24;

17

Yates Dep. at 31.)

18

In his Rule 30(b)(6) deposition in CCDC v. Taco Bell, Mr. Azalde conceded that:

19

•

He did not know what other customers -- who had been waiting a longer time --

20

would think about wheelchair users going to the front of the line. (Azalde Colo.

21

Dep. at 40.)

22

•

There was no sign stating that customers in wheelchairs were to proceed to the

23

front of the line. (Id. at 44.)

24

•

He did not know how a customer in a wheelchair would keep track of his or her

25

place in line. (Id.)

26

27

28
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1

•

When asked how mixed groups of customers in wheelchairs and able-bodied

2

customers should handle the hospitality lines, he responded that he “had never

3

thought through that particular situation.” (Id.)

4

•

It “would be easier if people in wheelchairs could go through the queue with

5

everybody else.” (Id. at 45-46.)

6

As such, far from being a stress-free system in which customers can concentrate on

7 their orders rather than the line they are in, Taco Bell’s system is stressful and confusing for

8 people who use wheelchairs, requiring them to focus on whether the line is accessible, where to

9 go if not, whether it is appropriate to cut in front of others who have been there longer and, if

10 not, how to tell where they are in line. Finally, of course, it is uncontested that the system

11 segregates people in wheelchairs from other patrons and imposes this confusion only on the

12 former.

13

2. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by

Denying Them the Opportunity to Benefit from its Queue Lines.

14

The ADA and California law make it illegal to provide persons with disabilities with

15

services or facilities that are not equal to those provided others. 42 U.S.C.

16

§ 12182(b)(1)(A)(ii); Cal. Civ. Code §§ 51(b), 54.1(a)(1). Through its queue lines, Taco Bell

17

provides non-disabled customers with a “stress-free ordering system” which allows such

18

customers not to have to “worry about what line they are in,” resulting in “faster and fairer

19

service” based on “customer preference.” (Azalde Colo. Dep. at 40; Taco Bell Colo. Answers

20

to Interrogs. at 3.)

21

Yet Taco Bell denies the benefits of this facility and service to customers in

22

wheelchairs who are unable to access the narrow queue lines. For such customers, the entire

23

purpose is defeated as they are required to go through a side entrance. Once there, rather than

24

enjoying the stress-free experience of non-disabled patrons, wheelchair-using patrons must do

25

precisely what the queue lines are supposed to prevent: worry about where they are in line. As

26

an alternative, Taco Bell suggests such patrons should proceed to the front of the line. Yet the

27

reason why the queue line is “fairer” is because those who arrive first are served first. So a

28

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1 wheelchair-using patron who attempts to cut in line will, by Taco Bell’s own logic, be acting

2 unfairly and thereby subjecting himself to the opprobrium of his fellow customers. A person

3 who cuts ahead of a line full of hungry people will not have a “stress-free” ordering experience.

4 As Named Plaintiff Craig Yates testified at his deposition, inaccessible queue lines

5

[i]mpacts the idea that already I feel not that confident, being to the fact I’m in a

wheelchair, and I don’t like the idea of people feeling sorry for me. And, yet, I feel

6

embarrassed at the end of the cue line and impacting myself on their placement in line

by trying to cut in on them, by coming to the end of the line, not taking my place

7

appropriately in line, as everyone else does.

8 (Yates Dep. at 36-37.)

9

“[N]othing in the ADA is intended to permit discriminatory treatment on the basis of

10 disability, even when such treatment is rendered under the guise of providing an

11 accommodation, service, aid or benefit to the individual with disability.” H. Rep. 101-485, Pt.

12 3, 101st Cong., 2nd Sess. 71, reprinted in 1990 U.S.C.C.A.N. 445, 494. Thus even if Taco Bell

13 believes it is providing a “service” by permitting people who use wheelchairs to go to the head

14 of the line, the overall treatment is unequal and denies such persons the benefits of its

15 hospitality lines. It is therefore prohibited by the ADA.

16

Likewise, under California law, the “focus [is] on the equality of access.” Boemio, 954

17 F. Supp. at 208 (S.D. Cal. 1997). “The standard cannot be ‘is access achievable in some

18 manner.’” Id. Here, Taco Bell’s alternative entrance for customers who use wheelchairs or

19 scooters denies such customers the benefits and advantages of queue lines and thus does not

20 constitute equal access.

21

3. Taco Bell Discriminates Against Patrons Who Use Wheelchairs by

Segregating Them from Nondisabled Patrons.

22

In enacting the ADA, the legislature recognized that “historically, society has tended to

23

isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). As the legislative

24

history of the Act makes clear, “[p]roviding services in the most integrated setting is a

25

fundamental principle of the ADA.” H. Rep. 101-485, Pt. 2, 101st Cong., 2nd Sess. 102,

26

reprinted in 1990 U.S.C.C.A.N. 303, 385.

27

28
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1

As a result, public accommodations may not segregate persons with disabilities from

2 other persons. For example, “[g]oods, services, facilities, privileges, advantages, and

3 accommodations shall be afforded to an individual with a disability in the most integrated

4 setting appropriate to the needs of the individual.” 42 U.S.C. § 12182(b)(1)(B) (emphasis

5 added); see also § 12182(b)(1)(A)(iii) (Making it illegal to provide a person with a disability “a

6 good, service, facility, privilege, advantage, or accommodation that is different or separate

7 from that provided to other individuals.” (Emphasis added)). Likewise, under California law,

8 persons with disabilities must be afforded “full and equal” access to business establishments

9 and places of public accommodation. Cal. Civ. Code §§ 51(b), 54.1(a)(1).

10

This principle is reflected in Title 24 and the DOJ Standards, both of which require that

11 accessible routes, to the maximum extent feasible, coincide with the route for the general

12 public. DOJ Standards § 4.3.2(1); Title 24-1994 § 3103A(i)2. Several courts have found that

13 accessible routes that do not coincide with routes for the general public violate the ADA and/or

14 California law. See, e.g., Wyatt v. Ralphs Grocery Co., No. SACV001260DOCEEX, 2002

15 WL 32985831 at *3 (C.D. Cal. Feb. 21, 2002), aff’d 2003 WL 1193809 (9th Cir. Mar. 14,

16 2003) (Holding that access that did not coincide with the route for the general public violated

17 ADA); Neighborhood Ass’n Of The Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 65-66

18 (1st Cir. 2006) (Holding that segregated handicap entrance violated ADA); People ex rel.

19 Deukmejian, 197 Cal. Rptr. at 493 (Holding that the CDPA “is intended to promote

20 accommodation of the physically handicapped by insuring them access to public restaurants

21 without facing the unnecessary, adverse psychological impact of being separated from regular

22 customer traffic and shunted through secondary entrances.”).

23

Taco Bell’s system segregates people who use wheelchairs from others in violation of

24 the ADA and California law.

25

26

27

28
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1 III. The Doors Listed in Exhibits 3, 4 and 5 Are In Violation of Applicable New Construction Standards.
2 The DOJ Standards regulate the force necessary to open interior doors. Title 24
3 regulates -- and has regulated since at least December 31, 1981 -- the force necessary to open
4 both interior and exterior doors.
5 Both the ADA and Title 24 require that public accommodations maintain accessible
6 features in operable working condition. 28 C.F.R. § 36.211(a); Title 24-2001 § 1101B.3.1.
7 While this “does not prohibit isolated or temporary interruptions in service or access due to
8 maintenance or repairs,” 28 C.F.R. § 36.211(b); Title 24-2001 § 1101B.3.2, it does not permit
9 inaccessibility to “persist beyond a reasonable period of time” or “repeated mechanical failures
10 due to improper or inadequate maintenance.” “Preamble to Regulation on Nondiscrimination
11 on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R.
12 pt. 36, app. B at 696 (2005). Under section 36.211, a “defendant must periodically monitor and
13 maintain all such equipment to ensure that it continues to comply with the Title III Standards.”
14 Indep. Living Res. v. Oregon Arena Corp., 1 F. Supp.2d 1124, 1136 (D. Or. 1998) (citing 28
15 C.F.R. § 36.211).
16 Despite the fact that Taco Bell is aware that door pressure changes frequently, it has no
17 policy or practice of monitoring door pressure to ensure it maintains compliance. The Facility
18 Leader for Taco Bell’s Northern California Territory -- responsible for the “management and
19 supervision of 136 facilities” including “managing repair, maintenance and minor remodeling
20 projects for existing Taco Bell restaurants” -- testified that the door pressure for exterior and
21 restroom doors were two items in Taco Bell restaurants that “are subject to frequent change.”
22 (Decl. of Jaime de Beers in Support of Def.’s Mot. for Modification of Class Definition (“de
23 Beers Decl.”) ¶¶ 2, 3, 6(a)(xvi) & (b)(iv).)21 In her deposition, Ms. de Beers clarified that by
24 “frequent” she meant “from year to year” because that was how often she saw the doors, but it
25 “could happen more frequently than just annually.” (Dep. of Jaime de Beers (de Beers Dep.”)
26

27 21 Ex. 16 to Fox Decl.
28
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1 at 33, 35, 37 (Ex. 17 to Fox Decl.); see also Dep. of Steve Elmer at 66-67 (door pressure hard

2 to maintain) (Ex. 18 to Fox Decl.).)

3

Despite Taco Bell’s awareness that door pressure changes frequently, the company

4 takes no steps to monitor or maintain the compliance of this element. Steve Elmer, Taco Bell’s

5 Rule 30(b)(6) designee on the topic of Taco Bell’s practices and procedures concerning

6 accessibility, testified that no one at Taco Bell monitored door opening force. (Elmer dep. at

7 76 - 77.) Indeed, even as of Mr. Elmer’s deposition in September, 2005 -- almost three years

8 after this suit was filed -- no one was monitoring this essential accessibility feature. (Id.)

9 Similarly, Ms. de Beers testified that she did not “have any training . . . in pressure doors” (de

10 Beers Dep. at 34-35), and that the first time she used a device to measure door pressure was

11 around 2004, seven years into her tenure as Facility Leader. (Id. at 14; 128-29.) Although she

12 “make[s] regular inspections at Taco Bell restaurants,” (de Beers Decl. at ¶ 3), and visits each

13 of the restaurants for which she is responsible at least annually (de Beers Dep. at 16), she can

14 only recall three times when a Taco Bell door was measured for the pressure necessary to open

15 it. (Id. at 133.)

16

As a result, the Special Master found widespread violations of the door force

17 requirements. The parties have stipulated that 196 restaurants were built after December 31,

18 1981. Of these, 171 have interior and/or exterior doors that violate door force requirements.

19 (See Fox Decl. at ¶ 8; exs. 3-5.)

20

A. The Interior Doors in Exhibit 3 Are In Buildings Built After January 26,

1993 And Are In Violation of the ADA, the CDPA and Unruh.

21

The DOJ Standards limit the force necessary to open an interior door to five pounds.

22

Id. § 4.13.11(2)(b). The parties have agreed to a tolerance of seven pounds. (Stipulated

23

Tolerances at 1.) The restroom doors listed in Exhibit 3 are all in restaurants built after January

24 26, 199322 and all require in excess of seven pounds of pressure to open. They are all in

25

26

27

22 For stipulated construction dates, see generally Agreement Reached. 28

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1 violation of the ADA, and thus the CDPA and Unruh. See Cal. Civ. Code §§ 51(f), 54(c) &

2 54.1(d).

3

B. The Interior Doors in Exhibit 4 Are In Buildings Built Between December

31, 1981 and January 26, 1993 And Are In Violation of Title 24 and thus

4

the CDPA.

5

Title 24 has limited the force necessary to open interior doors to five pounds since

6 December 31, 1981.23 While Title 24 did not, until 1999, contain a provision subjecting the

7 dimensions it regulated to tolerances,24 because the Title 24 requirement is the same as that

8 under the DOJ Standards, Plaintiffs have applied the seven-pound tolerance that the parties 9 agreed applied to interior doors under the latter standard.25

10

The restroom doors listed in Exhibit 4 are all in restaurants built between December 31,

11 1981 and January 26, 199326 and all require in excess of seven pounds of pressure to open.

12 They are all in violation of Title 24 and thus the CDPA. See, e.g., Arnold, 158 F.R.D. at 447.

13

C. The Exterior Doors in Exhibit 5 Are In Buildings Built After December 31,

1981 And Are In Violation of Title 24 and thus the CDPA.

14

Under Title 24 in effect between December 31, 1981 and November 1, 2002, the force

15 necessary to open an exterior door was limited to eight and one-half pounds.27 Although the

16

parties did not stipulate to tolerances on dimensions set forth in Title 24, Defendant proposed,

17

in correspondence, a tolerance of nine pounds on exterior door force. (Letter from R. Hikida to

18

19 23 Title 24-1981 § 2-3303(l)(2); Title 24-1984 § 2-3303(l)(2); Title 24-1987
20 § 2-3304(1)(2); Title 24-1989 § 3304(i.2)(1); Title 24-1994 § 3304(i.2)(1); Title 24-1999

§ 1133B.2.5; Title 24-2001 § 1133B.2.5. 21
24 Title 24-1999 § 1101B.4. 22
25 See Stipulated Tolerances at 1. 23

26 For stipulated construction dates, see generally Agreement Reached. 24

27 Title 24-1981 § 2-3303(l)(2); Title 24-1984 § 2-3303(l)(2); Title 24-1987 25 § 2-3304(1)(2); Title 24-1989 § 3304(i.2)(1); Title 24-1994 § 3304(i.2)(1); Title 24-1999

§ 1133B.2.5. The DOJ Standards do not regulate exterior door force. See id. § 4.13.11(2)(a). 26 In the 2001 version of Title 24, which took effect on November 1, 2002, the force necessary to

open an exterior door was reduced to five pounds. Title 24-2001 § 1133B.2.5. Only one of the 27 stores at issue in this motion was built after November 1, 2002. Plaintiffs have applied only

the pre-2002 standard. 28

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1 T. Fox and A. Robertson dated May 24, 2006 (“the Orange Empire chapter of the ICBO has

2 indicated that a 9 lb. maximum pull tolerance for exterior doors is appropriate.”) (Ex. 19 to Fox

3 Decl.).) For purposes of this Motion, Plaintiffs have applied a nine and one-half pound

4 tolerance, which is more generous to Taco Bell than the tolerance it proposed.

5

The exterior doors listed in Exhibit 5 are all in restaurants built after December 31,

6 198128 and all require in excess of nine and one-half pounds of pressure to open. They are all

7 in violation of Title 24 and thus the CDPA. See, e.g., Arnold, 158 F.R.D. at 447.

8 IV. The Accessible Seating in the Indoor Dining Areas of the Restaurants Listed in

Exhibits 6, 7 and 8 Are In Violation of Applicable New Construction Standards.

9

The DOJ Standards regulate the number of, and knee clearance at, accessible seating

10

positions in fixed seating. Since December 31, 1981, Title 24 has regulated the number of

11

wheelchair seating spaces in restaurants, regardless of whether they were fixed or moveable.

12

A. The Fixed Accessible Seating In Exhibits 6 and 7, in Buildings Built After

13

January 26, 1993, Violates the ADA, the CDPA and Unruh.

14

The DOJ Standards require that “at least five percent (5%), but not less than one, of the

15 fixed or built-in seating areas or tables” must be accessible, that is, must comply with section

16 4.32 of the DOJ Standards. Id. § 4.1.3(18). Section 4.32.3 requires a knee space that is 27

17 inches high, 30 inches wide and 19 inches deep. Id. The parties have stipulated to the 18 following tolerances: 26½ inches high; 29 inches wide; 18 inches deep.29

19

The restaurants listed in Exhibit 6 all have fixed seating that does not include at least

20 five percent accessible seating positions, and are thus in violation of the DOJ Standards.

21

The restaurants listed in Exhibit 7 all have accessible tables that do not comply with the

22 knee clearance requirement of Section 4.32.3 -- subject to the agreed tolerances -- and are thus

23 in violation of the DOJ Standards.

24

Because the elements listed in Exhibits 6 and 7 violate the ADA, they also violate the

25 CDPA and Unruh. See Cal. Civ. Code §§ 51(f), 54(c) & 54.1(d).

26
28 For stipulated construction dates, see generally Agreement Reached. 27

29 Stipulated Tolerances at 1. 28

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1

B. The Accessible Seating In Exhibit 8 Is In Violation of Title 24 and thus the

CDPA.

2

Title 24 has required, since 1981, that “[e]ach dining, banquet and bar area shall have

3 one wheelchair seating space for each twenty seats . . ..” Title 24-1981 § 2-611(c)(3).30

4

The restaurants listed in Exhibit 8 do not have a minimum of one wheelchair seating

5

space for each twenty seats -- regardless of whether fixed or moveable -- and are thus in

6

violation of Title 24 and the CDPA. See, e.g., Arnold, 158 F.R.D. at 447.

7

CONCLUSION

8

For the reasons set forth above, Plaintiffs respectfully request that their Motion for

9

Partial Summary Judgment be granted.

10

11

12

Respectfully submitted,

13

FOX & ROBERTSON, P.C.

14

15
16
17
18
19
20 February 23, 2007
21

By: /s/ Timothy P. Fox Timothy P. Fox, Cal. Bar No. 157750 Amy F. Robertson, pro hac vice Ari Krichiver, pro hac vice 910 - 16th Street Suite 610 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

22

23

24

25

26

30 See also Title 24-1984 § 2-611(d)(3); Title 24-1987 § 2-611(d)(3); Title 2427 1989 § 611(d)(3); Title 24-1994 § 3103A(b)4C; Title 24-1999 § 1104B.5.4; Title 24-2001

§ 1104B.5.4. 28

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Plaintiffs' Motion for Partial Summary Judgment

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 Case4:02-cv-05849-PJH Document260 Filed03/23/07 Page1 of 48

GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
650 Town Center Drive, Suite 1700
3 Costa Mesa, California 92626 Telephone: (714) 708-6500
4 Facsimile: (714) 708-6501
Email: hurleyg@gtlaw.com.hikidar@gtlaw.com
5
Attorneys for Defendant 6 TACO BELL CORP.

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 SAN FRANCISCO DIVISION
II

12 FRANCIE E. MOELLER, et a!.,

13

Plaintiffs,

14 vs.

IS TACO BELL CORP.,

16

Defendant.

17

18

CASE NO. C 02-5849 MJJ ADR
DEFENDANT TACO BELL CORP.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RESPONSE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT

DATE: TIME: CTRM: JUDGE:

May 17,2007 9:30 a.m. II Hon. Mmtin J. Jenkins

19

20

21

22

23

24

25

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TABLE OF CONTENTS

2 I. STATEMENT OF THE ISSUES TO BE DECIDED ........................................................................... I

II. STATEMENT OF RELEVANT FACTS ............................................................................................. 1 3
III. INTRODUCTION ................................................................................................................................ 2

4 IV. ARGUMENT ....................................................................................................................................... 4

5

A. Plaintiffs Have Failed to Satisfy Their Initial Burden of Proof as to Door Opening Force.

.......................................................................................................... 4
6 I. There Is No Required Standard under the DOJ Standards for Exterior Door

7

Opening Force.................................................................................................................... 5

8

2. Plaintiffs Have Failed to Satisfy Their Initial Burden of Demonstrating That the

Exterior and Interior Doors at Issue Deprived Each of the Class Members of Effective

9

Access ................................................................................................................................. 7

10

3. Plaintiffs Have Failed to Satisfy Their Prima Facie Readily Achievable Burden of

Proof for 107 Stores Constructed Prior to January 26, 1993 .............................................. 8

11

(a) Readily Achievable Barrier Removal Should Be Easily Accomplishable and

12

Able to Be Carried Out Without Much Difficulty or Expense............................... 8

(b) The ADA Plaintiff Bears the Initial Burden of Proof to Suggest a Method of

13

Barrier Removal That Is Easily Accomplishable and Able to Be Carried Out

14

Without Much Difficulty or Expense..................................................................... 9

(c) Congress Intended to Balance the Need to Provide Access for Persons With

15

Disabilities and the Desire to Impose Only "Limited Cost" on Businesses......... 11

16

(d) The Defendant's Financial Resources Are Not Dispositive........................ 16

17

(e) Plaintiffs Have Failed to Satisfy Their Initial Burden................................. 16

4. Plaintiffs Have Failed to Satisfy Their Prima Facie Burden of Proof to

18

Demonstrate "Alterations" for 107 Stores Constructed Prior to January 26, 1993 .......... 17

19

(a) Plaintiffs' Alterations Inquiry Requires a Five-Part Factual Inquiry........... 17

20

(b) Alterations Between January 27,1992 and December 16,2001 Are Time-

Barred................................................................................................................... 18

21

5. The Court Should Not Allow Plaintiffs to Evade Their Evidentiary Burden of

22

Demonstrating Readily Achievable Barrier Removal or the Existence of Alterations For

Stores Constructed Prior to January 26, 1993 By Applying a Non-ADA Standard Such as

23

the California Building Code to the Instant Action.......................................................... 19

24

(a) Plaintiffs Should Not Be Allowed to Bootstrap Non-ADA Standards and

Evade the Careful Balance Struck By Congress in Enacting ADA Standards

25

Including Limitations on Accessibility................................................................. 19

26

(b) Several Recent Published Federal District Court Decisions Reflect that the

DOJ Standards Are the Only Standards that Should Be Considered................... 20

27

(c) There Are Numerous Discrepancies Between the DOJ Standards and the

28

California Building Code...................................................................................... 22

1
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(d) Section 19957 of the Health and Safety Code Provides Local Building Departments With Discretion to Enforce the California Building Code.............. 24

2

(e) Title 24 Itself Provides Local Building Departments With Discretion to

Enforce the California Building Code.................................................................. 25 3
(i) In Practice, Local Building Officials Grant Unreasonable Hardship Exemptions

4

Retroactively............................................................................................................................. 26

(ii)

As a Practical Matter, the Local Building Official Might Not Issue Formal

5

Hardship Determinations to Both Municipalities and Public Accommodations...................... 26

6

(f) The Issuance of Certificates of Occupancy by the Local Building Officials

Tasked with Enforcing the California Building Code Indicates That Such

7

Officials Exercised Their Discretion to Determine that the Stores In Question

Complied with the California Building Code....................................................... 27

8 (g) Plaintiffs I-lave Failed to Satisfy Their Prima Facie Burden of Demonstrating

9

that the Primary Entrance Was Not Accessible.................................................... 33

10

6.

The Door Opening Force Claims Are Moot. ........................................................ 34

B. Plaintiffs Have Failed to Satisfy Their Prima Facie Burden of Proof as to Queue Lines. 38 11
1. Taco Bell Has Provided Equivalent Facilitation in the Form of Customer Service

12

as to Its Queue Lines........................................................................................................ 38

13

2. The Queue Line Claims Are Moot. ...................................................................... 39

C. Plaintiffs Have Failed to Satisfy Their Burden of Proof as to Accessible Indoor Seating.

14

39

15

1. The Indoor Accessible Seating Claims Are Moot. ............................................... 39

16

2. There Is No Centerline Measurement for Accessible Seating.............................. 40

17

18

19

20

21

22

23

24

25

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28

II
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Federal Cases
2 Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp. 2d 1357, 1368 (S.D. Fla. 2001) ......................................................................... 7,9,13,14
3 Toomer v. City Cab,
4 443 F.3d 1191, 1196 (10th Cir. 2006) ........................................................................................ 5, 11, 12
5 Associationfor Disabled Americans, Inc., v. Concorde Gaming Corp., 6 158 F. Supp. 2d 1353 (S.D. Fla. Aug. 20, 2001) .............................................................................. 8,13
7 Barilla v. Ervin, . 886F.2d 1514, 1519 (9thCir. 1989) .................................................................................................... 35
8 9 Brewer v. Wisconsin Bd. ofBar Examiners,
2007 WL 527484, at *4-*5 (ED. Wis. Feb. 14, 2007) ........................................................................ 37 10
Brother v. CPL Investments, Inc., 11 317 F. Supp. 2d 1358, 1370 (S.D. Fla. Mar. 22, 2004) .............................................................. 7,35,37
12 Celotex Corp. v. Catrett, 13 477 U.S. 317, 323 (1986) ......................................................................................................... 17, 33, 34
14 CFM Communications, LLC v. Milts Telecasting Co., 424 F. Supp. 2d 1229, 1239-40 (E.D. Cal. 2005) ................................................................................. 25
15 Chapman v. Pier 1 Imports,
16 No. CIY. S-04-1339 LKK CMK, 2006 WL 1686511, at *10 (E.D. Cal. June 19,2006) ...... 6, 7,11,21
17 Cherry, et al. v. The City College ofSan Francisco, et al.,
18 No. C 04-04981 WHA (N.D. Cal. slip op. filed Jan. 12, 2006) ...............................................6
19 Clark v. City ofLakewood, 20 259 F.3d 996,1011 (9th Cir. 2001) ...................................................................................................... 34
21 Colorado Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999,1009 (10th Cir. 2001) ................................................................................................ 9,11
22 Colorado Cross-Disability Coalition v. Too (Delaware), Inc.,
23 344 F. Supp. 2d 707, 710 (D. Colo. Nov. 10, 2004)................................................................... 6,15,38
24 Compliance Now, Inc. v. Newbury Comics, Inc., 25 2003 WL 21649937, at *3 (D. Mass. July 10,2003) ........................................................................... 10
26 County ofLos Angeles v. Davis, 440 U.S. 625, 631 (1979) ......................................................................................................... 37, 39, 40
27 28 Eckert v. Donahue Schriber Co.,
2003 WL 24273566, at *3 (E.D. Cal. Oct. 14,2003) ............................................................................. 7
111
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Eiden v. Home Depot USA, Inc.,
2 No. crv S04-977 LKK/CMK, 2006 WL 1490418, at *8 (E.D. Cal. May 26, 2006) .......................... 21
3 Fischer v. SJB-P'D. Inc., 214 F.3d 1115, 1120 (9th Cir. 2000) .................................................................................................... 36
4 5 Gathright-Dietrich v. Atlanta Landmarks, Inc.,
452 FJd 1269, 1273 (11th Cir. 2006) .......................................................................................... 7,9,10 6
Grove v. De La Cruz, 7 407 F. Supp. 2d 1126, 1130 (C.D. Cal. Oct. 31, 2005) ........................................................................ 35
8 Guzman v. Denny's Inc., 9 40 F. Supp. 2d 930 (S.D. Ohio Feb. 4, 1999) ....................................................................................... 11
10 Harris v. Costco Wholesale Corp., 389 F. Supp. 2d 1244 (S.D. Cal. 2005) ................................................................................................ 22
11 Hickman v. State ofMissouri,
12 144 F.3d 1141 (8th Cir. 1998) .............................................................................................................. 36
13 Independent Living Resources v. Oregon Arena Corp.,
14 1 F. Supp. 2d 1124 (D. Or. Mar. 26, 1998) .................................................................................. 5, 8, 13
15 Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698, 706 (D. Or. Nov. 12, 1997) .................................................................... 14,16,36
16
17 Keirnan v. Utah Transit Auth., 339 F.3d 1217 (10th Cir. 2003) ............................................................................................................ 12
18 Lewis v. Continental Bank Corp.,
19 494 U.S. 472, 480 (1990) ..................................................................................................................... 36
20 Maldonado v. Harris, 21 370 F.3d 945, 955 (9th Cir. 2004) ........................................................................................................ 18
22 Mannick v. Kaiser Foundation Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *6 (N.D. Cal. June 9, 2006) ..................................... passim
23
24 Medical Society ofNew Jersey v. Herr,
191 F. Supp. 2d 574, 581 (D.N.J. Mar. 21,2002) .......................................................................... 35,37 25
Members and David Singletary v. Brick Oven Restaurant, 26 406 F. Supp. 2d 1120, 1130 n.8 (S.D. Cal. Sept. 15,2005) ................................................................. 10
27 OstendOl!v. Dawson County Corrections Bd., 28 No. 4:98CV3038, 2002 WL 31085085, at *6 (D. Neb. Sept. 18,2002) .............................................. 36
IV
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Palm Beach County, 382 F.3d 1276, 1286 (11th Cir. 2004) .................................................................................................. 35
2 Parr v. L & L Drive-Inn Rest.,
3 96 F. Supp. 2d 1065, 1087 (D. Haw. 2000) .......................................................................................... 35
4 Pickern v. Best Western Timber Cove Lodge Marina Resort, 5 194 F. Supp. 2d 1128, 1130 (E.D. Cal. Apr. 1,2002) .......................................................................... 35
6 Pickern v. Best Western Timber Cove Lodge Marina Resort, No. CIV. S-00-1637 WBS/DA, 2002 WL 202442, at *5 (E.D. Cal. Jan. 18,2002) ............................ 18
7 Regents ofMercersburg College v. Republic Franklin Ins. Co.,
8 458 F.3d 159, 169 (3d Cir. 2006) ..................................................................................................... 8, 11
9 Renne v. Geary, 10 501 U.S. 312, 320-21 (1991) ................................................................................................................ 35
11 Sanford v. Del Taco, Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18,2006) .................................. 16,22
12 13 Sanford v. Del Taco, Inc.,
No. CIV-S-04-1337-DFLlCMK, 2006 WL 1310318 (E.D. CaL May 12,2006) ................................. 22 14
Speciner v. Nationsbank, NA., 15 215 F. Supp. 2d 622 (D. Md. 2002) ...................................................................................................... 18
16 Spencer v. Kemna, 17 523 U.S. 1 (1998) ........................................................................................................................... 37,39
18 In Association for Disabled Americans, Inc. v. Claypool Holdings LLC, 2001 WL 1112109 (S.D. Ind. Aug. 6,2001) .......................................................................................... 9
19 20 Utah Animal Rights Coalition v. Salt Lake City Corp.,
371 F.3d 1248, 1269 (lOth Cir. 2004) .................................................................................................. 36 21
West v. Secretary ofDept. of Tramp., 22 206 F.3d 920, 925 (9th Cir. 2000) ........................................................................................................ 35
23 White v. Cinemark USA, Inc., 24 No. 04-cv-00397-GEB-CMK, 2005 WL 1865495, at *4 (E.D. Cal. Aug. 3, 2005) ......................... 6, 11
25 Wilson v. Pier 1 Imports (US.), Inc., 2006 WL 947709 (E.D. CaL Apr. 12,2006) ........................................................................................ 21
26 Wilson v. Pier 1 Imports, Inc.,
27 439 F. Supp. 2d 1054, 1067 (E.D. Cal. July 14,2006)............................................................. 11,20,21
28
v
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State Cases
2 Bringle v. Board ofSupervisors, 54 Cal. 2d 86, 89 (1960) ....................................................................................................................... 28
3 Burgdorf v. Funder,
4 246 Cal. App. 2d 443, 449, 54 Cal. Rptr. 805 (Cal. Ct. App. 1966) .................................................... 30
5 Creason v. State Dep't ofHealth Servs., 6 18 Cal. 4th 623, 633, 957 P.2d 1323 (Cal. 1998) ................................................................................. 32
7 Fox v. County ofFresno, 170 Cal. App. 3d 1238 (Cal. Ct. App. 1985) ........................................................................................ 31
8 9 Haggis v. City ofLos Angeles,
22 Cal. 4th 490, 502, 993 P.2d 983 (2000) ........................................................................................... 31 10
Inland Empire Health Plan v. Superior Court, 11 108 Cal. App. 4th 588, 594,133 Cal. Rptr. 2d 735, 740 (Cal. Ct. App. 2003) .................................... 31
12 Morris v. County ofMarin, 13 18 Cal. 3d 901, 908, 136 Cal. Rptr. 251 (Cal. 1977) ............................................................................ 29
14 Sonoma AG Art, LLC v. Departmel1l ofFood and Agriculture, 125 Cal. App. 4th 122, 126,22 Cal. Rptr. 3d 468, 470 (Cal. Ct. App. 2004) ...................................... 27
15 Sutherland v. City ofFort Bragg,
16 86 Cal. App. 4th 13,24,102 Cal. Rptr. 2d 736, 742-43 (Cal. Ct. App. 2000) ..................................... 31 17
Thompson v. City ofLake Elsinore, 18 18 Cal. App. 4th 49 (Cal. Ct. App. 1993) ........................................................................... 28,29,30,31 19 Federal Statutes
20 1990 U.S.C.C.A.N. 303 ............................................................................................................................ 12
21 1990 U.S.C.C.A.N. 445 ...................................................................................................................... 11,15
22 29 U.S.C. § 792(a)(I)(A) ............................................................................................................................ 5 23
29 U.S.C. § 792(a)(2)(B)(b) ....................................................................................................................... 5 24
42 U.S.C. § 12101(b)(2) ........................................................................................................................... 19 25 26 42 U.S.C. § 12181 ...................................................................................................................................... 2
27 42 U.S.c. § 12181(9) ...................................................................................................................... 9,10,17
28 42 U.S.C. § 12183(a)(1) ............................................................................................................................. 3
VI
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Case4:02-cv-05849-PJH Document260 Filed03/23/07 Page8 of 48
42 U.S.C. § 121 83(a)(2) ........................................................................................................................... 17
2
42 U.S.C. § 12188(a)(I) ........................................................................................................................... 36 3
Cal. Bldg. Code § 2-1 02(a) (1981) ........................................................................................................... 26 4 5 Cal. Bldg. Code § 2-105(b)(6) .................................................................................................................. 26
6 Government Code section 818.4 .............................................................................................................. 30
7 ]-LR. Rep. No. 485 ........................................................................................................................ II, 12, 15
8 H.R. Rep. No. 485(11) ......................................................................................................................... 15,16 9 H.R. Rep. No. 485(III) .............................................................................................................................. 15 10
Uniform Building Code § 307(a).............................................................................................................. 29 II
Uniform Building Code § 308(a).............................................................................................................. 29 12 13 Uniform Building Code §§ I 09.1 ............................................................................................................. 29
14 State Statutes
15 Cal. Civ. Proc. Code § 335.1 .................................................................................................................... 18
16 17 Cal. Civ. Proc. Code § 340.3 .................................................................................................................... 19
18 Cal. Civ. Proc. Code §§ 51-52 ............................................................................................................ 21, 22
19 Cal. Gov'! Code § 815.6 ........................................................................................................................... 28
20 Cal. Health & Safety Code § 17980 ......................................................................................................... 31 21
Cal. Health & Safety Code § 19956 ........................................................................................................ 24
22
Cal. Health & Safety Code § 19957 ......................................................................................................... 24 23 24 Cal. Health & Safety Code § 19957.5(c) ............................................................................................ 24, 25
25 Cal. Health & Safety Code § 19958 ......................................................................................................... 24
26
27
28
Vll
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Federal Regulations
2 28 C.F.R. § 36.211(b) ............. ,............................... ,................................................................................... 6 3 28 C.F.R. § 36.304(b) ............................................................................................................................... 14 4
28 C.F.R. § 36.40 I(a)(2) ........................................................................................................................... 14 5
28 C.F.R. § 36.402(b)(1) .......................................................................................................................... 17 6 7 28 C.F.R. § 36.402(c) ............................................................................................................................... 17
8 28 C.F.R. § 36.403(b) ............................................................................................................................... 18
9 28 C.F.R. § 36.403(£)(1) ........................................................................................................................... 17
10 28 C.F.R. § 36.403(g)(2)(i)....................................................................................................................... 18 II 28 C.F.R. § 36.406(a) ................................................................................................................................. 5 12
49 C.F.R. § 37 ........................................................................................................................................... 12 13
49 C.F.R. § 37.3 (2002) ........................................................................................................................... 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Vlll
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MEMORANDUM OF POINTS AND AUTHORITIES

2

I.

3

STATEMENT OF THE ISSUES TO BE DECIDED

4

Defendant Taco Bell Corp. ("Taco Bell") submits that the following issues are to be decided by

5 the instant motion:

6

(I) Whether plaintiffs' motion for paltial summary judgment should be denied as a matter of

7 law to the extent that plaintiffs are relying upon a non-ADA legal standard to determine compliance

8 determinations especially with respect to exterior door opening foree, which is not the subject of an

9 ADA standard.

10

(2) Whether plaintiffs' motion for partial summary judgment should be denied because even

II under the California Building Code standards that plaintiffs seek to invoke, Taco Bell has created a

12 genuine issue of material fact.

13

(3) Whether plaintiffs' motion for partial summary judgment should be denied because the

14 purported issues have been rendered moot by Taco Bell's recent modifications.

IS

II.

16

STATEMENT OF RELEVANT FACTS

17

There are 107 California company-owned Taco Bell stores that were constructed prior to January

18 26, 1993 and at issue in this action, which are identified below. As addressed below, the significance of

19 such date of construction is that a different legal standard applies to such stores, which plaintiffs do not

20 seek to meet via the instant Motion.

21

The legal standard is significant because in the case of exterior doors, the Department of Justice

22 has refused to issue a precise standard, which is probably because of the inherent difficulty in testing

23 and maintaining door opening force especially at exterior doors due to atmospheric and weather-related

24 conditions. (Declaration of Kim Blackseth of 3/22/07 ,,10-12; Declaration of Joseph M. De Bella of

25 3/22/07" 2-3.)

26

In addition, as for the issue of queue lines, Taco Bell cunently has a policy to provide customer

27 assistance to all of its customers, and intends to soon install indoor signage communicating such policy

28 expressly to all of its customers, signage which is very similar to signage that plaintiffs' counsel agreed

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1 to as part of a recent ADA class action settlement with Kmart. (Declaration of Mike Harkins of 3/23/07

2 ~ 7 Ex. 6; Declaration of Richard H. Hikida of 3/23/07 ~ 3.) Indeed, Taco Bell's retained expert, who is

3 mobility impaired and uses a wheelchair, has benefited from such customer assistance policy.

4 (Blackseth Dec!. 'I~ 1, 8, 9.)

5

Further, beginning in the summer and fall of 2006, subsequent to the Special Master's site visits

6 in 2004 and 2005, Taco Bell has performed substantial modification of the issues raised in the instant

7 Motion as follows:

8

•

Taco Bell inspected and replaced door closers at 95 company-owned stores to within the

9 tolerances for exterior and interior doors that plaintiffs rely upon in the Motion. (Declaration of Sabrina

10 Ford of 3/23/07 ~~ 6-70; Declaration of Aaron Kane of3/23/07 ~~ 6-39.)

11

•

Taco Bell removed queue lines at 46 company-owned stores and modified them at 10

12 stores. (Declaration of Sabrina Ford of 3/23/07 ~~ 6-70; Declaration of Aaron Kane of 3/23/07 ~~ 6-39.)

13

•

Taco Bell installed additional designated accessible indoor seating at 31 company-owned

14 stores as requested by plaintiffs in the Motion and modified existing accessible seating at 40 stores.

15 (Declaration of Sabrina Ford of 3/23/07 ~~ 6-70; Declaration of Aaron Kane of 3/23/07 ~~ 6-39.)

16

In addition, Taco Bell intends to implement soon a policy to inspect on a quarterly basis door

17 opening force at all exterior and interior doors intended for use by customers and to retain a qualified

18 outside vendor to make necessary adjustments, as needed. (Harkins Dec!. '1'12-3.) Further, Taco Bell

19 intends to replace additional door closers and remove or modify queue lines voluntarily at stores

20 scheduled for major remodeling in 2008 by no later than May 1, 2007 and replace, remove, or modify

21 door closers and queue lines at all other stores by January 1,2008. (Declaration of Joseph M. De Bella

22 of3/23/07 ~~ 4-7.)

23

III.

24

INTRODUCTION

25

Taco Bell submits that plaintiffs can't have it both ways. On one hand, they have commenced a

26 class action lawsuit whose subject matter jurisdiction is premised under the Americans With Disabilities

27 Act of 1990 ("ADA"), 42 U.S.c. § 12181 et seq., seeking injunctive relief relating to not only stores that

28 were constructed after the January 26, 1993 effective date for new construction specified in the ADA, 42

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U.S .C. § 12l83(a)( I), but also against older stores that would need to be retrofitted at tremendous cost

2 in order to meet current ADA accessibility standards. Congress made it clear when it enacted the ADA

3 that existing facilities would be subject to new construction standards only if such work was "readily

4 achievable", i.e., "easily accomplishable and able to be carried out without much difficulty or expense."

5 In other words, as a compromise, Congress intended to impose only a limited cost on businesses and to

6 balance the need for accessibility by people with disabilities against the costs attendant to altering

7 facilities. Notwithstanding Congress's clear intent, plaintiffs in the instant action seek to distort the

8 careful balance struck by Congress by ignoring the protections afforded by the ADA designed to protect

9 businesses against unlimited remediation costs and the extensive retrofitting offacilities. Plaintiffs do

10 so by rejecting reliance upon the ADA as the basis for their claims for relief pertaining to stores

II constructed prior to January 26, 1993 ("pre-1993 stores"). For the 107 pre-1993 stores at issue in this

12 action, plaintiffs rely instead upon a non-ADA statutory scheme under the California Health and Safety

13 Code and Title 24 of the California Code of Regulations otherwise known as the California Building

14 Code, which does not require the same evidentiary burden upon plaintiffs as the ADA does. Thus, in

15 essence, plaintiffs seek to evade the limitations imposed by Congress upon businesses to retrofit older

16 facilities by relying upon a non-ADA legal standard and, at the same time, use the vehicle of federal

17 subject matter jurisdiction to accomplish this. Principles offairness and equity dictate that the Court not

18 permit plaintiffs to achieve this result, which would undoubtedly encourage other and future ADA

19 plaintiffs to use the same tactic.

20

In order to thwart such tactic from becoming commonplace, the Court should apply exclusively

21 an ADA legal standard to the entirety of the instant action including the 107 stores that were constructed

22 prior to January 26, 1993. Assuming that the COUlt applies the readily achievable standard to the instant

23 action, plaintiffs have not attempted to satisfy their initial burden of suggesting readily achievable

24 barrier removal via competent evidence such as expert witness declarations. Plaintiffs have also failed

25 to satisfy the five-part test to demonstrate the existence of "alterations" within the meaning of the ADA,

26 and cannot overcome the time-bar as to purpOlted "alterations" occurring prior to December 17, 2001.

27 Thus, the Court should deny plaintiffs' motion as to the 107 stores that were constructed prior to January

28 26, 1993.

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As for the stores that were constructed after January 26,1993 that are the subject of the instant

2 Motion (as well as for stores constructed before January 26, 1993), Taco Bell submits that such issues

3 have been rendered moot due to Taco Bell's recent remediation efforts and implementation of

4 appropriate policies designed to provide plaintiffs with "full and equal" enjoyment of Taco Bell's

5 facilities.

6

Alternatively, if the Court proceeds to apply California accessibility standards and regulations to

7 the instant action, then Taco Bell respectfully submits that the Court should enter judgment in favor of

8 Taco Bell as to plaintiffs' ADA claim relating to the 107 stores constructed prior to January 26, 1993.

9 After all, plaintiffs appear either unwilling or incapable of satisfying their threshold initial burden of

10 demonstrating readily achievable barrier removal or "alterations" as to the 107 pre-l 993 stores and have

11 apparently abandoned their ADA claim.

12

In addition, even if the Court applies California accessibility standards and regulations to the

13 instant action in lieu of the ADA standards, the discretionary issuance of certificates of occupancy by

14 the local building official charged with enforcing the accessibility requirements of the California

15 Building Code constitutes prima facie evidence that Taco Bell's facilities were in compliance at the time

16 such facilities were first open for business, thereby creating a genuine issue of material fact that

17 precludes plaintiffs from being granted partial summary judgment. Given that the California Health and

18 Safety Code and the California Building Code itself expressly provide local building officials with the

19 ability to exercise discretion to apply various exceptions to the accessibility standards based upon

20 "practical difficulty", "unreasonable hardship," and other grounds, Taco Bell submits that the trier of

21 fact should be allowed to weigh the significance of such certificates of occupancy and determine

22 whether the local building officials exercised their discretion in favor of certifying compliance with all

23 California Building Code accessibility requirements or implicitly determining that an exemption applied

24 to excuse strict compliance.

25 26 27 A.

IV. ARGUMENT Plaintiffs Have Failed to Satisfy Their Initial Burden of Proof as to Door Opeuiug Force.

28
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1. There Is No Required Standard under the DOJ Standards for Exterior Door

2

Opening Force.

3

It is undisputed that there is no maximum exterior door opening force standard set forth within

4 the DOJ Standards. I Indeed, plaintiffs have cited no standard within the DOJ Standards 2 In

5 Independent Living Resources v. Oregon Arena Corr.. 1 F. Supp. 2d 1124 (D. Or. Mar. 26. 1998)

6 (Ashmanskas, Mag. J.), the district couti held that "the Access Board and DOJ have never promulgated

7 any force standard for exterior doors." Id. at 1155.

8

The DOl's reluctance to impose an exterior door opening force standard is not surprising. The

9 Access Board, which is "the specialized board that Congress entrusted with ensuring agency

10 compliance" with the ADA,) Toomer v City Cab. 443 F.3d 1191. 1196 (10th Cir. 2006). has published

11 A Guide to ADAAG Provisions and, in particular, Scoping and Technical Requirements, which address

12 exterior door opening force. In particular, the Access Board stated:

13

"A maximum opening force is not specified for exterior swing doors because the

closing force required by building codes usually exceeds an 'accessible' resistance.

14

Factors that affect closing force are the weight of the door, wind and other exterior

conditions, gasketing, air pressure, HVAC systems, energy conservation, etc. Research

15

sponsored by the Board ("Automated Doors" by Adaptive Environments Laboratory

(1993» indicates that a force of 15 lb is probably the most practicable as a specified

16

maximum. Considering that closing force is 60% efficient, a 15 Ib maximum for opening

force provides 9 lb for closure and latching, which may be sufficient for most doors."

17

(A Guide to ADAAG Provisions and, in particular, Scoping and Technical Requirements, 4.13.11;

18 Blackseth Dec!. ~~ 10-12; De Bella Dec!. ~~ 2-3.) In fact, the Appendix to the ADAAG expressly

19

recognizes the potential effect of air-pressure differential on the ability to measure door opening force in

20

21

The Department of Justice ("DOJ") has adopted the Architectural and Transportation Barriers

Compliance Board's ("ATBCB" or "Access Board") guidelines as the DOl's own Standards for New

22 Construction and Alterations. 28 C.F.R. § 36.406(a); 28 C.F.R. Part 36, App. A.

2

Plaintiffs' reliance upon defense counsel's proposal is misleading. (Hikida Dec!. ~ 2.) If

23 plaintiffs are so supportive of all of the construction tolerances articulated by the Orange Empire

24 Chapter of ICBO, then plaintiffs should agree to a 4% cross-slope tolerance for a walk that is up to 30

feet in length as recommended by such chapter of the ICBO.

25 J

"The Architectural and Transportation Barriers Compliance Board (' ATBCB') is comprised of

the twelve executive cabinet members and thirteen members of the public, appointed by the President

26 and of whom at least a majority are persons with disabilities. 29 U.S.C. § 792(a)(1 )(A) and (B). The

27 ATBCB conducts investigations, holds public hearings and issues any order it deems necessary to

ensure ADA compliance. Id. at (e). Among the purposes of the ATBCB is to establish and maintain

28 minimum guidelines for ADA compliance and to promote accessibility through all segments of society.

29 U.S.C. § 792(a)(2)(B)(b)." Toomer. 443 F.3d at 1196.

5

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1 at least one specific context. (DOJ Standards, A4.13.11) (high-rise buildings). Thus, whether the

2 HVAC systems are operating properly on a particular day and their effect upon air pressure differentials

3 have much to do with the door opening force that exists on a particular day that a measurement is taken,

4 as recognized by the Access Board. Cherry, et af. v. The City College ofSan Francisco, e/ af., No. C

5 04-04981 WHA (N.D. Cal. slip op. filed Jan. 12,2006) (Alsup, J.) (holding that the plaintiffs failed to

6 meet their burden of proving via a motion for summary judgment that a obstruction was not temporary
7 or isolated); Chapman v. Pier I Imports. No. CIV. S-04-1339 LKK CMK. 2006 WL 168651 L at *10

8 (E.D. Cal. June 19.20(6) (granting summary judgment to an ADA defendant due to the isolated or

9 temporary nature of alleged barriers); 28 C.F.R. § 36.211(b). Indeed, the difficulty in reliably closing

10 and latching a door in light of reduced opening force requirements can potentially create health and

11 safety challenges relating to pest control.

12

There is nothing in the record to indicate that plaintiffs have satisfied their prima facie burden of

13 showing that they cannot open the exterior doors unassisted at the stores at issue and therefore plaintiffs

14 have not shown that the doors in question created a barrier to their effective access. Thus, Taco Bell

15 submits that the Special Master's measurements do not indicate that Taco Bell is in violation of the

16 ADA. Summary judgment should be denied as to the stores listed in Exhibits 3-5 to the Fox declaration.

17 If anything, the Comi should grant Taco Bell summary judgment as a matter of law given the lack of an

18 applicable ADA standard for exterior door opening force. See Chapman v. Pier 1 Imports. No. CIV. S-
19 04-1339 LKK CMK. 2006 WL 1686511, at *II m.D. Cal. June 19.2006) (granting summary judgment

20 to an ADA defendant because the force required to open the entrance door was merely a potential

21 California Building Code violation only) ("Plaintiff fails to cite to any section of ADAAG.").

22

The federal courts have repeatedly and consistently held that "the ADA's general non-

23 discrimination language must be considered in light of the regulatory context of the ADA, rather than

24 evaluated in a vacuum." White v. Cinemark USA. Inc.. No. 04-cv-00397-GEB-CMK. 2005 WL

25 1865495. at *4 (E.D. Cal. Aug. 3. 2005) (Burrell, J.). That is, the ADA's general "full and equal"

26 enjoyment language is not a basis for an ADA claim. Id.; Colorado Cross-Disability Coalition v. Too

27 (Delaware). Inc.. 344 F. Supp. 2d 707. 710 (D. Colo. Nov. 10.2004) (Babcock, J.) (declining to

28 interpret the ADA "generally" under the "full and equal enjoyment" language of 42 U.S.C. § 12182).

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In Independent Living Resources v. Oregon Arena Corp., I F. Supp. 2d 1124 (D. Or. Mar. 26,

2 1998) (Ashmanskas, Mag. J.), the district court refused to require the owner of a sports arena to modify 3 parking spaces because the deviations "do not materially impair usage of the parking spaces." ld. at 4 1153. More recently, in Association tiJr Disabled Americans, Inc., v. COl1corde Gaming Corp" 158 F. 5 SJmp. 2d 1353 (S.D. Fla. Aug. 20, 2001) (Highsmith, J.), the district court held that even if there is not a

6 full eight inches of clearance underneath an accessible lavatory because there was only approximately 6 7 W', there was no evidence that increasing the clearance to 8" would make the lavatories significantly
8 more usable by the plaintiffs. lei. at 1368-69. Based thereon, the court found that the plaintiffs failed to 9 satisfy their initial burden of showing readily achievable barrier removal. lei. at 1369.

10

Here, plaintiffs have failed to satisfy their burden of demonstrating that a door opening force of

II 8.5 pounds for exterior doors or 5 pounds for interior doors deprives the plaintiffs class members of 12 effective access. Indeed, the Access Board's publication ofa proposal for a IS pound maximum is

13 indicative why there remains no maximum door opening force requirement under the DOJ Standards to

14 date nor is there any such maximum in the future edition of the DOJ Standards that is currently

IS proceeding through the rulemaking process.

16

3. Plaintiffs Have Failed to Satisfy Their Prima Facie Readily Achievable Burden of

17

Proof for 107 Stores Constructed Prior to January 26,1993.

18

(a) Readily Achievable Barrier Removal Should Be Easily Accomplishable and

19

Able to Be Carried Out Without Much Difficulty or Expense.

20

"Existing facilities ... must comply with the ADA, but that obligation is governed by the barrier

21 removal provision." Regents o(Mercersburg College v. Republic Franklin [11.1'. Co., 458 F.3d 159, 169

22 (3d Cir. 2006).

23

"To prevail in a claim of discrimination based on an architectural barrier, a plaintiff must show

24 in addition that (1) the existing facility presents an architectural barrier prohibited under the ADA, and 25 (2) the removal of the barrier is 'readily achievable.'" Manl1ick v. Kaiser Foundation Health Plal1, [nc"

26 No. C 03-5905 P.lH, 2006 WL 1626909, at *6 (N.D. Cal. June 9, 2006) (Hamilton, J.). "A finding of

27 noncompliance is not tantamount to finding an ADA violation; plaintiff carries the additional burden of

28
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1 showing that removal of the barriers is readily achievable." Access Now. Inc. v. South Florida Stadium

2 Com. 161 F. SuPp. 2d 1357. 1368 (S.D. Fla. 200 I).

3

Discrimination under the ADA includes "a failure to remove architectural barrier" "in existing

4 facilities" "where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). The term

5 "readily achievable" is defined as "easily accomplishable and able to be carried out without much

6 difficulty or expense." 42 U.S.c. § 12181(9) (emphasis added). In determining whether an action is

7 readily achievable, factors to be considered include--

8

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the

9

action; the number of persons employed at such facility; the effect on expenses and

resources, or the impact otherwise of such action upon the operation of the facility;

10

(C) the overall financial resources of the covered entity; the overall size of the

business of a covered entity with respect to the number of its employees; the number,

11

type, and location of its facilities; and

(D) the type of operation or operations of the covered entity, including the

12

composition, structure, and functions of the workforce of such entity; the geographic

separateness, administrative or fiscal relationship of the facility or facilities in question to

13

the covered entity.

14 (42 U.S.C. § 12181 (9).) In Association f()r Disabled Americans, Inc. v. Claypool Holdings LLe. 2001

15 WL 1112109 (S.D. Ind. Aug. 6.200 II (Tinder, J.), the district court noted that section 12181(9)'s

16 reference to "factors to be considered" "indicates that consideration of all of these factors is required."

17 Id. at *27.

18

(b) The ADA Plaintiff Bears the Initial Burden of Proof to Suggest a Method of

19

Barrier Removal That Is Easily Accomplishable and Able to Be Carried Out

20

Without Much Difficulty or Expense.

21

Plaintiffs have the initial burden of proof to demonstrate that their proposed solution is readily

22 achievable (i.e., easily accomplishable and able to be carried out without much difficulty or expense)

23 under the particular circumstances. Colorado Cross Disability Coalition v. Hermanson Fal11ilv Ltd., 264

24 F.3d 999. 1009 (10th Cir. 200 I) (holding that plaintiff could not prevail because it had made no showing

25 that installing a ramp would be financially or physically readily achievable); see also Gathright-Dietrich

26 v. Atlanta Landmarkl" Inc.. 452 F.3d I?69, 1273 (II th Cir. 2006) (expressly following the Tenth

27 Circuit's Colorado Cross Disability decision with respect to the initial burden of production being

28 imposed upon the plaintiff); id. at 1274 (noting that the plaintiffs failed to provide any detailed cost

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analysis, address economically or operationally the impact on the facility at issue, provide expeli

2 testimony (0 assure the feasibility of the proposed modifications, or address the engineering and 3 structural concerns associated with their proposals).4 "Under the standard enunciated in Colorado

4 Cross, a plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution

5 to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of

6 (he facility. Without evidence on these issues, a defendant cannot determine if it can meet its

7 subsequent burden of persuasion." Gathright-Dietrich, 452 F.3d a( 1273 (emphasis added). "[T]he

8 plaintiffs' evidence ofa barrier, by itself, is not enough to establish a meritorious claim." Compliance

9 Now, Inc. v. Newburv Comics. Inc., 2003 WL 21649937, at *3 (D. Mass. July 10,2003). InNewbury

10 Comics, the district court found that the plaintiffs had not demonstrated that they were likely (0 succeed 11 in their claim that barrier removal is readily achievable. "[Plaintiffs' expeli] offers no opinion of how

12 the ramp could be modified to correct the slope, nor does she estimate the cost or feasibility of

13 remediating the ramp. By failing to offer any evidence regarding the ease with which the interior

14 ramp's alleged shortfalls can be remedied, the plaintiffs have not demonstrated that they can prevail on

15 their claim that a cure is 'readily achievable. '" Id. a( *3.

16

Plaintiffs are undoubtedly familiar with the burden shifting framework articulated in Colorado

17 Cross given that plaintiffs' lead counsel at Fox & Robelison were on the losing end in that case. 18 Numerous district courts within the Ninth Circuit have followed Colorado Cross, in this regard.

19 Monnick v. Kaiser Foundation Health Plan, Inc" No. C 03-5905 PJIL 2006 WL 1626909, at *7 (N.D.

20 Cal. June 9, 2(06) (Hamilton, J.) ("The plaintiff bears the burden of proving the existence of an

21 architectural barrier and suggesting a method of removing the barrier that is readily achievable, or

22 'easily accomplishable and able to be carried out without much difficulty or expense."'); see also Wilson

23

4
24

There is a dearth of Ninth Circuit and other appellate court case authority as to the ADA for a

simple reason. As explained by Chief Judge Gonzalez of the Southern District of California, the

25 predominant reason why new law is not created in accessibility law concerning public accommodations

is because plaintiffs "use the ADA, and its California counterparts, as a [sic] tools of extOliion. Rarely,

26 if ever, do ADA cases filed in the federal court proceed past the discovery stage because experienced

27 ADA plaintiffs have honed their litigation strategies so that it is usually cheaper and more efficient for

defendants to settle than fight these, often meritless, cases." Organization Jar the Advancement oj

28 Minorities with Disabilities Suing on Behalfojits Members and David Singletary v. Brick Oven

Res{((urant, 406 F. Supp. 2d 1120, 113011.8 (S.D. Cal. Sept. 15,2005) (Gonzalez, C.J.).

10

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v. Pier 1 Jmporls, Inc" 439 F. Supp. 2d 1054, 1067 (E.D. Cal. July 14,2006), cited in SanfiJrd v. Del

2 Taco. Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351, at *4 (E.D. Cal. Sept. 18,2006) (Burrell, J.);

3 Chapman v. Pier 1 Imporls. 2006 WL 1686511, at *7 (E.D. Cal. .Tune 19,2006) (Karlton, .T.); While v.

4 Cincmark USA, Inc., No. 04-cv-00397-GEB-CMK, 2005 WL 1865495, at *6 (E.D. Cal. Aug. 3,2005)

5 (Burrell, J.).

6

The readily achievable analysis must be determined on a case by case basis under the particular

7 circumstances. Colorado Cross DisabililY Coalilion v. Hermanson Family Ltd., 264 F.3d 999 (lOth Cir.

8 Aug. 29,2001 ); Guzman v. Dennl' 's lnc., 40 F. Supp. 2d 930 (S.D. Ohio Feb. 4, 1999) (Dlot!, 1.) ("the

9 Department of Justice recommends that determinations of whether an action is readily achievable should

10 be done on a case by case basis."); 56 Fed. Reg. 35544, 35568 ("Whether or not any of these measures

II is readily achievable is to be determined on a case-by-case basis in light of the particular circumstances

12 presented and the factors listed in the definition of readily achievable"».

13

(c) Congress Intended to Balance the Need to Provide Access for Persons With

14

Disabilities and the Desire to Impose Only "Limited Cost" on Businesses.

15

Significantly, "Congress chose not to mandate full accessibility to existing facilities." Regenl,s' of

16 Mercersburg College v. Republic Franklin Ins. Co., 458 F.3d 159, 169 (3d Cir. 2006) ("Regents").

17

"In striking a balance between guaranteeing access to individuals with disabilities and

18 recognizing the legitimate cost concerns o(businesses and other private entities, the ADA establishes

19 different standards for existing facilities and new construction." ADA Preamble to Regulation on

20 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,

21 Pt. 36, App. B, at 645 (emphasis added), quoted in Regents, 458 F.3d at 168 n.12.

22

"Because it costs far less to incorporate accessible design into the planning and construction of

23 new buildings and of alterations [as compared to retrofitting existing structures], a higher standard of

24 'readily accessible to and usable by' persons with a disability has been adopted in the ADA for new

25 construction and alterations." ]-I.R. Rep. No. 485, IOlst Cong., 2nd Sess., pt. 3, at 60 (1990), reprinted

26 in 1990 U.S.C'.C'.A.N. 445, 483 (emphasis added), quoted in Regents. 458 F.3d at 168.

27

In Toomer v. ('ill' Cab, 443 F.3d 1191 (lOth Cir. 2006), the Tenth Circuit recently reiterated that

28 notwithstanding the ADA's broad, general purpose to eliminate discrimination against people with

11
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disabilities, "the ADA does not seek to equalize without exception." Id. at 1195. "The ADA does not

2 require all accommodation at any cost for all disabilities."s Id. (emphasis in original). The court added,

3 "Witness testimony before Congress preceding the passage of the ADA recognized that costs were a

4 consideration in determining which facilities had to be accessible, and what changes had to be made,

5 and Congress balanced accordingly." ld. (emphasis added). In support, apart from citing the ADA's

6 readily achievable barrier removal provision, the Tenth Circuit also cited a portion of the ADA's

7 legislative history, which reads as follows: "Witnesses recognized that it is probably not feasible to

8 require that existing facilities be completely retrofitted to be made accessible. However, it is appropriate

9 to require modest changes. Numerous inexpensive changes can be made to make a facility accessible,

10 including installing a permanent or portable ramp over an entrance step; installing offset hinges to widen

11 a doorway; relocating a vending machine to clear an accessible path; and installing signage to indicate

12 accessible routes and features within facilities." H.R. Rep. No. 485, IOlst Cong., 2nd Sess., pI. 2, at 35-

13 36 (1990) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 303, 317, cited in Toomer, 443 F.3d at

14 1195.

15

"The Act recognizes a balance between the right of disabled persons to enjoy access to public

16 accommodations free of discrimination and the costs attendant to altering facilities constructed before its

17

18 5

As explained in Toomer, the ADA's purpose is to provide "accommodation with certain

limitations." Toomer, 443 F.3d at 1197. For example, in Keirnan v. Ulah Transit Au/h., 339 F.3d 1217

19 (10th Cir. 2003), the Tenth Circuit affirmed the denial of a motion for a preliminary injunction brought

20 by the plaintiff, a paratransit rider, to prevent her state transit authority from enforcing a new rule, which

terminated the eligibility of otherwise eligible paratransit riders under the ADA whose mobility devices

21 exceeded the dimensions and weight of a "common wheelchair." The plaintiffs electric wheelchair

weighed 612 pounds when occupied and was longer than 48 inches when leg rests were included in the

22 length because the plaintiff was unable to bend her knees. Id. at 1218. In agreeing with the district

court's determination that the plaintiff had no reasonable expectation of success on the merits of her

23 case, the Tenth Circuit relied upon the United States Department of TranspOltation's (DOT) "common

24 wheelchair" definition developed by the Access Board, which indicates that a common wheelchair has a

wheelchair/occupant combination weight of up to 600 pounds and whose size dimensions are 30 x 48

25 inches. ld at 1218 n.3, 1219, 1222 (citing 49 C.F.R. § 37.3 (2002). The court held that the interpretive

guidance provided by the DOT, which indicated that oversized wheelchairs did not have to be carried on

26 public transit, was not arbitrary or capricious or manifestly contrary to Title II of the ADA. ld at 1219,

27 1222 (citing 49 C.F.R. § 37, App. D). Thus, the Tenth Circuit held that the implementing regulations of

the ADA and accessibility standards promulgated thereunder were not designed to achieve universal

28 accessibility under all possible scenarios. The Tenth Circuit citcd the Keirnan decision with approval in

7iJOmer v. Cit)! ('ab, 443 F.3d 1191, 1195 (1 Oth Cir. 2006).

12

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enactment." Consistent with this compromise, Title III requires only that a private entity 'take remedial

2 measures that are (a) effective, (b) practical, and (c) fiscally manageable.'" Access Now, Inc. v. South

3 Florida Stadium Com., 161 F, SURP, 2d J357,1369 (S.D. Fla, Sept. 10,2001) (emphasis added),

4

In Association (iJr Disabled Americans, Inc., v. Concorde Gaming Corp., 158 F. Supp. 2d 1353

5 (S.D. Fla, Aug, 20, 2(01) (Highsmith, J,), the district court held, "The compromise that Title III makes

6 is to require only reasonable modifications and readily achievable balTier removals or alternative

7 methods, when the disabled are subjected to de facto discrimination in places of public

8 accommodation," Id. at 1362 n.4 (first emphasis added), "[AJ reasonable modification is one that

9 would not require fundamental alterations to a program, policy, or facility, .. ," lei. at 1362. "[T]he

10 determination of whether a particular modification is 'reasonable' involves a fact specific, case-by-case

11 inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of

12 the disability in question and the cost to the organization that would implement it." Jd. "In sum, with

13 respect to de facto violations, Title III only requires that places of public accommodation take remedial

14 measures that are (a) effective, (b) practical, and (c) fiscally manageable." ld. at 1363.

15

In Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1124 (D. Or. Mar. 26,

16 1998) (Ashmanskas, Mag. J.), the district court refused to require the owner of a sports arena to modify

17 the accessible route (cross-slopes and curb cuts only) to the arena even though there were de minimis

18 and inadvertent violations because the costs associated with remedying violations greatly outweighed

J9 potential benefits. Id. at 1151. The court refused to order relief regarding excessive slopes and cross-

20 slopes, finding that those slopes "are largely dictated by the slope of the adjacent street, the sidewalk

21 and the overall design of the site." lei. at 1151-52. "The court found that slope deviations do not

22 materially impair use of this area for its intended purpose, nor do they pose any apparent danger to

23 persons with disabilities." lei. at 1152. Addressing additional numerous technical violations of the slope

24 standards along accessible routes, the violations were found to be insubstantial and were viewed as not

25 materially affecting the usability of those routes, lei. at 1156. Significantly, the district court was

26 addressing "new construction" because the Rose Garden sports arena was designed for first occupancy

27 after January 26, 1993 and the last building permit or permit extension was certified after January 26, 28

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1992. 28 C.F.R. § 36.401 (a)(2). Independent Living Resources v. Oregon Arena Corp., 982 F. Supp.

2 2d 698, 706 (D. Or. Nov. 12, 1997) (Ashmanskas, Mag. J.).

3

In Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698, 727 (D. Or. Nov.

4 12,1997) (Ashmanskas, Mag. J.), the district court stated, "There is a vast gulf between the two

5 standards" i.e., ADAAG and standards for existing facilities. Id. at 770 n.98. "The COUlt further

6 observes that the ADA applies different standards to new construction than for existing buildings." Id.

7 at 773.

8

In Eckert v. Westfield Corp., 2002 WL 32986571 CE.D. Cal. Dec. 20, 2002) (Karlton, J.), the

9 district court stated, "Far less stringent is the demand upon preexisting facilities that are not deemed

10 altered." Id. at *4 (emphasis added).

11

In Mannick v. Kaiser Foundation Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909

12 (N.D. Cal. June 9, 2006) (Hamilton, J.), the district court held, "Although existing facilities are not

13 required to comply with the ADAAG (unless they have been altered), the ADAAG nevertheless

14 provides guidance for determining whether an existing facility contains architectural barriers." Id. at *6.

15 "However, deviations from the ADAAG are not necessarily determinative in establishing barriers to

16 access." ld. at *6 (citing ADAAG 2.2 on equivalent facilitation). The district court also held, "The

17 demand upon preexisting facilities that are not deemed altered is much less stringent." ld. at *5. The

18 examples of steps to remove barriers provided by the applicable regulations include repositioning

19 shelves, rearranging tables, chairs, vending machines, display racks, and other furniture. 28 C.F.R. §

20 36.304(b).

21

In Access Now, Inc. v. South Florida Stadium Corp., 161 F. SupP. 2d 1357 (S.D. Fla. Sept. 10,

22 200 I ), the district court made reference to the "'substantially less rigorous' standard of compliance

23 contemplated for existing facilities under the Act." ld. at 1368 (emphasis added) (citing 28 C.F.R. part

24 36, App. B (commentary)). Indeed, Appendix B to Part 36, constituting the Preamble to the final

25 regulation on nondiscrimination on the basis of disability by public accommodations states, "The

26 ADA's requirements for readily achievable barrier removal in existing facilities are intended to be

27 substantially less rigorous than those for new construction and alterations." It also states, "Congress
28
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intended that the requirements for barrier removal in existing facilities be substantially less rigorous than

2 those required for new construction and alterations ...."

3

In Colorado Cross-Disability Coalition v. Too (Delaware), Inc.. 344 F. Supp. 2d 707 (D. Colo.

4 Nov. 10.2004) (Babcock, J.), the district court noted that while Congress contemplated the costs to

5 businesses to retrofit existing buildings and decided that the more flexible readily achievable standard

6 was warranted instead of the readily accessible standard. The district court stated, "Because it costs far

7 less to incorporate accessible design into the planning and construction of new buildings and of

8 alterations, a higher standard of 'readily accessible to and usable by' persons with a disability has been

9 adopted in the ADA for new construction and alterations." H.R. Rep. No. 485, lOlst Cong., 2nd Sess.,

10 pt. 3, at 60 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 483.

II

"This section [12182(b)(2)(A)(iv)] reflects the balance between the need to provide access for

12 persons with disabilities and the desire to impose limited cost on businesses. Because retrofitting

13 existing structures to make them fully accessible is costly, a far lower standard of accessibility has been

14 adopted for existing structures--a standard of 'readily achievable.' Because it costs far less to

15 incorporate accessible design into the planning and constructing of new buildings and of alterations, a

16 higher standard of 'readily accessible to and usable by' persons with disabilities has been adopted in the

17 ADA for new construction and alterations." H.R. Rep. No. 485(TIJ) at 60. lei. at 71 I.

18

The district court added: "The purpose of [12182(b)(2)(A)(iv)] is to provide individuals with

19 disabilities access to a representative selection of merchandise available in a department. ... A public

20 accommodation would not be required to provide physical access if there is a flight of steps which

21 would require extensive ramping or an elevator. The readily achievable standard only requires physical

22 access that can be achieved without extensive restructuring or burdensome expense." H.R. Rep. No.

23 485(11} at 110. lei. at 712 (emphasis added). The district court also added, "When built-in and "fixed"

24 structures are designed to be accessible before the building is constructed, the costs are readily

25 asceltainable and can be assimilated into the overall budget. lei. at 71 I. "It makes sense that when an

26 older building has to 'retrofit' to comply with ADA standards that became law after the building was

27 constructed, retrofitting costs are unexpected, and often are a burden to the existing building owner or

28 business operator."
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A higher standard applies to new construction and alterations because it costs "far less" than 2 retrofitting existing structures. Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d

3 698. 713 (D. Or. Nov. 12, 1997) (Ashmanskas, Mag. J.) (H.R. Rep. No.1 01-485(III) at 60, reprinted at

4 1990 U.S.C.C.A.N. 445, 483).

5

(d) The Defendant's Financial Resources Are Not Dispositive.

6

In Sanf(ml v. Del Taco, Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 fE.D. Cal. Sept. 18,

7 2006) (Burrell, l), the district court found a factual dispute as to whether the barrier removal is readily

8 achievable even though the plaintiff cited the defendant Del Taco, Inc.'s alleged profits of over $35

9 million over the past year and the cost of removal of "all barriers" as approximately $14,000. Id. at *5.

IO Significantly, the district cOUli found a factual dispute based on combining the entire cost of "all"
11 barriers instead of segregating them one by one. Id. at *5.

12

In Mannick v. Kaiser Foundation Health Plan, Inc.. No. C 03-5905 PJH, 2006 WL 1626909

13 (N.D. Cal. June 9,2006) (Hamilton, l), the district court found that the plaintiff had not satisfied his

14 burden of showing that the requested barrier removal was readily achievable. The district court noted 15 that "[t]he amount of Kaiser's overall financial resources is only one of the factors to be considered and

16 noted, "Plaintiff has failed to incorporate the other factors into the calculus, such as the expense and

17 difficulty of removing the barriers, the impact of barrier removal on Kaiser's ability to provide medical

18 care to its patients, and whether the existing facility's alterations were made solely for the purpose of
19 removing accessibility barriers." Id. at *12 (emphasis added).

20

(e) Plaintiffs Have Failed to Satisfy Their Initial Burden.

21

There are 107 stores that were constructed prior to January 26, 1993 that are at issue in this

22 action 6 Taco Bell has asserted that the requested barrier removal is not readily achievable as its Fifth

23 Affirmative Defense. (See First Amended Answer of 12/21104 at 5:22-24.)

24

25 6

Those stores are store numbers 18,30,76,106,112,137,158,176,283,526,567,829,863,955,

991,1034,1496, 1603, 1827,2241,2297,2423,2700,2755,2756,2778,2801,2812,2848,2861,2910,

26 2914,2915,2918,2930,2933,2961,2968,2971,2984,3027,3046,3055,3064,3071,3077,3078,

27 3089,3090,3096,3119,3125,3128,3129,3130,3132,3160,3184,3207,3208,3209,3222,3241,

3390,3398,3420,3471,3473,3498,3555,3579,3904,3948,4027,4034,4054,4168,4192,4204,

28 4211,4284,4311,4325,4342,4343,4355,4356,4466,4510,4518,4558,4578,4586,4611,4617,

4622,4633,4661,4704,4799,4862,4951,5019,5081,5138,5223,5259.

16

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Here, in many instances, especially in the case of interior doors, plaintiffs request the installation

2 of automatic door openers, which are expensive and subject to potentially frequent maintenance

3 problems due to both vandalism and wear and tear. In addition, there is nothing in the record to indicate

4 that the installation of automatic door openers is "easily accomplishable and able to be carried out

5 without much difficulty or expense." 42 U.S.c. § 12181(9). Thus, plaintiffs have failed to meet their

6 initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Calrell.

7 477 U.S. 3\7. 323 (1986).

8

4. Plaintiffs Have Failed to Satisfy Their Prima Facie Burden of Proof to Demonstrate

9

"Alterations" for 107 Stores Constructed Prior to January 26,1993.

10

(a) Plaintiffs' Alterations Inquiry Requires a Five-Part Factual Iuquiry.

11

Plaintiffs also seek to escape from a complex inquiry as to whether any of the existing facilities

12 were altered within the meaning of the ADA. The regulations implementing the ADA provide:

13

"Alterations include .. remodeling, renovation, rehabilitation, reconstruction,

historic restoration, changes or rearrangement in structural parts or elements, and changes

14

or rearrangement in the plan configuration of walls and full-height partitions. Normal

maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to

15

mechanical and electrical systems are not alterations unless they affect the usability of the

building or facility." 16
28 C.F.R. § 36.402(b)(l).

17

"Where the entity is undertaking an alteration that affects or could affect usability

18

Qj or access to an area o{the facility containing a primary function, the entity shall also

make the alterations in such a manner that, to the maximum extent (easible/ the path of

19

travel to the altered area and the bathrooms, telephones, and drinking fountains serving

the altered area, are readily accessible to and usable by individuals with disabilities where

20

such alterations to the path o{travel or the bathrooms, telephones, and drinking fountains

serving the altered area are not disproportionate to the overall alterations in terms ofcost

21

and scope (as determined under criteria established by the Attorney General."

22 42 U.S.c. § 12183(a)(2) (emphasis added). "Alterations made to provide an accessible path of travel to

23 the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of

24 the cost o(rhe alteration to the primary function area." 28 C.F.R. § 36.403(£)(1 ). "Only alterations

25 undertaken atier January 26, 1992, shall be considered in determining if the cost of providing an

26 accessible path of travel is disproportionate to the overall cost of the alterations." 28 C.F.R. §

277

The phrase "to the maximum extent feasible" "applies to the occasional case where the nature of

28 an existing facility makes it virtually impossible to comply fully with applicable accessibility standards

through a planned alteration." 28 C.F.R. § 36.402(c).

17

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1 36.403(g)(2)(i) (emphasis added). Thus, it is a prerequisite to analyze whether the potential cost of

2 providing an accessible path of travel or restroom serving the altered area is disproportionate to the

3 overall cost of the alterations undertaken after January 26,1992. Based on the foregoing, it is clear that

4 the alteration analysis under the ADA is not so simple as plaintiffs make it appear to be. First, the Court

5 would need to determine whether an "alteration" within the meaning of the ADA, occurring after

6 January 26, 1992, has taken place. Second, assuming that an "alteration" has taken place, the Court

7 would need to determine whether the location of the "alteration" constitutes an area containing a 8 primary function. 8 Third, the Court would need to analyze whether, in fact, such area has been altered

9 without providing an accessible path of travel or accessible restroom. Fourth, the Court would need to

10 determine whether the facility has been altered "to the maximum extent feasible." Fifth, the Court

11 would need to undertake a disproportionality analysis, requiring information as to the costs of the

12 requested alterations to the path of travel to the altered area or the restrooms as well as information as to

13 the overall cost of the alterations to the primary function area. It is, therefore, not surprising that

14 plaintiffs have evaded the foregoing five-part alterations test in the instant Motion.

15

(b) Alterations Between January 27, 1992 and December 16, 2001 Are Time-

16

Barred.

17

In Speciner v. Nationsbank. M.A., 215 F. Supp. 7d 622 (D. Md. 2(02) (Garbis, J.), the district

18 court held that alterations claims were subject to a statute of limitations and applied the most analogous

19 state law statute of limitations to find that certain 1994 alleged "alterations" were time-barred. Id. at

20 634-35. "The statute of limitations for bringing a claim under the ADA, the California Disabled Persons

21 Act, or the Unruh Act is one year." Fickem v. Best Western Timber Cove Lodge Marina Resort, No.

22 CIV. S-00-1637 WBS/DA, 2002 WL 202442, at *5 (E.D. Cal. Jan. 18,2002) (Shubb, J.).

23

In California, the current personal injury statute, Cal. Civ. Proc. Code § 335.1, became effective

24 on January 1,2003. The Ninth Circuit has held that it is not retroactive. Maldonado v. Harris, 370 F.3d

25 945.955 (9th Cir. 2004). Thus, before then, the statute of limitations was a mere 1 year period. (former

26

8

The DOl's regulations expressly exclude restroom modifications from constituting an area

27 containing a "primary function." 28 C.F.R. § 36.403(b). Thus, the numerous references to purported

28 restroom "alterations" cited by plaintiffs throughout the meet and confer process are meaningless for

purposes of determining what constitutes an "alteration" within the meaning of the ADA.

18

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Cal. Civ. Proc. Code § 340.3.) Thus, given that the instant action was filed on December 17,2002,

2 while the former one year limitations period was still in effect in California, only "alterations" within

3 the meaning of the ADA that occurred on or after December 17,2001 to existing facilities are at issue.

4 In other words, assuming arguendo that Taco Bell made "alterations" to existing facilities between

5 January 27,1992 and December 16,2001, those alterations are time-barred.

6

5. The Court Should Not Allow Plaintiffs to Evade Their Evidentiary Burden of

7

Demonstrating Readily Achievable Barrier Removal or the Existence of Alterations

8

For Stores Constructed Prior to January 26, 1993 By Applying a Non-ADA

9

Standard Such as the Califoruia Building Code to the Instant Action.

10

(a) Plaintiffs Should Not Be Allowed to Bootstrap Non-ADA Standards and

I 1

Evade the Careful Balance Struck By Congress in Enacting ADA Standards

12

Including Limitations on Accessibility.

13

Instead of addressing plaintiffs' burden to satisfy the readily achievable barrier removal

14 provisions of the ADA and the requirements for demonstrating an "alteration" for stores that were

15 constructed prior to January 26, 1993, plaintiffs seek to evade such evidentiary burden by relying

16 instead upon California Building Code provisions as the predicate for their claims relating to 107 stores

17 constructed prior to January 26,1993. Simply put, plaintiffs' attempt to apply California's Title 24 legal

18 standards in lieu of the federal ADA requirements is a transparent attempt to bootstrap federal subject

19 matter jurisdiction while at the same time evade federal evidentiary burdens that were carefully designed

20 to avoid businesses from falling victim to extreme remediation measures. The Court should not tolerate

21 this evasion of the careful balance struck by Congress in enacting the ADA standards with certain

22 limitations on accessibility in order to ensure swift passage.

23

The Court's consideration of non-ADA standards applying different legal standards would

24 contradict Congressional intent underlying the ADA. One of the express purposes of the ADA is to

25 provide "clear, strong, consistent, enforceable standards addressing discrimination against individuals

26 with disabilities." 42 U.S.C. § 12101 (b)(2) (emphasis added). Another express purpose of the ADA is

27 "to ensure that the Federal Government plays a central role in enforcing the standards established in this

28 chapter on behalf of individuals with disabilities." ld. § 12101 (b)(3) (emphasis added). Significantly,

19
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the purpose of the ADA is not to ensure that the Federal Government, including the federal judiciary,

2 plays a central role in enforcing any and all accessibility standards. Applying a non-ADA standard here

3 would do precisely that. Indeed, the DOJ has yet to certify the California Building Code as meeting or 4 exceeding the DOJ Standards. (Blackseth Decl. ~ 15.)

5

Plaintiffs can't have it both ways. If federal court subject matter jurisdiction is premised upon

6 the ADA, then the Court should apply ADA standards only. Otherwise, the Court should decline to

7 exercise supplemental jurisdiction over plaintiffs' state law claims or apply state accessibility law to

8 avoid creating a perverse incentive by rewarding plaintiffs (and future ADA plaintiffs who will

9 undoubtedly seek guidance from the rulings in the instant action and flood the federal courts with

10 similar bootstrapping lawsuits) with a federal court venue to raise purely state law claims that ignore

II federal standards designed to balance competing interests. Thus, notwithstanding plaintiffs' affirmative 12 election to disavow their evidentiary burden of proof to demonstrate readily achievable barrier removal

13 or alterations, the Court should hold plaintiffs to such burden as to the 107 stores that were constructed

14 prior to January 26, 1993 at issue in this action and decline to exercise supplemental jurisdiction over 15 plaintiffs' state law claims, at minimum, to the extent that injunctive relief is being sought.

16

(b) Several Recent Published Federal District Court Decisions Reflect that the

17

DOJ Standards Are the Only Standards that Should Be Considered.

18

Plaintiffs rely upon California Bnilding Code standards in lieu of the DOJ Standards with respect

19 to applying an exterior door opening force standard. Plaintiffs' reliance is misplaced. In recent years, as

20 addressed below, multiple federal district courts have held in published decisions that there is no

21 architectural barrier that violates the ADA that can be premised upon a proffered non-ADA standard.

22

For example, in Wilson v. Pier I imports (US). Inc.. 439 F. Supp. 2d 1054 fE.D. Cal. July 14,

23 2006) (Karlton, J.),9 the district court issued an amended order that is highly significant because it

24 eliminated any and all analysis of California's Title 24 accessibility standards (California Building

25 Code) in contrast to the original published order issued on April 12,2006. Wilson v. Pier 1 imports

26

27 9

The Wilson amended order incorporates by reference the analysis in Eiden v. Home Depot USA.

Inc.. No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418 CE.D. Cal. May 26. 2006) (Karlton, l), a

28 published opinion in which Taco Bell's lead defense counsel was lead defense counsel in that case as

well. 20
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(US), Inc., 2006 WL 947709 IE.D. Cal. Apr. 12,2006). The district court held, "I conclude that

2 compliance with the ADAAG, and not another standard, constitutes compliance with the ADA

3 requirements." !d. at 1066. The court also held that "the court concludes that the ADAAG constitutes

4 the exclusive standards under Title III of the ADA." Jd.; Chapman v. Pier I Imports, No. CIY. S-04-

5 1339 LKK CMK, 2006 WL 1686511, at *7 IE.D. Cal. June 19,2006) (Karlton, l) (same); Eiden v.

6 Home Depot USA. Inc.. No. CIY S04-977 LKK/CMK, 2006 WL 1490418, at *8 iE.D. Cal. May 26,

7 2006) (Karlton, J.) (same). Thus, there is no mistake as to the meaning of Judge Karlton's amended

8 published order.

9

Similarly, in Chapman v. Pier I Imports, 2006 WL 1686511 iE.D. Cal. June 19,2(06) (Karlton,

10 J.), the district court granted summary judgment to the defendant as to the claim that the entrance door

11 opening force was excessive because the court held that it was only subject to the California Building
12 Code. The court held, "Plaintiff fails to cite to any section of ADAAG." Id. at *II.

13

Judge Karlton's trilogy of published decisions are not alone in rejecting consideration of

14 California Building Code standards.

15

Recently, in Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK (E.D. Cal. Feb. 12,

16 2007) (Levi, J.), Chief Judge Levi denied in part an ADA plaintiffs motion for summary judgment,

17 despite accepting as true the plaintiffs factual allegations, because several alleged barriers were

18 premised upon non-ADA regulations such as the California Building Code, which "are irrelevant for
19 ADA purposes." Id. at *I (emphasis added). The district court added, "The ADA Accessibility

20 Guidelines for Buildings and Facilities (ADAAG) are the exclusive standards for judging compliance
21 with the ADA." Id. at *I (emphasis added). Thus, with respect to the allegation that there was a lack of

22 tow-away signs at the parking lot entrance, the district court held, "The absence of tow-away signs at the

23 parking lot entrance does not violate the ADA." Jd. at *2. Thus, instead of applying the California

24 Building Code requirement for tow-away signage, 10 the district court applied only the ADAAG as the

25 standard even for violations of the Unruh Civil Rights Act, Cal. Civ. Proc. Code §§ 51-52.

26

In Sal7{iJrd v De! Taco. Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 m.D. Cal. Sept. 18,

27 10

Title 24 of the California Building Code requires tow-away signage either at the parking

28 entrance to a public accommodation or visible from parking spaces themselves. (Cal. Code of Regs.,

Title 24, § 1129B.5 (2002).) 21

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20(6) (Burrell, 1.), the district court rejected the claim that the exterior door was governed by an ADA

2 standard. "The ADAAG places a five pound limit on force required to open interior doors; however,

3 there is no similar restriction placed on exterior doors." Jd. at *3 (citing ADAAG 4.13.11) (emphasis

4 added). The district court then quoted from page *2 ofSanfbrd v. Del Taco, l!1c., No. CIV-S-04-1337-

5 DFLlCMK, 2006 WL 1310318 CE.D. Cal. May 12,2(06) (Levi, J.), "Because the ADAAG does not

6 define the requirement for exterior door pressure, [plaintiff! has the burden to show that the door created
7 a barrier to his access." lei. at *2. The court then held, "Plaintiff admits he was able to open the 8 entrance door unassisted and therefore he has not shown the door created a barrier to his access." lei. at

9 *3; see also Wilso!1 v. Norbreck LLC, No. Civ. S-04-690 DFL JFM, slip. op. at 9 (E.D. Cal. Sept. 15, 10 2006) (Levi, J.) (finding that the effective date of the 2001 California Building Code is November 2002

11 and so the 8.5 pounds standard was controlling under state law, but addressing the federal standard,

12 finding that the plaintiff's "disability is not so severe that a door pressure in this range presents a barrier

13 to him.").

14

In Harris v. Coslco Wholesale Corp.. 389 F. Supp. 2d 1244 (S.D. Cal. 2005) (Lorenz, J.), the

15 district court held that the lack of path of travel signs did not violate the ADA regardless of whether

16 such signs were required by California law. ld. at 1051.

17

Despite the fact that Taco Bell addressed most of the foregoing recent published decisions in

18 Taco Bell's January 12,2007 submission to the Court, plaintiffs failed to address any such decisions

19 despite their obvious relevance to the issues at hand. Given the clear trend in the federal district courts

20 located in the Ninth Circuit towards applying only the ADAAG standards to an ADA action, the Court

21 should follow the clear trend as well by not applying a non-ADA standard to the instant action.

22

(c) There Arc Numerous Discrepancies Between the DOJ Standards and the

23

California Building Code,

24

The discrepancy between the DOJ Standards and the California Building Code with respect to

25 exterior door opening force is just one example of numerous discrepancies between the two sets of

26 standards. The following is a non-exhaustive summary of significant distinctions between the DOJ

27 Standards and Title 24:

28
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•

Title 24 requires a 48" wide path of travel in an exterior walk, (Cal. Code of Regs., Title

2 24, § 1133B.7.1 (2002), but requires a 36" minimum width aisle in a building. (Cal. Code of Regs.,

3 Title 24, § I 133B.6.2 (2002).) Elements 3 of the Special Master's Interim Survey Report addresses such

4 Issue. The DOJ Standards require a minimum of 36" minimum width. (DOJ Standards, 4.3.3.)

5

•

Title 24 requires tow-away signage either at the parking entrance to a public

6 accommodation or visible from parking spaces themselves. (Cal. Code of Regs., Title 24, § 1129B.5

7 (2002).) Element 103 of the Special Master's Interim Survey Report addresses such issue. The DOJ

8 Standards contain no such requirement or any equivalent analogue.

9

•

Title 24 requires a Y, inch beveled lip at the lower end of each curb ramp. (Cal. Code of

10 Regs., Title 24, § 1127B.5.5 (2002).) In contrast, the DOJ Standards do not require such lip to exist or

II any equivalent analogue.

12

•

Title 24 requires restroom grab bars to be located precisely 33" above the floor (unless

13 the toilet tank obstructs the rear wall grab bar), but the DOJ standards provide instead a 33" to 36"

14 range. (Cal. Code of Regs., Title 24, § 1115B.8.1 (2002»; DOJ Standards, Fig. 29(a) & (b), 30(c) &

IS (d).) Elements 452, 453,584,585 of the Special Master's Interim Survey Report address such issues.

16

•

Title 24 requires the front end of the side wall grab bar to be positioned precisely 24" in

17 front of the water closet. (Cal. Code of Regs., Title 24, § 1115B.8.1 (2002).) In contrast, the DOJ

18 Standards do not require such measurement, but instead require that the front end of the side grab bar be

19 positioned a minimum of 54" from the rear wall in a water closet. (DOJ Standards, Fig. 29(b).)

20 Elements 447 and 579 of the Special Master's Interim Survey Report address the front end of the side

21 wall grab bar to the front of the water closet.

22

•

Title 24 allows a clear T-shaped wheelchair turning spaee to be "56 inches by 63 inches"

23 in size. (Cal. Code of Regs., Title 24, § 1115B.7.1.1 (2002).) In contrast, the DOJ standards provide

24 that a clear T-shaped turning space have arms that are 60" long and the base be 60" long if one includes

25 the length of the "T". (DOJ Standards, Fig. 3(b).) Elements 418, 438,550, and 570 address the turning

26 space inside a restroom.

27

In addition, Title 24 expressly recognizes that either a lateral or front transfer toilet stall provides

28 equivalent facilitation. (Cal. Code of Regs., Title 24, § 2-1711, Fig. 17-IC.) Thus, as long as a stall has

23
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48" minimum distance at the front end of the toilet to the front of the stall and 32" minimum clear space

2 from the side edge of the toilet to the furthest wall, such space provides equivalent facilitation under

3 Title 24. (Cal. Code of Regs., Title 24, Fig. IIB-IC.)

4

Thus, if the Court was to only apply the ADAAG instead of Title 24 standards, the scope o[the

5 instant action would be significantly narrowed.

6

(d) Section 19957 of the Health and Safety Code Provides Local Building

7

Departments With Discretion to Enforce the California Building Code.

8

Part 5.5 of Division 13 of the California Health and Safety Code addresses access to public

9 accommodations by persons with disabilities. Section 19956 of the California Health and Safety Code

10 provides in relevant part that "[a]ll public accommodations constructed in this state shall conform to the

II provisions of Chapter 7 (commencing with Section 4450) of Division 5 of Title I of the Government

12 Code." (Cal. Health & Safety Code § 19956.) Section 19958 provides that "[t]he building department

13 of every city, county, or city and county shall enforce this part within the territorial area of its city,

14 county, or city and county." (Cal. Health & Safety Code § 19958.) Section 19957 of the California

IS Health and Safety Code, however, provides, "In cases of practical difficulty, unnecessary hardship, or

16 extreme differences, a building department responsible for the enforcement of this part may grant

17 exceptions from the literal requirements of the standards and specifications required by this part or

18 permit the use of other methods or materials, but only when it is clearly evident that equivalent

19 facilitation and protection are thereby secured." (Cal. Health & Safety Code § 19957) (emphasis

20 added). In addition, section 19957.5 of the California Health and Safety Code provides the authority for

21 a city to appoint a local appeals board to hear written appeals brought by any person regarding action

22 taken by the building department of any city in enforcement of Part 5.5 of Division 13 of the California

23 Health and Safety Code, which addresses access to public accommodations by persons with disabilities.

24 Such appeals board "may approve or disapprove inlel]Jretations of this part" and enforcement actions

25 taken by the building department of the city. (Cal. Health & Safety Code § 19957.5(c) (emphasis

26 added).) The use of the term "interpretations" implies the exercise of discretion. Further, such

27 approvals or disapprovals are final as to the building depattment in the absence of fraud or prejudicial

28 "abuse of discretion." ld. (emphasis added).

24
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Thus, section 19957 makes it clear that the local building officials of the respective

2 municipalities in California have discretion to apply the California Building Code and to grant

3 exceptions to such standards.

4

(e) Title 24 Itself Provides Local Buildiug Departments With Discretion to

5

Enforce the California Building Code.

6

Title 24 itself provides local building officials with discretion to enforce Title 24. For example,

7 an analysis of a cross-slope of a walk or sidewalk constructed under the original version of Title 24 in

8 effect in 1982 requires an analysis as to whether the local building official determined that there was an

9 unreasonable hardship based on local conditions thereby allowing the cross slope of a walk or sidewalk

10 to be a maximum y, inch per foot or 4.167% for distances not to exceed 20 feet. (Cal. Code of Regs.,

II Title 24, § 2-3323(a) (1982).) Similarly, the 1982 edition of Title 24 provides an exception to the

12 general requirement that sanitary facilities shall conform to certain accessibility requirements. (See,

13 e.g., Cal. Code of Regs., Title 24, § 2-1711 (1982).) In particular, Title 24 provided:

14

"In existing buildings or facilities, when the enforcing agency determines that

compliance with any building standard under this section [applicable to sanitary facilities]

15

would create an unreasonable hardship, an exception to such standard shall be granted

when equivalent facilitation is provided." 16
Id. Similarly, the current version of Title 24 provides, "In existing buildings, the provisions of this

17 section [1134B] shall not apply when legal or physical constraints will not allow compliance with these

18 building standards or equivalent facilitation without creating an unreasonable hardship." (Cal. Code of

19 Regs., Title 24, § I 134B.3.1.2 (2002) (emphasis added).) Courts have recognized that the exercise of

20 discretion is inherent in order to find an unreasonable hardship in other contexts. See, e.g., CPJI!/

21 Comm1lnications. 1.1.(.' v. Mitts Teiecasling Co.• 424 F. SURP. 2d 1229. 1239-40 (ED. Cal. 20(5)

22 (holding that under California law, specific performance is a discretionary remedy that may be refused

23 if granting it would cause unreasonable hardship or loss to the party in breach or to third persons)

24 (Coyle, J.).

25 Similarly, the 1982 version of Title 24 provided that the determination of whether ramps located

26 at the front of disabled parking spaces provide equivalent facilitation requires an analysis of the local

27 building official. (Cal. Code of Regs., Title 24, § 2-7 I 02(b) (1982).)

28

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The 1982 version of the California Building Code also expressly provided, "It is not the intent of

2 this section that every existing occupancy within the scope of the State Fire Marshal's jurisdiction,

3 mandatorily conform or be made to conform to the new construction requirements relative to fire, panic

4 and explosion safety. Reasonable judgmenlmust be exercised by the enforcing agency in the

5 application of these building standards to existing occupancies." (Cal. Bldg. Code § 2-l02(a) (1981)

6 (emphasis added». The requirement that "reasonable judgment" be exercised by the enforcing agency

7 has remained in Title 24 to the present. (Cal. Code of Regs., Title 24, § 101.3.1 (2002).)

8

Historically, the local building department has been designated as the enforcing agency tasked

9 with the responsibility of ensuring compliance with applicable Building Code standards. (Cal. Bldg.

10 Code § 2-105(b)(6) & (11)(C)(3) (1981).) This remains in effect to date. (Cal. Code of Regs., Title 24,

II § 101.17.11.4.3.) Thus, the judgment, expertise and discretion of the local building officials and their

12 staff are expressly required to evaluate whether existing occupancies comply with the California

13 Building Code.

14

(i) In Practice, Local Building Officials Grant Unreasonable Hardship

15

Exemptions Retroactively.

16

To the extent that plaintiffs assume that Taco Bell has not received unreasonable hardship

17 exemptions from local building officials and so Taco Bell is forever barred from being deemed exempt,

18 this assumption is mistaken. Taco Bell's expert witness, a former Commissioner of the California

19 Building Standards Commission, has opined that in his personal experience as an ADA consultant, he

20 has prepared and local building officials have granted hardship exemptions retroactively. (See

21 Blackseth Decl. 3/22/07 ~ 14.) Thus, even assuming that the Comi determines that Taco Bell has not

22 received hardship exemptions to date, Taco Bell is entitled to seek and obtain such exemption

23 retroactively.

24

(ii) As a Practical Matter, the Local Building Official Might Not Issue

25

Formal Hardship Determinations to Both Municipalities aud Public

26

Accommodations.

27

To illustrate the local building official's discretion to "determine" the applicability of a hardship

28 exemption, Title 24 provides the local building official with discretion to avoid the 48" minimum width

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standard for a sidewalk and reduce the standard to only 36" if the local building official "determines"

2 that compliance would create an "unreasonable hardship" because of right-of-way restrictions, natural

3 barriers or other existing conditions. (Cal. Code of Regs., Title 24, § 1133B.7.1.3 (2002).) Such

4 restrictions or obstructions are so common along a public sidewalk such that one can literally pick a

5 random sidewalk adjoining a curb ramp at the corner intersection of a street at virtually any municipality

6 and probably find that there is not 48" minimum width for a sidewalk adjoining the curb ramp due to an

7 obstruction posed by either the street light itself or by the right-of-way restrictions or other barriers

8 limiting the width of the public sidewalk. Indeed, Taco Bell has determined that several municipalities

9 in which it operates company-owned stores do not appear to be familiar with the issuance of hardship

10 exemptions by local building officials. (Hikida Decl. ~ 5.) The Court can and should take judicial

11 notice of the fact that local building officials do not necessarily make a formal "determination" of

12 "unreasonable hardship" that is documented prior to or even after construction on such sidewalk has

13 been performed. If such local building officials do not make such formal determination for

14 municipalities, then it follows that such formal determination is typically not made for public

15 accommodations prior to the issuance of a certificate of occupancy.

16

(I) The Issuance of Certificates of Occupancy by the Local Building Officials

17

Tasked with Enforcing the California Building Code Indicates That Such

18

Officials Exercised Their Discretion to Determine that the Stores In Question

19

Complied with the California Building Code.

20

Even assuming that this Court were to analyze the instant Motion under Title 24 standards

21 (which are not applicable for the reasons explained above), plaintiffs fail to appreciate that the

22 certificates of occupanci I issued by the local building officials charged with enforcement of the

23 accessibility provisions of the California Building Code as well as other requirements constitute prima

24 facie evidence that each of the stores were constructed in compliance with the California Building Code.

25 (See Request for Judicial Notice Exs. 1-38.) The Court can and should infer that the issuance of

26 certificates of occupancy by the local building officials tasked with enforcing the California Building

27 II

'The Legislature often uses 'certificate' to mean an official statement." Sonoma ACi Art. LLC v.

28 Departmcnl o(Pood and Agriculture, 125 Cal. Ap!). 4th 122. 126.22 Cal. Rptl'. 3d 468. 470 (Cal. Ct.

App.2004). "Issuing a certificate is generally discretionary." Id. at 128.

27

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Code indicates that such officials either determined that the stores in question complied with the

2 California Building Code or determined that some type of exemption walTanted some deviation from the 3 California Building Code. Brin?:le v. Board of'Supervisors, 54 Cal. 2d 86, 89 (1960) (noting

4 presumption that official duty was performed and that necessary facts were found to exist to grant

5 variance).

6

The analysis in Thompson v. Cit)! of'Lake Elsinore, 18 Cal. App. 4th 49 (Cal. Ct. App. 1993),

7 regarding the nature and scope of a certificate of occupancy and the process whereby it is issued, is

8 instructive. In Thompson, the plaintiff, the owner of a building that had been renovated, sued the City of 9 Lake Elsinore, California, the building department, and various city officials for damages resulting at 10 least in pati from the City's failure to issue a certificate of occupancy for the owner's renovated building
11 despite having received final approval of the renovation. lei. at 51-52. The plaintiff alleged that the

12 defendants refused to issue the certificate of occupancy in an attempt to cause the plaintiff to comply

13 with the defendants' demands concerning the plaintiff's other properties. Jd. at 53.

14

The defendants demurred based upon their statutory immunity for their decisions in issuing or

15 not issuing requested building permits, certificates of occupancy, or licenses pursuant to section 815.6 of

16 the California Government Code, which provides as follows:

17

"Where a public entity is under a mandatory duty imposed by an enactment that

is designed to protect against the risk of a particular kind of injury, the public entity is

18

liable for an injury of that kind proximately caused by its failure to discharge the duty

unless the public entity establishes that it exercised reasonable diligence to discharge the

19

duty."

20 (Cal. Gov'( Code § 815.6) (emphasis added). The trial cOUli sustained the defendants' demurrer (the

21 state law equivalent ofa Rule 12(b)(6) motion to dismiss for failure to state a claim). lei. at 52.

22

On appeal, the Court of Appeal reversed as to the failure to issue the certificate of occupancy.

23 As an initial matter, under California law, the COUli of Appeal noted that a public entity that is under a

24 mandatory duty designed to protect against the risk of a particular kind of injury is liable for an injury

25 proximately caused by the public entity's failure to discharge the duty unless the public entity 26 establishes that it exercised reasonable diligence to discharge the duty. (See Cal. Gov't Code § 815.6. 12)

27 12

According to the California Supreme Court, "As used in section 815.6, the term 'mandatory'

28 refers to an obligatory duty which a governmental entity is required to perform, as opposed to a

permissive power which a governmental entity may exercise or not as it chooses." Morris v. Count)! of'

28

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1 The Court of Appeal then analyzed whether or not the Uniform Building Code, as adopted by the City

2 ordinance, prescribed a mandatory duty to issue a building permit or a certificate of occupancy. 13 The

3 Court of Appeal agreed with the defendants' argument that the Uniform Building Code provisions did

4 not prescribe a mandatory duty to issue a bUilding permit and so such provisions were deemed to be a

5 discretionary decision covered by governmental immunity provisions. On the other hand, in response to

6 the defendants' argument that the Uniform Building Code did not prescribe a mandatory duty to issue a

7 certificate ofoccupancy, the Court of Appeal disagreed with the defendants' analysis. Significantly, the

8 Court of Appeal explored the process whereby a certificate of occupancy is issued. First, the Court of 9 Appeal noted that section 307 of the Uniform Building Code in effect during the relevant time frame I4 10 (i.e., the 1985 edition of the Uniform Building Code Is) provided as follows:

11

"(a) Use or Occupancy. No building or structure ... shall be used or occupied ...

until the building official has issued a Certificate of Occupancy therefor as provided

12

herein ....

13

(c) Certificate Issued. After the final inspection when it is found that the building

or structure complies with the provisions ofthis code and other laws which are enforced

14

by the code enforcement agency, the building official shall issue the Certificate of

Occupancy ...." 15

16

17 Marin. 18 Cal. 3d 901,908, 136 Cal. Rptr. 251 (Cal. 1977) (emphasis added), quoted in Fox v. County
18 o(Frcsno, 170 Cal. App. 3d 1238, 1242, 216 Cal. Rptr. 879 (Cal. Ct. App. 1985). "[Ajpp1ication of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or
19 permissive, in its directions to the public entity; it must require, rather than merely authorize or permit,
20 that a particular action be taken or not taken." Haggis v. City o(Los Angeles, 22 Cal. 4th 490, 498, 993 P.?d 983, 93 Cal. Rptr. 2d 327 (2000). "It is not enough, moreover, that the public entity or officer have
21 been under an obligation to perform a function if the function itself involves the exercise ofdiscretion." Jd. (emphasis added).
22 13 "Whether an enactment creates a mandatory duty is a question oflaw: 'Whether a pm1icular
statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary 23 function, is a question of statutory interpretation for the courts.''' Haggis v. City o(Los Angeles, 22 Cal. 24 4th 490, 499, 993 P.2d 983, 93 Cal. Rptr. 2d 327 (2000) (quoting Creason v. State Department o(Health
Servs" 18 Cal. 4th 623, 631, 957 P.2d 1323 (] 998) (emphasis added). 25 14 Plaintiff initially applied for a building permit in 1986 and such permit was issued in 1987 as
was a "Final Inspection Okay". Thompson, 18 Cal. App. 4th at 53. 26 15 To Taco Bell's knowledge, the two certificate of occupancy provisions cited in Thompson in the
27 1985 edition of the Uniform Building Code remained intact, as slightly modified, in subsequent editions in 1988, 1991, 1994, (Uniform Building Code § 307(a) & (c) (1988); Uniform Building Code § 308(a)
28 & (c) (1991); Uniform Building Code §§ 109.1, 109.3 (1994)), and presumably in the 1997 and 2000 editions as well. 29 Case No. 02-5849 MJJ ADR------DEF. TACO BELL CORP'S OPP'N TO MOT. PART. SUMM. J.
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Thompson, 18 Cal. App. 4th at 56 (quoting Uniform Building Code § 307(a) & (c) (1985)) (emphasis 2 added). Second, the Court of Appeal recognized that some discretion is, in fact, exercised by a building 3 official before a certificate of occupancy is issued (even if such discretion is not as broad the discretion

4 exercised to issue a building permit). The Court of Appeal addressed such discretion as follows:

5

"Section 307 of the Uniform Building Code, as adopted by City ordinance, is a

part of the same statutory scheme that covers issuance of building permits. When section

6

307 is considered in context, it is clear that the building official is 'authorized to

determine' (see Gov. Code, §§ 818.4, 821.2) whether or not a particular project satisfies

7

all the conditions of its building permit, as well as applicable code and other

requirements, before issuing the certificate of occupancy. Obviously, the building official

8

must be allowed great latitude (i.e., discretion) in making this determination. Generally

speaking, therefore, if the certificate of occupancy is not issued because the building

9

official has determined that the building or structure has not satisfied the applicable

requirements-even if the determination is negligent or elToneous-the building official and

10

the public entity are immune from tort liability, under Government Code sections 818.4

and 821.2, for the failure to do so, just as they are with respect to the decision to issue a

11

building permit in the first place."

12 Thompson, 18 Cal. App. 4th at 57 (emphasis added). The Court of Appeal proceeded to clarify that

13 while the discretion to issue a celiificate of occupancy was not as broad as the discretion to issue a

14 building permit, such circumstance did not automatically entitle the holder of a building permit to a

15 certificate of occupancy. That is, the building official did not have a mandatory duty to issue one.

16 Instead, the Court of Appeal explained:

17

"The building permit holder must first satisfy the building official, in the exercise of

official discretion, that the project meets the requirements contained in the applicable

18

statutes, codes, and regulations, and in the permit itself."

19 Thompson, 18 Cal. App. 4th at 58 (emphasis added). The Comi of Appeal then drew a distinction

20 between a scenario in which the building official makes a "discretionary act" 16 in determining whether

21 or not the certificate of occupancy should be issued (i.e., that the building complies with the relevant

22 requirements) and a scenario in which the building official had, in fact, already approved the owner's 23 building via a final inspection that found that the building complied with applicable requirements. In 24 the latter scenario, the Court of Appeal determined that "the building official retained no further

25

26 16 "Generally speaking, a discretionary act is one which requires the exercise of judgment or 27 choice. Discretion has also been defined as meaning equitable decision of what is just and proper under
the circumstances." Burgdmlv. Funder, 246 Cal. App. 2d 443, 449, 54 Cal. RptL 805 (Cal. Ct. App. 28 1966). cited in Creason v. State Department ofHealth Servs., 18 Cal. 4th 623, 633, 957 P.2d 1323 (Cal.
1998). 30
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1 discretion to withhold the certificate of occupancy." Id. at 58 (emphasis added). Based thereon, the

2 Court of Appeal held that the defendant building officials were not subject to governmental immunity

3 based upon the plaintiff's allegations and could be sued for not timely issuing a certificate of occupancy.

4

The Thompson decision is significant for several reasons. First, the Thompson decision goes to

5 great lengths to point out the discretion utilized by local building officials in determining whether a

6 building complies with the applicable building code requirements. Subsequent court decisions have

7 relied upon Thompson for this proposition. See, e.g., Haggis v. Cit)! o{Los Angeles, 22 Cal. 4th 490,

8 502.993 P.2d 983 (2000) (noting that the defendant city had discretion to determine whether a

9 completed project met building permit requirements in order to issue a certificate of occupancy); Inland

10 Fmpire Healrh Plan v. Superior Court. J 08 Cal. App. 4th 588. 594. 133 Cal. Rptr. 2d 735. 740 (Cal. Ct.

11 App. 2003) (holding that a building official called upon to determine whether a renovation project meets

12 the requirements of the local building code is making a discretionary decision). The Thompson decision

13 is also consistent with Fox v. County o{Fresno, 170 Cal. App. 3d 1238 (Cal. Cl. App. 1985), wherein 14 the California Court of Appeal construed section 17980 of the California Health and Safety Code 17, 15 applicable to housing, as providing the enforcement agency a choice or discretion to choose which

16 course of action would be appropriate when a violation of the building standards published by the State

17 Building Standards Code is found notwithstanding that such statute makes several references to the

18 seemingly obligatory term "shall". ld. at J 243-44. Thus, local building officials have discretion to

19 decide how the applicable building code should be applied. Cj Surherland v. City o{Fort Bragg, 86

20 Cal. App. 4th 13,24, J0) Cal. RotL 2d 736. 742-43 (Cal. Ct. App. 2000) (holding that the fire chief
21 "exercises considerable discretion in deciding how [the fire code1should be applied") (emphasis

22
17
23 part:

Section 17980, subdivision (a), of the California Health and Safety Code provides in relevant

24

"(a) If any building is constructed, altered, converted, or maintained in violation of any

provision of, or in violation of any order or notice that gives a reasonable time to correct that violation

25 issued by an enforcement agency pursuant to this part, the building standards in the California Building

Standards Code, or other rules and regulations adopted pursuant to this part, or if a nuisance exists in

26 any building or upon the lot on which it is situated, the enforcement agency shall, after 30 days' notice

27

to abate the nuisance or violation, or a notice to abate with a shorter period of time if deemed necessary by the enforcement agency to prevent or remedy an immediate threat to the health and safety of the

28 public or occupants of the structure, institute any appropriate action or proceeding to prevent, restrain,

correct, or abate the violation or nuisance." (Cal. Health & Safety Code § 17980) (emphasis added).) 31

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added); ("Aware of a violation of the [fire1code's exit provisions, the chief has an array of remedies at

2 his disposal under the code, all involving the exercise of official discretion. These enforcement

3 remedies include orders requiring an offending use to cease, declaring a building a public nuisance to be

4 abated or, in his discretion, declining any enforcement measures at all. ") (emphasis added). Indeed, if

5 local building officials lacked the discretion to apply the California Building Code, then the careful

6 distinction drawn in Thompson would be nullified and local building officials throughout the State of

7 California would be exposed to liability for failing to issue certificates of occupancy despite the

8 existence of building code violations. Similarly, the entire statutory scheme to ensure compliance with

9 the California Building Code would be subverted if local building officials had a mandatory duty to

10 automatically issue celtificates of occupancy. This was clearly not the California Legislature's intent in

11 drafting California's governmental immunity provisions.

12

In addition, the Thompson court's determination that local building officials have discretion to

13 determine how the applicable building code should be applied makes sense given the ever changing

14 information as to building code requirements. Indeed, California issues updated building code standards

15 every three years or on a triennial basis. Such "changing information" makes it likely that the

16 Legislature and local municipalities expected the local building officials to exercise discretion in
17 enforcing California Building Code standards. cy Creason v. Slale Der 'f ofHealth Servs., 18 Cal. 4th

18 623. 633, 957 P.2d 1323 (Cal. 1998) (holding that the Legislature intended that the Department of

19 Health Services would exercise discretion in selecting necessary and appropriate testing and reporting

20 standards after considering the ever-increasing and changing information concerning heritable and

21 congenital defects).

22

Second, the Thompson decision makes it clear that the issuance of a certificate of occupancy

23 should not occur unless and until the local building official has found the inspected building to be in

24 compliance. This, of course, includes the various hardship or equivalent facilitation exemptions

25 recognized by the California Building Code from the inception of Title 24 in 1982. Thus, the issuance

26 of certificates of occupancy for each of the stores at issue in the instant action is prima facie evidence

27 that the respective local building officials charged with enforcement of the California Building Code and

28 other requirements determined that such facilities complied with the provisions of the California

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Building Code and other applicable requirements at the time such certificates were issued or were

2 exempt based upon local conditions. Thus, plaintiffs have failed to demonstrate the absence of a

3 genuine issue of material fact. Celolex. 477 U.S. at 323.

4

(g) Plaintiffs Have Failed to Satisfy Their Prima Facie Burden of Demonstrating

5

that the Primary Entrance Was Not Accessible.

6

Plaintiffs assume that all of the store entrances were required to be made accessible at the 127

7 stores that allegedly have noncompliant door opening force at exterior doors. This assumption is

8 misleading.

9

Even assuming that Title 24 was applicable (which it is not), Title 24 provided at one time that

10 accessibility should be provided to the primary entrance (any entrance to a facility which has a

II substantial flow of pedestrian traffic to any specific major function of the facility). The original version

12 of Title 24 provided several exceptions to the general rule that "[a]ll primary entrances to buildings and

13 facilities shall be made accessible to the physically handicapped." (See, e.g., Cal. Code of Regs., Title

14 24, § 2-3301(m) (1982) (emphasis added).) "Access to these [dining] facilities shall be provided at

IS primary entrances." (Title 24, § 2-611 (c)(1) (1982) (emphasis added). Similarly, according to the 1989

16 California Building Code, access to a Group A occupancy (at least 50 occupants) "shall be provided at

17 primary entrances," which is, in turn, defined as "any entrance to a facility which has a substantial flow

18 of pedestrian traffic." (Title 24, §§ 417-418, 611 (d)(I) (1989». Elsewhere, the 1989 California

19 Building Code provides, "All primary entrances to buildings and facilities shall be made accessible to

20 the physically handicapped/people with physical disabilities." (Title 24, § 3301(f) (emphasis added).

21 Both sections are amendments to the Uniform Building Code and, therefore, were intentionally intended

22 to modify the Uniform Building Code.

23

In particular, one exception applies if there is at least one accessible entrance and another

24 exception applies if there are legal or physical constraints preventing compliance. "In existing buildings

25 where the enforcing agency determines that compliance with the building standards of this subsection

26 would create an unreasonable hardship, an exception shall be granted when equivalent facilitation is

27 provided. Equivalent facilitation would require at least one entrance to be accessible to and usable by

28 physically handicapped persons." (See, e.g., Cal. Code of Regs., Title 24, § 2-3301(m) (1982)

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(emphasis added).) Another exception provides, "These building standards shall not apply to existing

2 buildings when legal or physical constraints will not allow compliance with these building standards or

3 equivalent facilitation without creating an unreasonable hardship." Jd.

4

Thus, assuming that a particular entrance that is allegedly noncompliant at a two-entrance store

5 is no! a "primary" entrance, then such entrance need not be made accessible under Title 24. Given that

6 Title 24 did not eliminate the reference to "primary" entrance in section 3301 until April 1, 1994, the 7 accessibility of the "primary" entrance at Taco Bell's company-owned stores is a key issue at 65 of the 8 stores at issue18 Taco Bell submits that the primary entrance to company-owned facilities that were 9 constructed prior to April 1, 1994 were, in fact, accessible based upon the 9.5 pound tolerance standard

10 addressed in plaintiffs' Motion. As such, the door opening force at doors that were not required to be

11 accessible beeause they were not primary entrances is irrelevant. Of course, if the Court did not apply 12 Title 24 standards to the instant action, then the foregoing inquiry could be avoided by the Court.

13

Plaintiffs' Motion fails to conduct any type of analysis as to the primary entrance to any of the

14 stores at issue. The location of the primary entrance to a building and its accessibility are diseretionary 15 determinations that presumably the local building official made in the course of issuing a certificate of

16 occupancy to Taco Bell or its predecessor in interest to the premises at issue. Without such analysis, it 17 remains possible that plaintiffs are insisting upon injunctive relief as to a store entrance that is not 18 required under the applicable version of the California Building Code to be made accessible and usable

19 by persons with disabilities. Thus, plaintiffs have failed to demonstrate the absence of a genuine issue

20 of material fact. Ce/o/ex, 477 U.S. at 323.

21

6. The Door Opening Force Claims Are Moot.

22

A case is moot "when the issues presented are no longer 'live' or the parties lack a legally

23 cognizable interest in the outcome." Clark v. City o(Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001).

24 '''Past exposure to illegal conduct does not in itself show a present case or controversy ... if

25

26 18 The store numbers are 18,76,106,283,526,829,955,1827,2241,2423,2700, 2778, 2801,
27 2812,2915,2961,2968,2971,2984,3027,3046,3064,3078,3089,3160,3184,3209,3222,3241, 3390,3398,3420,3471,3473,3498,3555,3579,4027,4034,4054,4168,4192,4204,4211,4284,
28 4342,4343,4466,4510,4518,4558,4633,4799,4862,4951,5019,5259,5512,5513,9407,9414, 9417,9454,15379,15507. It is wOlih noting that store numbers 76,106,2812 are currently closed. 34 Case No. 02-5849 MJJ ADR------DEF. TACO BELL CORP'S OPP'N TO MOT. PART. SUMM. J.
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unaccompanied by any continuing, present adverse effects. ", Renne v. Gear}!. 501 U.S. 312. 320-21

2 (1991) (citation omitted). "This requisite ensures that the courts are able to grant effective relief, rather

3 than rendering advisory opinions." Medical Sociely orNel!' Jersey v. Herr. 191 F. Supp. 2d 574. 581

4 (D.N.J. Mar. 21. 2002). "The question is whether there can be any effective relief." !Yesl v. Secretary

5 oiDerl. o(Transr., 206 F.3d 920, 925 (9th Cir. 2000); Brothel' v. CPL ll1vt.l'.. ll1c., 317 F. SuPp. 2d

6 1358. 1372 (S.D. Fla. Mar. 22, 2004) (Martinez, 1.) ("An issue is moot when actions subsequent to the

7 commencement of a lawsuit create an environment in which the Court can no longer give meaningful

8 relief."). "[Plar! or all of a case may become moot if (1) 'subsequent events [have] made it absolutely

9 clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur,' and (2) 'interim

10 relief or events have completely and irrevocably eradicated the effects of the alleged violation. '" Grove

11 v. De La Cruz, 407 F. Supp. 2d 1126, 1130 (C.D. Cal. Oct. 31,2005) (Snyder, 1.) (citations omitted)

12 (emphasis added).

13

Mootness is a jurisdictional defect that can be raised at any time by the parties or the court sua

14 sponte. Barilla v. Ervin, 886 F.2d 1514, 1519 (9th Cir. 1989) ("this court cannot be divested of its

15 obligation to consider the issue of mootness on the grounds that the timing or manner in which a party

16 has raised the issue is somehow procedurally improper").

17

Generally, a defendant's remedial efforts will render a plaintiff's ADA claim for injunctive relief

18 moot. See, e.g., Troiano v. SupervisorojElec!ions in Palm Beach COllnly, 382 FJd 1276. 1286 (11th

19 Cir. 2004) (holding that a defendant County's subsequent voluntary installation of audio devices in all

20 voting precincts rendered the ADA class action by visually-impaired registered voters moot); Grove v.

21 De La Cruz, 407 F. SUP!). 7d 1126, 1131 (CD. Cal. Oct. 31.2005) (Snyder, 1.) (holding that the

22 plaintiff's ADA claim to install grab bars in the women's restroom was moot); Brother v. CPL [mls.,

23 [nc.. 317 F. SUP!). 2d 1358. 1372 (S.D. Fla. Mar. 22,7004) (Martinez, 1.) (holding that a hotel's

24 modifications made after it was notified of alleged barriers via the ADA lawsuit rendered the claims

25 moot); Pidern v. Best !Yeslem Timber Cove Lodge Marina Resort, 194 F. Supp. 2dl 128,1130 (E.D.

26 Cal. Apr. 1,2002) (Shubb, 1.) ("Plaintiff concedes, as she must, that defendants' latest remedial efforts

27 have rendered her ADA claim for injunctive reliefmoot."); Parr v. L & L Drive-Inn Rest., 96 F. SUpp.

28 2d 1065, 1087 (D. Haw. 7000) (dismissing plaintiff's ADA claims predicated on alleged violations that

35
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had been corrected as moot); Independent Living Resources v. Oregon Arena Corp., 982 F. SURP. 698.

2 771 (D. Or. 1997) ("If plaintiffs already have received everything to which they would be entitled, i.e.,

3 the challenged conditions have been remedied, then these pattieular claims are moot absent any basis for

4 concluding that these plaintiffs will again be subjected to the same alleged wrongful conduct by this 5 defendant. "). In Hickman v. State of'Missouri, 144 F.3d 1141 (8th Cir. 1998), the Eighth Circuit held 6 that an ADA action brought by state prison inmates against state and various governmental entities was 7 moot notwithstanding the voluntary cessation of illegal conduct doctrine. The Eighth Circuit noted that 8 the "defendants' compliance with the ADA, including structural changes such as installation of ramps, 9 pull and grab bars, and chair lifts, is/ar 'more than a mere voluntary cessation of'alleged illegal

10 conduct, where we would leave [t]he defendant[s] ... free to return to [their] old ways.'" Jd. at 1144 11 (emphasis added). The Eighth Circuit also held that in federal courts, there is no public interest 12 exception to mootness. Id. ('" [A]lthough state law may save [a] case from mootness based on public

13 interest, federal courts require litigants' rights be affected. "') (citation omitted).

14

"Monetary relief is not an option for private individuals under Title III of the ADA." Fischer v.

15 SJB-P.D Inc., 214 F.3d 1115,1120 (9th Cir. 2000). "As a result, a plaintiff who files an ADA claim

16 can at most hope to improve access through an injunction." Id.; 42 U.S.C. § 12188(a)(] ). In addition,

17 the prospect of attorneys fees does not affect whether the underlying claim is justiciable. Utah Animal

18 Righi.\' Coalition v. Salt Lake City Corp., 371 F.3d 1748, 1269 (10th Cir. 2004). As the Supreme Comt

19 has stated, the "interest in attorney's fees is, of course, insufficient to create an Article III case or 20 controversy where none exists on the merits of the underlying claim." Lewis \'. Continental Bank Corp.,

21 494 U.S. 472. 480 (1990).

22

'" A claim for equitable relief is moot 'absent a showing of irreparable injury, a requirement that

23 cannot be met where there is no showing of any real or immediate threat that the plaintiff will be

24 wronged again.'" Ostendorf'\'. Dall'son County Corrections Bd., No. 4:98CV3038, 2002 WL 31085085,

25 at *6 (D. Neb. Sept. 18,2002) (citation omitted).

26

Here, Taco Bell has taken significant steps to ensure that plaintiffs will not suffer any future

27 alleged disability discrimination relating to door opening force. Taco Bell has replaced door closers

28
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with compliant ADA door closers at 95 California company-owned stores. 19 (Ford Decl. ~~ 6-70; Kane 2 Decl. ~~ 6-39.) Taco Bell has expressed its intent via a sworn declaration to replace additional door 3 closers at additional remaining stores in the very near future. (De Bella Dec!. 'I~ 4-5.) Effective April 6, 4 2007, Taco Bell shall implement a policy to inspect on a quarterly basis door opening force for all

5 exterior and interior doors at all California company-owned stores and to maintain or adjust force if such 6 inspections reveal a noncompliant force. (I-Iarkins Dec!. ~~ 2-3 Exs. 1-2.) Unless plaintiffs can come

7 forward with admissible evidence creating a reasonable expectation that Taco Bell's expressed intent is

8 disingenuous and that its purported actions are always so short as to evade review,20 plaintiffs' ADA

9 claim regarding door opening force is moot. Brewer v. Wisconsin Bd. or Bar Examiners, 2007 WL 10 527484, at *4-* 5 (E.D. Wis. Feb. J4, 2007) ("It is no secret that defendants are interested in ending this 11 litigation, but neither the timing of defendants' offer nor the fact that it might work a benefit in their

12 favor (i.e., result in dismissal of this case) suggests the offer itself is disingenuous."). Simply put, the

13 Court can no longer give meaningful relief. Brother. 317 F. Supp. 2d at 1372. This is not the 14 exceptional case walTanting application of the "capable of repetition, yet evading review" exception to 15 the mootness doctrine. Medical Society, J9J F. Supp. 2d at 581 (holding that it was the plaintitTs

16 burden to demonstrate that the challenged action was in its duration too short to be fully litigated prior to

17 its cessation and that there is a reasonable likelihood that the same complaining party would be

18 subjected to the same action again). At minimum, Taco Bell has created a genuine issue of material fact

19

20 19

To date, door closers have been replaced at store numbers 99, 283, 757, 829, 955, 1934,2700,

21 2423,2915,2930,3053,3064,3071,3079,3112,3117,3145,3152,3579,4168,4325,4466,4510,

4558,4578,4661,4704,4862,4951,5019,5081,5223,5512,5513,5636,5641,9414,9427,9489,

22 15362,15455,15507,15508,15570,15573,15625, 15723, 16276, 16336, 16381, 16520, 16534, 16812,

23 16819,17243,17363,17435,17471,17473,17556,17572, 17751, 17984, 18003, 18112, 18315, 18577,

18687,18808,19289,19298,19344,19413,19591, 19744, 19950,20052,20175,20180,20190,20204,

24 20241,20353,20566,20578,20646,20676,20893,21000,21047,21220,21226,21261,21295,21453.

20

In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court held that the capable of repetition,

25 yet evading review exception to the mootness doctrine applies only in "exceptional situations" in which

the two circumstances are simultaneously present: (1) the challenged action is in its duration too short

26 to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the

27 same complaining party will be subject to the same action again. Id. at 17; County o(Los Angeles v.

Davis, 440 U.S. 6")5. 631 (1979) (holding that under the voluntary cessation doctrine, a case becomes

28 moot if (1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief

or events have completely and irrevocably eradicated the effects of the alleged violation).

37

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as to whether plaintiffs have a reasonable expectation that they will be subject to future alleged

2 disability discrimination.

3 B. Plaintiffs Have Failed to Satisfy Their Prima Facie Burden of Proof as to Queue Lines.

4

1. Taco Bell Has Provided Equivalent Facilitation in the Form of Customer Service as

5

to Its Queue Lines.

6

Even if Title 24 standards are deemed to be applicable. both the federal DO] Standards and Title

7 24 both allow for equivalent facilitation as the basis for departing from particular technical and scoping

8 requirements. The DO] Standards provide, "Departures from particular technical and scoping

9 requirements of this guideline by the use of other designs and technologies are permitted where the

10 alternative designs and technologies used will provide substantially equivalent or greater access to and

11 usability oflhe facility." (DOJ Standards, 2.2.)

12

Taco Bell has an effective customer assistance policy that provides mobility-impaired patrons

13 with the effective opportunity to order via the auxiliary access lane instead of via the queue line.

14 (Blackseth Dec!., 9; Harkins Dec!. '1'14-7.) They are, however, expected to wait and place their order

15 after the person ahead of them in the queue line has been served first, which allows them to avoid

16 resentment or hostility from able-bodied customers waiting in the queue line. This presents the least

17 risk of harm, injury, or other hazard to the disabled person. Contrary to plaintiffs' bald allegation, Taco

18 Bell's expert witness, Kim R. Blackseth, who is mobility-impaired and a former Commissioner of the

19 California Building Standards Commission, which is responsible for updating and approving Title 24,

20 the California Building Code, has averred that he has been the beneficiary of such policy and was not at

21 all offended by such policy. (Blackseth Dec!., 9.) Thus, at minimum, Taco Bell has created a genuine

22 issue of material fact as to each of the queue lines at issue in the instant Motion. Indeed, Taco Bell has a

23 general customer service policy designed for store employees to provide assistance to any Taco Bell

24 customer. (I-Iarkins Dec!. "4-5 Exs. 3-6.) In addition, Taco Bell intends to soon install indoor signage

25 communicating such policy expressly to all of its customers. Such signage is very similar to signage

26 that plaintiffs' counsel agreed to as part ofa recent ADA class action settlement with Kmart and

27 constitutes an alternative approach. (Harkins Dec!. , 7 Ex. 6; Hikida Dec!. , 3); Colorado Cross-

28 DisaiJi!il)! Coaliliol1 v. Too (Delaware), Inc" 344 F. Supp. 2d 707, 714 (D. Colo. 2004) (applying the

38
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1 customer service defense and noting that if the plaintiffs' access to merchandise was obstructed by

2 moveable display units, they could ask for help from salespeople).

3

Given that the measurements of the queue lines taken by the Special Master do not address

4 whether disabled patrons received substantially equivalent access to the stores with queue lines,

5 plaintiffs' Motion should be denied.

6

2. The Queue Line Claims Are Moot.

7

Taco Bell has removed queue lines at 46 stores and modified them at 10 additional California

8 company-owned stores. (Ford Dec!. ~~ 6-70; Kane Decl. 'I~ 6-39.) Taco Bell has expressed its intent

9 via a sworn declaration to remove additional queue lines at additional remaining stores. (De Bella Dec!.

I0 ~~ 6-7.) Unless plaintiffs can come forward with admissible evidence creating a reasonable expectation

II that Taco Bell's expressed intent is disingenuous and that its purported actions are always so short as to 12 evade review/ I plaintiffs' ADA claim regarding queue lines is moot.

13 C. Plaintiffs Have Failed to Satisfy Their Burden of Proof as to Accessible Indoor Seating.

14

1. The Indoor Accessible Seating Claims Are Moot.

15

Taco Bell has either added additional indoor accessible seating at 31 stores or modified the

16 existing accessible seating to ensure ADA compliance at 40 California company-owned stores 22 (Ford

17 Dec!. ~~ 6-70; Kane Dec!. ~~ 6-39.) Unless plaintiffs can come forward with admissible evidence

18 creating a reasonable expectation that Taeo Bell's expressed intent to serve all of its customers

19 regardless of physical disability, (Harkins Dec!. ~ 5), is disingenuous and that its purported actions are

20 always so short as to evade review,2) plaintiffs' ADA claim regarding indoor accessible seating is

21
21

In Spencer v. Kemna. 523 U.S. 1 (1998), the Supreme Court held that the capable of repetition,

22 yet evading review exception to the mootness doctrine applies only in "exceptional situations" in which

(he two circumstances are simultaneously present: (1) the challenged action is in its duration too short

23 (0 be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the

24 same complaining party will be subject to the same action again. ld at 17; County orLos Angeles v.

Davis. 440 U.S. 625. 631 (1979) (holding that under the voluntary cessation doctrine, a case becomes

25 moot if (1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief

or events have completely and irrevocably eradicated the effects of the alleged violation).

26 22

Plaintiffs do not request additional seating for store number 19950, but nevertheless make

reference to store number 19950 in Exhibit 6, pertaining to the number of accessible indoor seats.

27 23

In Spencer v. Kemna. 523 U.S. I (1998), the Supreme Court held that the capable of repetition,

28 yet evading review exception to the mootness doctrine applies only in "exceptional situations" in which

the two circumstances are simultaneously present: (1) the challenged action is in its duration too short

39

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2

2. There Is No Centerline Measurement for Accessible Seating.

3

Taco Bell's position is that there is no requirement that the table top at an indoor accessible

4 seating position needs to be measured from its centerline with respect to the 30" knee space width

5 requirement specified in the AOAAG. (OOJ Standards, 4.32.3.)

6

For stores in which the Special Master determined that there was noncompliant knee space, Taco

7 Bell seeks clarification from the Special Master as to whether the Special Master measured from the

8 centerline of table tops or from some other measurement location. For example, at store number 2910,

9 Taco Bell seeks clarification as to whether the Special Master measured from the centerline of the table

10 top depicted in photo #47. Taco Bell submits that there is nothing in the AOAAG that requires knee

II space to be centered on the table top or that the table top itself be at least 30" wide. Indeed, Taco Bell's 12 expert witness confirms that there is no centerline measurement required. (Blackseth Dec!. ~ 13.)

13 Without clarification from the Special Master as to whether he measured the length of the table top or

14 the knee space underneath it or whether he measured from its centerline, Taco Bell submits that it 15 cannot fully respond to the instant Motion regarding the width of knee space measurements taken by the

16 Special Master and requests a Rule 56(f) continuance based thereon so that the parties may receive

17 clarification from the Special Master.

18 19 DATED: March 23, 2007

GREENBERG TRAURIG, LLP

20

21

By /~SR~/ ic~h-ar-d~H~.H~l~·k~id'a-----------------------

22

Attorneys for TACO BELL CORP.

23

24 to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the
25 same complaining party will be subject to the same action again. Id at 17; County ofLos Angeles v. Davis. 440 U.S. 625. 631 (J 979) (holding that under the voluntary cessation doctrine, a case becomes
26 moot if (1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief 27 or events have completely and irrevocably eradicated the effects of the alleged violation).
24 For accessible indoor seating, it is worth noting that notwithstanding the demands made by 28 plaintiffs via their Meet and Confer Charts in April through June of 2006, plaintiffs request less
accessible seating following the January 2007 joint submission. 40
Case No. 02-5849 MJJ AOR------OEF. TACO BELL CORP'S OPP'N TO MOT. PART. SUMM. J.
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1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 RICHARD H. HIKIDA (SBN 196149) 650 Town Center Drive, Suite 1700
3 Costa Mesa, California 92626 Telephone: (714) 708-6500
4 Facsimile: (714) 708-6501 Email: hurleyg@gtlaw.com, hikidar@gtlaw.com
5 Attorneys for Defendant
6 TACO BELL CORP.
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 SAN FRANCISCO DIVISION
11

12 FRANCIE E. MOELLER, et al.,

13

Plaintiffs,

14 vs.

15 TACO BELL CORP.,

16

Defendant.

17

18

19

CASE NO. C 02-5849 MJJ ADR
NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF DEFENDANT TACO BELL CORP.’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT

DATE: TIME: CTRM: JUDGE:

May 17, 2007 9:30 a.m. 11 Hon. Martin J. Jenkins

20

21

22

23

24 25

26

27

28

Case No. 02-5849 MJJ ADR------DEF. TACO BELL CORP’S NOTICE OF SUPP. AUTH. IN
SUPPORT OF OPP’N TO MOT. PART. SUMM. J.
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1

Defendant Taco Bell Corp. (“Taco Bell”) respectfully submits that the following supplemental

2 authority, copies of which are attached, should be considered in connection with Taco Bell’s response in

3 opposition to plaintiffs’ motion for partial summary judgment.

4

1. Martinez v. Home Depot USA, Inc., No. Civ. S-04-2272 DFL DAD, 2007 WL 926808

5 (E.D. Cal. Mar. 27, 2007) (Levi, J.). In this published decision,1 which follows on the heels of another

6 recently published decision, Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL

7 512426, at *1 (E.D. Cal. Feb. 12, 2007) (Levi, J.), cited on page 21 of Taco Bell’s Memorandum in

8 opposition to the instant Motion, Chief Judge Levi once again held that the ADAAG provides the only

9 regulations that are relevant to an ADA claim: “[I]n determining whether [plaintiff] states a federal

10 claim, the court considers only the ADA and the ADAAG.” Martinez, 2007 WL 926808, at *3. In so

11 doing, Chief Judge Levi expressly relied upon one of the three 2006 published decisions issued by Judge

12 Karlton and cited on pages 20-21 of Taco Bell’s Memorandum in opposition that refused to apply non-

13 ADA standards to a federal ADA action. Chapman v. Pier 1 Imports, No. Civ. S-04-1339, 2006 WL

14 1686511, at *7 (E.D. Cal. June 19, 2006) (Karlton, J.). Chief Judge Levi also relied upon the published

15 decision in Sanford v. Del Taco, 2006 WL 2669351, at *2 (E.D. Cal. Sept. 18, 2006) (Burrell, J.), which

16 was cited on pages 21-22 of Taco Bell’s Memorandum. Based thereon, Chief Judge Levi refused to

17 consider other standards including the California Building Code. Martinez, 2007 WL 926808, at *3.

18

2. Cross v. Pacific Coast Plaza Invts., L.P., 2007 WL 951772 (S.D. Cal. Mar. 6, 2007)

19 (Miller, J.). In this action,2 Judge Miller declined to exercise supplemental jurisdiction over state law

20 claims including the Unruh Act and the California Disabled Persons Act because of the novelty and

21 complexity of state law in light of the teaching of the California Court of Appeal in Gunther v. Lin, 144

22 Cal. App. 4th 223 (2006) (holding that the Unruh Act required proof of intent to discriminate against

23 disabled persons), which stood in stark contrast to the Ninth Circuit’s decision in Lentini v. California

24 Center for the Arts, 370 F.3d 837 (9th Cir. 2004) (holding that a plaintiff may recover under a

25 supplemental Unruh Act claim without proof of intentional discrimination even though a successful

26 Unruh Act claim adjudicated separately would have required proof of intent). Judge Miller stated,

27

1
28 2

Taco Bell’s lead defense counsel was defense counsel in the Martinez action. Taco Bell’s lead defense counsel is defense counsel in the Cross action.

1

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1 “Essentially, the California state courts, through the Gunther case, which the California Supreme Court

2 has declined to hear, has told the federal courts, ‘you got it wrong,’ when Lentini was decided.” Cross,

3 2007 WL 951772, at *6. Noting the “irreconcilable tension between the ADA and the Unruh Act”,

4 Cross, 2007 WL 951772, at *5, Judge Miller, relying upon comity interests, found that “federal and

5 state interpretation of the Unruh Act have diverged to such a degree that declining supplemental

6 jurisdiction is appropriate in this case.” Id. at *5. Plaintiffs have addressed both Gunther v. Lin and

7 Lentini v. California Center for the Arts in their Memorandum. (Pls.’ Mem. of 2/23/07 at 8:9-17; 8-9

8 nn.8 & 9.) Thus, in fairness, the Cross decision bears relevance to the instant Motion.

9

3. Molski v. M.J. Cable, Inc., __ F.3d __, No. 05-55347, 2007 WL 865532 (9th Cir. Mar.

10 23, 2007) (Ferguson, J.). In this decision, the Ninth Circuit, while ordering a retrial on the question of

11 whether the requested barrier removal was “readily achievable” within the meaning of the ADA, which

12 the Ninth Circuit expressly refused to decide on appeal in the first instance, id. at *6 n.6, cited with

13 approval a specific portion of Appendix B to Part 36 of Title 28 of the Code of Federal Regulations for 14 the proposition that “[t]he Department of Justice has referred to these examples3 as ‘the types of modest

15 measures that may be taken to remove barriers and that are likely to be readily achievable.’” 2007 WL

16 865532, at *4 (emphasis added) (quoting Appendix B to Part 36--Preamble to Regulation on

17 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,

18 56 Fed. Reg. 35,546 (July 26, 1991) (attached)). Taco Bell expressly cited certain portions of Appendix

19 B on pages 14:24-15:2 of its Memorandum.

20 DATED: April 11, 2007

GREENBERG TRAURIG, LLP

21

22

By /S/

Richard H. Hikida

23

Attorneys for TACO BELL CORP.

24

25

26 3

The Ninth Circuit’s reference to “these examples” was a reference to examples in 28 C.F.R. §

27

36.304, which include “installing grab bars in toilet stalls, rearranging toilet partitions to increase maneuvering space, insulating lavatory pipes under sinks to prevent burns, installing raised toilet seats,

28 installing full-length bathroom mirrors, and repositioning paper towel dispensers, 28 C.F.R. § 36.304(b)(12)-(17).” Molski, 2007 WL 865532, at *4.

2

Case No. 02-5849 MJJ ADR------TACO BELL CORP’S NOTICE OF SUPP. AUTH.

OC286138057 009451.011500

 
 Case 3:02-cv-05849-MJJ Document 271-1 Filed 04/13/2007 Page 1 of 43

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
Ari Krichiver, Pro Hac Vice
3 910 - 16th Street, Suite 610
Denver, Colorado 80202
4 Tel: (303) 595-9700
Fax: (303) 595-9705
5 Email: tfox@foxrob.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net

6 LAWSON LAW OFFICES
Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd.
Oakland, CA 94610
8 Tel: (510) 419-0940
Fax: (501) 419-0948
9 Email: tony@lawsonlawoffices.com
10
Attorneys for Plaintiffs
11

THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

15

FRANCIE E. MOELLER et al,

16 Plaintiffs,

Case No. C 02 5849 MJJ ADR

17 v.
18

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT.

TACO BELL CORP.,

19 Defendant.

Hearing Date: May 17, 2007

Time:

9:30 a.m.

20

21

22

23

24

25

26

27

28
Case No. C 02 5849 MJJ ADR Plaintiffs’ Reply Brief in Support of their Motion for Partial Summary Judgment

Case 3:02-cv-05849-MJJ Document 271-1 Filed 04/13/2007 Page 2 of 43

1

TABLE OF CONTENTS

2 I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 II. The Relief Sought by Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 III. 5 6

Taco Bell Makes Several Irrelevant Arguments Concerning Plaintiffs’ ADA Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Plaintiffs Do Not Rely on the ADA’s Readily Achievable or Alterations Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7
8 IV.
9
10
11

B. Plaintiffs Do Not Base Any ADA Claim on Violations of Non-ADA Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
It Is Entirely Appropriate for this Court to Apply California Law . . . . . . . . . . . . . . . . 4
A. The ADA Explicitly Permits Enforcement of Stronger State Access Laws . . . 5
B. Enforcing State Laws Is Consistent with the Purpose of Supplemental Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12 V. 13 14

Taco Bell’s Argument That Summary Judgment Should Be Denied Based on Certificates of Occupancy Is Incorrect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Building Inspectors May Not Allow Variations from Title 24 Unless the Prerequisites of a Statutory or Regulatory Exception Are Met . . . . . . . . . . . . . 8

15

B. There Are Only Two Narrow Exceptions to the Requirement

That All Newly-Constructed Public Accommodations Comply

16

with Title 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

17
18 VI.
19 VII.
20

C. Taco Bell Has Not Met its Burden of Showing That the Unreasonable Hardship Exception Applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Plaintiffs Are Entitled to Summary Judgment with Respect to Queue Lines . . . . . . . 14
Plaintiffs Are Entitled to Summary Judgment for Doors in Violation of Door Force Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

21

A. Plaintiffs Are Entitled to Summary Judgment as to Liability by

Establishing That the Architectural Elements Violate Title 24

22

and/or the DOJ Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

23

1. Plaintiffs Need Not Show That Class Members Were

Denied “Effective” Access for Violations of Title 24 . . . . . . . . . . . . . 17

24

2. Plaintiffs Need Not Show That Class Members Were

25

Denied “Effective” Access for Violations of the New Construction

Requirements of the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

26

B. All Customer Entrances Are Primary Entrances . . . . . . . . . . . . . . . . . . . . . . . 22

27

28

Case No. C 02 5849 MJJ ADR

Plaintiffs’ Reply Brief in Support of their Motion for Partial Summary Judgment

-i-

Case 3:02-cv-05849-MJJ Document 271-1 Filed 04/13/2007 Page 3 of 43

1 VIII. Plaintiffs’ Are Entitled to Summary Judgment for Taco Bell’s Violations of the

Accessible Seating Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2

A. Knee Clearance under Tables Is Required to Be Centered . . . . . . . . . . . . . . . 24

3

B. Since Knee Clearance Is Required to Be Centered, Where the

4

Special Master Found less than the Required Knee Clearance, it

Is Irrelevant Whether He Measured it Centered or Not . . . . . . . . . . . . . . . . . . 25

5

IX. Plaintiffs’ ADA Claims Are Not Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

6

A. Factual Background Relevant to Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

7

B. Defendant Has Not Satisfied its Heavy Burden of Persuading

8

the Court That the Challenged Conduct Cannot Reasonably Be

Expected to Start up Again . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

9

1. Taco Bell’s Statements Concerning its Intent to Comply

10

in the Future Are Insufficient to Satisfy its Heavy Burden . . . . . . . . . 30

11

2. Taco Bell’s Physical Modification of its Restaurants Is

Insufficient to Satisfy its Heavy Burden . . . . . . . . . . . . . . . . . . . . . . . 32

12

3. Not Only Is Effective Injunctive Relief Possible, it Is

13

Essential to Ensure That Taco Bell Complies with the Law . . . . . . . . 33

14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR

Plaintiffs’ Reply Brief in Support of their Motion for Partial Summary Judgment

-ii-

Case 3:02-cv-05849-MJJ Document 271-1 Filed 04/13/2007 Page 4 of 43

1

TABLE OF AUTHORITIES

2

Cases

3 Ability Ctr. v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) . . . . . . . . . . . . . . . 20

4 Access Now, Inc. v. South Florida Stadium Corp.,161 F. Supp. 2d 1357

(S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5

Armster v. United States Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . 35

6

Ass’n for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d

7

1353 (S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal.1994) . . . . . . . . . . 7

9 Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

10 Basiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

11 Blue Ocean Pres. Soc’y v. Watkins, 767 F. Supp. 1518 (D. Haw. 1991) . . . . . . . . . . . . . . . . 34

12 Boemio v. Love’s Rest., 954 F. Supp. 204 (S.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . 17-18

13 Bringle v. Board of Supervisors, 54 Cal. 2d 86 (Cal. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

14 Broadway, Laguna, Vallejo Ass’n v. Bd. of Permit Appeals, 66 Cal. 2d 767 (Cal. 1967) 12-13

15 Brother v. CPL Inv., Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004) . . . . . . . . . . . . . . . 21, 22, 33

16 Buchanan v. Consol. Stores Corp., 217 F.R.D. 178 (D. Md. 2003) . . . . . . . . . . . . . . . . . . . . 31

17 Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 33

18 Chapman v. Pier 1 Imports, No. CIV. S-04-1339 LKK CMK, 2006 WL 1686511

(E.D. Cal. June 19, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 21

19

City & County of San Francisco v. Bd. of Permit Appeals, 207 Cal. App. 3d 1099

20

(Cal. Ct. App. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 12-13

21 City & County of San Francisco v. Padilla, 23 Cal. App. 3d 388 (Cal. Ct. App. 1972) . . . . . . 8

22 City of Walnut Creek v. Leadership Hous. Sys., Inc., 73 Cal. App. 3d 611

(Cal. Ct. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23

Clavo v. Zarrabian, No. SACV03864CJCRCX, 2004 WL 3709049

24

(C.D. Cal. May 17, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

25 Creason v. Dep’t of Health Servs., 18 Cal. 4th 623 (Cal. 1998) . . . . . . . . . . . . . . . . . . . . . . . 10

26 Cross v. Pacific Coast Plaza Inv., L.P., No. 06 CV 2543 J. MOONEY (RBB), 2007 WL 951772 (S.D. Cal. Mar. 6, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

27

Cupolo v. Bay Area Rapid Transit, 5 F. Supp.2d 1078 (N.D. Cal.1997) . . . . . . . . . . . . . . . . 31

28

Case No. C 02 5849 MJJ ADR

Plaintiffs’ Reply Brief in Support of their Motion for Partial Summary Judgment

-iii-

Case 3:02-cv-05849-MJJ Document 271-1 Filed 04/13/2007 Page 5 of 43

1 Dep’t of Parks & Recreation v. State Pers. Bd., 233 Cal. App. 3d 813, 824

(Cal. Ct. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2

Desert Outdoor Advertising v. City of Oakland, No. C 03-1078-MJJ, 2005 WL

3

147582 (N.D. Cal. Jan. 20, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

4 Donald v. Café Royale, Inc., 218 Cal. App. 3d 168 (Cal. Ct. App. 1990) . . . . . . . . . . . . . . . . 17

5 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004), aff’d

474 F.3d 1214 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

6

Eckert v. Donahue Schriber Co., No. Civ. S-02-1684WBSKJM,

7

2003 WL 24273566 (E.D. Cal. Oct. 14, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 Eiden v. Home Depot USA, Inc., No. CIVS04-977 LKK/CMK,

2006 WL 1490418 (E.D. Cal. May 26, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

9

Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 430 F. Supp. 2d 996 (N.D. Cal. 2006) . . . . . . 30, 34

10

Executive Software North America, Inc. v. United States Dist. Court,

11

24 F.3d 1545 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12 Fox v. County of Fresno, 170 Cal. App. 3d 1238 (Cal. Ct. App. 1985) . . . . . . . . . . . . . . . . . 10

13 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) . . . 30, 32

14 Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir. 2006) . . . . . . . . . . 21

15 Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 6-7

16 Haggis v. City of Los Angeles, 22 Cal. 4th 490 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

17 Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

18 Harris v. Costco Wholesale Corp., 389 F. Supp.2d 1244,\ (S.D. Cal. 2005) . . . . . . . . . . . . . . . 3

19 Hickman v. Missouri, 144 F.3d 1141 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

20 Hooper v. Calny Inc., No. CIV-S-03-0167 DFL/GGH, slip op. (E.D. Cal. Nov. 10, 2004) . . 21

21 Horwitz v. City of Los Angeles, 124 Cal. App. 4th 1344 (Cal. Ct. App. 2004) . . . . . . . . . . 8-9

22 Indep. Living Res. v. Oregon Arena Corp., 1 F. Supp. 2d 1124 (D. Or. 1998) . . . . . . . . . . . . 21

23 Inland Empire Health Plan v. Superior Court, 108 Cal. App. 4th 588 (Cal. Ct. App. 2003) . 10

24 Johanson v. Huizenga Holdings. Inc., 963 F. Supp. 1175 (S.D. Fla. 1997) . . . . . . . . . . . . . . 21

25 Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . 6-7

26 Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

27 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

28

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1 Mannick v. Kaiser Found. Health Plan, Inc., 2006 WL 1626909

(N.D. Cal. June 09, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21, 22

2

Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362 (N.D. Ga. 2002) . . . . . 32

3

Martinez v. Home Depot USA, Inc., No. Civ. S-04-2272 DFL DAD, 2007 WL 926808

4

(E.D. Cal. Mar. 27, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 7

6 Morris v. County of Marin, 18 Cal.3d 901 (Cal. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

7 Nat’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . 16, 18

8 N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12

9 Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065 (D. Haw. 2000) . . . . . . . . . . . . . . . . . . . . 33

10 Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999) . . . . . . . . . . . . . . . . . . 22

11 Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 493 (9th Cir. 2000) . . . . . . 5

12 Pavon v. Swift Transp. Co., 192 F.3d 902 (9th Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

13 People ex rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123 (Cal. Ct. App. 1983) . . . . . . 15

14 Pickern v. Best W. Timber Cover Lodge Marina Resort, 194 F. Supp. 2d 1128

(E.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

15

Rezai v. City of Tustin, 26 Cal. App. 4th 443 (Cal. Ct. App. 1994) . . . . . . . . . . . . . . . . . . . . 10

16

San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002) . . . . . . . . . . . 33

17

Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL

18

512426 (E.D. Cal. February 12, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

19 Sanford v. Del Taco, Inc., No. CIV-S-04-1337 DFL CMK, 2006 WL 1310318

(E.D. Cal. May 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

20

Sanford v. Del Taco, Inc., No. 2:04-cv-2154-GEB-EFB, 2006 WL 2669351

21

(E.D. Cal. Sept.18, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

22 Sutherland v. City of Fort Bragg, 86 Cal. App. 4th 13 (Cal. Ct. App. 2000) . . . . . . . . . . . . . 10

23 Thompson v. City of Lake Elsinore, 18 Cal. App. 4th 49 (Cal. Ct. App. 1993) . . . . . . . . . . . 10

24 Torres v. Rite Aid Corp., 412 F. Supp. 2d 1025 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . 20

25 Troiano v. Supervisor of Elections, 382 F.3d 1276 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . 33

26 United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199 (1968) . . . . . . . . . . . . . . 30

27 United States v. Generix Drug Corp., 460 U.S. 453 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

28

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1 United States v. Oregon State Med. Soc’y, 343 U.S. 326 (1952) . . . . . . . . . . . . . . . . . . . . . . 35

2 United States v. W.T. Grant, 345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3 Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

4 Watanabe v. Home Depot USA, Inc., No. CV025088RGKMCX, 2003 WL

24272650(C.D. Cal. July 14, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32

5

Wilson v. Haria and Gogri Corp., -- F. Supp.2d --, 2007 WL 851744

6

(E.D. Cal. Mar. 22, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

7 Wilson v. Norbreck LLC, No. Civ.S-04-690 DFL JFM. 2006 WL 2651139

(E.D. Cal. Sept. 15, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8

Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054 (E.D. Cal. 2006) . . . . . . . . . . . . 3, 4

9

Statutes

10

42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11

42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14, 19, 20-21

12

42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 20-21

13

42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20-21

14

42 U.S.C. § 12201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

15

42 U.S.C. § 2000e-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

16

Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 14, 26

17

Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 14, 26

18

Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

19

Cal. Civ. Code § 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

20

Cal. Govt. Code § 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

21

Cal. Gov’t Code § 4450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

22

Cal. Gov’t Code § 4451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

23

Cal. Govt. Code § 4452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17

24

Cal. Health & Safety Code § 19953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

25

Cal. Health & Safety Code § 19957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

26

Cal. Lab. Code § 3800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

27

Cal. Stats.1993, c. 1220 (A.B.1138), § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28

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1

Regulations and Other Authorities

2 13 Charles Alan Wright et al., Federal Practice and Procedure § 3523 (2d ed. 1986) . . . . . . . 6

3 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4 Standards for Accessible Design, 28 C.F.R. pt. 36, app. A . . . . . . . . . . . . . . . . . . . . . . . passim

5 “Preamble to Regulation on Nondiscrimination on the Basis of

Disability by Public Accommodations and in

6

Commercial Facilities,” 28 C.F.R. pt. 36, app. B (2005) . . . . . . . . . . . . . . . . . . . . . . . 19

7 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 20

8 28 C.F.R. § 36.501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

9 Office of the State Architect, California State Accessibility Standards Interpretive Manual (3d ed. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23
10 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1 I. INTRODUCTION.

2

The most crucial grounds for Plaintiffs’ Motion for Summary Judgment (“Opening

3 Brief” or “Opening Br.”) are undisputed, including:

4

•

The Special Master’s measurements of the architectural elements for which

Plaintiffs seek summary judgment (with the exception of the measurement of

5

the knee clearance at accessible seating positions, discussed below);

6

•

The construction tolerances applied by Plaintiffs; and

7

•

The construction dates of the restaurants at issue.

8

Much of Taco Bell’s Memorandum of Points and Authorities in Support of Response in

9 Opposition to Motion For Partial Summary Judgment (“Opposition Brief” or “Opp. Br.”)

10 addresses arguments that are irrelevant here. For instance, eleven pages of the Opposition

11 Brief are devoted to showing that Plaintiffs have not met their burden of establishing that Taco

12 Bell violated the alterations or readily achievable provisions of the ADA. (See Opp. Br. at 8-

13 19.) Plaintiffs, however, do not rely on either of these provisions in seeking summary

14 judgment.

15

As set forth below, Taco Bell’s remaining arguments are incorrect and Plaintiffs are

16 entitled to summary judgment.

17 II. THE RELIEF SOUGHT BY PLAINTIFFS.

18

Through their Motion, Plaintiffs seek an order finding that the elements at issue are in

19 violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the

20 California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the “CDPA”), and/or California’s

21 Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh”).

22

This holding would establish the liability predicate for injunctive and monetary relief,

23 although as discussed below, during Stage 2, proof that class members were denied equal

24 access may be necessary for monetary relief. (See infra at 16-18.) Should the Court grant the

25 present motion, Plaintiffs respectfully request that the Court instruct the parties to attempt to

26 agree on a proposed remedial order, and to submit their proposals to the Court. See Madrid v.

27
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1 Gomez, 889 F. Supp. 1146, 1283 (N.D. Cal. 1995) (ordering parties to submit proposed

2 remedial plan).

3 III. TACO BELL MAKES SEVERAL IRRELEVANT ARGUMENTS

CONCERNING PLAINTIFFS’ ADA CLAIMS.

4

Plaintiffs seek summary judgment under the ADA only on restaurants that were built

5 after January 26, 1993, and are thus subject to the ADA’s new construction standards.1

6

Plaintiffs base these claims on violations of the Department of Justice Standards for Accessible

7

Design (“DOJ Standards”). 28 C.F.R. pt. 36, app A. As a result, several of Taco Bell’s

8 arguments are irrelevant.2

9

A. Plaintiffs Do Not Rely On The ADA’s Readily Achievable or Alterations

10

Requirements.

11

Taco Bell devotes much of its brief to arguing that Plaintiffs have not established

12 violations of the ADA’s provisions governing alterations and readily achievable barrier

13 removal. (Opp. Br. at 8-19.) Those provisions, however, are irrelevant to Plaintiffs’ Motion.

14

The ADA has different requirements based on the date that a building was constructed.

15 In buildings constructed before January 26, 1993, architectural barriers must be removed where

16 it is readily achievable to do so. 42 U.S.C. § 12182(b)(2)(A)(iv). In addition, areas of

17 buildings (and, in some cases, the path of travel to those areas) that have undergone alterations

18 since January 26, 1992, must be accessible. Id. § 12183(a)(2).

19

Plaintiffs’ Motion does not rely on the ADA’s readily achievable or alterations

20 requirements. Rather, Plaintiffs rely on 42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 36.406(a),

21 which require that all buildings constructed after January 26, 1993, comply with the DOJ

22 Standards. Thus Plaintiffs seek summary judgment under the ADA only with respect to

23 restaurants that the parties have stipulated were built after January 26, 1993. (See Exs. 2, 3, 6

24

25

1

Opening Br. at 2. Although Plaintiffs move on a number of pre-1993

restaurants, that portion of their motion is based entirely on state law, not the ADA. Opening 26 Br. at 11-12, 21-23.

27

2

Because Plaintiffs’ arguments here do not track the order of the arguments in

Taco Bell’s Opposition Brief, Plaintiffs have prepared the table attached as Tab 10 to their 28 appendix showing where each of Taco Bell’s arguments is addressed herein.

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1 & 7 to the Declaration of Timothy P. Fox (“Fox Decl.”)3 (setting forth the stipulated

2 construction dates of the restaurants for which Plaintiffs seek summary judgment under the

3 ADA).) Taco Bell’s discussion of the ADA’s readily achievable and alterations requirements 4 is therefore irrelevant.4

5

B. Plaintiffs Do Not Base Any ADA Claim On Violations Of Non-ADA

Standards.

6

Defendant asserts that “there is no architectural barrier that violates the ADA that can

7

be premised upon a proffered non-ADA standard.” (Opp. Br. at 20.) Whether this is an

8

accurate statement of law is irrelevant here because Plaintiffs do not base any ADA claim on a

9

non-ADA standard.

10

In the cases cited by Taco Bell, the courts held that ADA claims must be based on

11

violations of the DOJ Standards, and rejected the plaintiffs’ attempts to base ADA claims on

12 violations of Title 24.5 Here, Plaintiffs’ ADA claims are based only on violations of the DOJ

13

Standards.

14

15

16

17

18

3

This declaration was filed on February 23, 2007, and is docket number 256.

19

4

Plaintiffs dispute much of Taco Bell’s analysis of the ADA’s readily achievable

and alterations requirements, but those disputes need not be resolved here. 20

5

See Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1066 (E.D. Cal.

21 2006) (Rejecting plaintiff’s reliance on violations of the California Building Code to establish

violations of the ADA.); Eiden v. Home Depot USA, Inc., No. CIVS04-977 LKK/CMK, 2006 22 WL 1490418, at *8 (E.D. Cal. May 26, 2006) (same); Chapman v. Pier 1 Imports, No. CIV. S-

04-1339 LKK CMK, 2006 WL 1686511, at *6-7 (E.D. Cal. June 19, 2006) (same); Sanford v. 23 Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL 512426, at *1 (E.D. Cal.

February 12, 2007) (same); Sanford v. Del Taco, Inc., No. 2:04-cv-2154-GEB-EFB, 2006 WL 24 2669351, at *2 (E.D. Cal. Sept.18, 2006) (Holding that the DOJ Standards provide the standard

for determining a violation of the ADA.); Sanford v. Del Taco, Inc., No. CIV-S-04-1337 DFL 25 CMK, 2006 WL 1310318, at *2 (E.D. Cal. May 12, 2006) (Holding that the fact that an

architectural element violates Title 24 may be “evidence of what constitutes a barrier to access” 26 under the ADA); Wilson v. Norbreck LLC, No. Civ.S-04-690 DFL JFM. 2006 WL 2651139, at

*4 (E.D. Cal. Sept. 15, 2006) (Not applying Title 24 to ADA claim.); Harris v. Costco 27 Wholesale Corp., 389 F. Supp.2d 1244, 1051 (S.D. Cal. 2005) (same); Martinez v. Home

Depot USA, Inc., No. Civ. S-04-2272 DFL DAD, 2007 WL 926808, at *3 (E.D. Cal. Mar. 27, 28 2007) (Holding that “violations of state law cannot create federal violations under the ADA.”).

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1

Taco Bell’s violations of the ADA are set forth in sections II.B, III.A and IV.A of

2 Plaintiffs’ Opening Brief, and Exhibits 2, 3, 6 and 7 to the Fox Declaration. In these sections, 3 Plaintiffs rely exclusively on the DOJ Standards to establish violations of the ADA.6

4

Taco Bell apparently misunderstands Plaintiffs’ argument and believes that Plaintiffs

5 are relying on Title 24 to establish ADA violations. This is not the case. Plaintiffs rely on

6 Title 24 only to establish violations of state law. As set forth on pages 6 and 7 of Plaintiffs’

7 Opening Brief, a plaintiff can base a state claim on a violation of Title 24, and Taco Bell does

8 not dispute this assertion. Indeed, several of the cases cited by Taco Bell make this point. See,

9 e.g., Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d at 1065 (Holding that “as a general

10 matter, a plaintiff may rely on both the [DOJ Standards] and [California Building Code] when

11 pursuing an Unruh claim . . .”); Chapman, 2006 WL 1686511 at *6 (same).

12 IV. IT IS ENTIRELY APPROPRIATE FOR THIS COURT TO APPLY CALIFORNIA LAW.
13 When Plaintiffs filed their complaint in this case over four years ago, they alleged that
14 the Court had supplemental jurisdiction over Plaintiffs’ state law claims. Taco Bell has never
15 by motion challenged the Court’s jurisdiction over these claims.
16 Taco Bell now asserts that “Plaintiffs seek to evade the limitations imposed by
17 Congress upon businesses to retrofit older facilities by relying upon [California state law] and,
18 at the same time, use the vehicle of federal subject matter jurisdiction to accomplish this.
19 Principles of fairness and equity dictate that the Court not permit Plaintiffs to achieve this
20 result . . .” (Opp. Br. at 3.) This argument rests on two incorrect premises: (1) that state laws
21 with stronger access laws than the ADA somehow are contrary to the spirit and purpose of the
22 ADA; and (2) that there is something improper about raising state claims in federal court.
23

24

25

26

6

Taco Bell’s only specific example of Plaintiffs’ alleged reliance on a non-ADA

standard to establish an ADA violation concerns the force necessary to open exterior doors. 27 (Opp. Br. at 20.) This is incorrect: Plaintiffs argue that Taco Bell’s exterior doors violate

California state law, not the ADA, and Plaintiffs rely only on Title 24 requirements for this 28 argument. (See Opening Br. at 21-22.)

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1

A. The ADA Explicitly Permits Enforcement of Stronger State Access Laws.

2

The ADA provides:

3

Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and

procedures of [the] law of any State or political subdivision of any State or jurisdiction

4

that provides greater or equal protection for the rights of individuals with disabilities

than are afforded by this chapter.

5

42 U.S.C. § 12201(b).

6

Thus Congress recognized and endorsed the effectiveness of state laws such as Title 24

7

that provide greater protection than the ADA, and explicitly provided that the ADA did not

8

foreclose reliance on such laws.

9

The Ninth Circuit addressed a virtually identical statutory provision in Passantino v.

10

Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000). In Passantino, the

11

plaintiff brought employment discrimination claims against her employer under Title VII and

12

Washington state law. Id. at 503. The jury awarded one million dollars in compensatory

13

damages (among other relief). On appeal, the defendant argued that the district court should

14

have allocated the compensatory damage award to the Title VII claim, thereby subjecting the

15

award to Title VII’s damages cap. Id. at 504, 509. The Ninth Circuit rejected this argument,

16

holding that the defendant’s allocation method “would drastically curtail the ability of states to

17

provide damage remedies greater than those authorized by Title VII. Such a rule would violate

18

Title VII’s explicit prohibition against limiting state remedies.” Id. at 510 (citing 42 U.S.C.

19

§ 2000e-7) (emphasis added); see also Pavon v. Swift Transp. Co., 192 F.3d 902, 910-11 (9th

20

Cir. 1999) (Refusing to apply the federal damages cap to state claims because “Congress knew

21

when it enacted the amendment that many state anti-discrimination statutes provided for

22

damages . . . and it designed its scheme to coexist with those.”).

23

Like Title VII, the ADA prohibits limitations on state law remedies. Thus contrary to

24

Taco Bell’s contention that enforcing California access laws somehow contravenes the spirit of

25 the ADA, enforcing these laws is entirely in keeping with its explicit language.7

26

27

7

Taco Bell places a good deal of reliance on the “balance” struck by Congress

28

(continued...)

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1

B. Enforcing State Laws is Consistent With the Purpose of Supplemental

Jurisdiction.

2

Taco Bell argues that federal courts addressing ADA claims should not enforce state

3

access statutes, which apparently would have to be heard in state court. This position would

4

result in significant inefficiencies that contradict the purposes of supplemental jurisdiction.

5

According to a leading treatise:

6

Ancillary jurisdiction exists because without it the federal court neither could dispose of

7

the principal case effectively nor do complete justice in the dispute that is before the

tribunal. Viewed from this perspective then, the concept is a commonsense solution to

8

the problems of piecemeal litigation that otherwise would arise by virtue of the limited

jurisdiction of the federal courts prescribed in Article III and the complexity of many

9

modern lawsuits.

10 13 Charles Alan Wright et al., Federal Practice and Procedure § 3523 (2d ed. 1986 with

11 updates through 2007). (“In 1990, Congress codified the long-standing judicial doctrines of

12 pendent and ancillary jurisdiction, giving them the collective name of ‘supplemental

13 jurisdiction.’” Id.)

14

Here, Plaintiffs’ state claims share many factual and legal issues with their ADA

15 claims. Indeed, a violation of the ADA constitutes a violation of both state claims. Cal. Civ.

16 Code §§ 51(f) & 54(c). Both the federal and state claims require factual investigation into the

17 construction and alteration dates of the restaurants, as well as the measurements of the

18 architectural elements at issue. Trying this case in one forum, as contrasted with the piecemeal 19 litigation proposed by Taco Bell, serves the purposes of supplemental jurisdiction.8

20

21

7(...continued)

requiring only new construction to be in full compliance with the DOJ Standards “because it

22 costs far less to incorporate accessible design into the planning and construction of new

buildings . . .” (Opp. Br. at 11.) Plaintiffs’ Motion is in complete harmony with this balance:

23 it demonstrates that the pre-1993 buildings on which Plaintiffs move were all out of

compliance with Title 24 regulations in effect at the time the building in question was built,

24 that is, when Taco Bell concedes it would have cost far less to comply.

25

8

In its April 11th “Notice of Supplemental Authority in Support of Defendant

Taco Bell Corp.’s Memorandum of Points and Authorities in Opposition to Motion for Partial

26 Summary Judgment,” Taco Bell cites Cross v. Pacific Coast Plaza Investments, L.P., No. 06-

cv-02543-JM-RBB, 2007 WL 951772 (S.D. Cal. Mar. 6, 2007), in which the court declined to

27 exercise supplemental jurisdiction based on the differences between Lentini v. California

Center for the Arts, 370 F.3d 837 (9th Cir. 2004) and Gunther v. Lin, 144 Cal. App. 4th 223

28

(continued...)

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1 V. TACO BELL’S ARGUMENT THAT SUMMARY JUDGMENT SHOULD BE

DENIED BASED ON CERTIFICATES OF OCCUPANCY IS INCORRECT.

2

Taco Bell does not dispute that the elements in Exhibits 1, 4, 5, and 8 are out of

3

compliance with Title 24. Violation of Title 24 constitutes violation of Unruh and CDPA.

4

Moeller v. Taco Bell Corp., 220 F.R.D. 604, 607 (N.D. Cal. 2004) (citing Arnold v. United

5

Artists Theatre Circuit, Inc., 866 F. Supp. 433, 439 (N.D. Cal.1994)). Defendant argues that

6

summary judgment should be denied simply because building inspectors issued certificates of

7

occupancy for the restaurants in question. This argument should be rejected because:

8

•

Building inspectors do not have unfettered discretion to bless noncompliant

9

facilities. Their discretion is bounded by the law and they may only permit

variations from Title 24 where a specific statutory or regulatory exception

10

applies.

11

•

There are only two exceptions to the standards set forth in Title 24. The one on

which Defendant relies -- “unreasonable hardship” -- is a stringent exception

12

(1) that rarely applies; (2) on which Defendant bears the burden of proof, and

(3) on which Defendant offers no proof.

13

•

Where, as here, written findings are required to invoke an exception, the Court

14

may not presume -- in the absence of such findings -- that the exception applies.

15

16

17

18

8(...continued)

(Cal. Ct. App. 2006). These cases differ on the question whether it is necessary to show intent 19 to proceed under Unruh. Cross is inapposite here for two reasons.

First, in Wilson v. Haria and Gogri Corp., -- F. Supp.2d --, 2007 WL 851744 (E.D. Cal. 20 Mar. 22, 2007), a case decided after Plaintiffs submitted their Opening Brief, Judge Karlton

exhaustively analyzed Lentini and Gunther. The court ultimately followed Lentini and held 21 that Unruh claims that are based on ADA violations do not require a showing of intent.

Wilson, 2007 WL 851744, at *11.

22

Second, whether supplemental jurisdiction “should be exercised in a given

circumstance depend[s] on the district court assessing whether doing so ‘would most sensibly 23 accommodate’ the values of ‘economy, convenience, fairness, and comity.’” Executive

Software North America, Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1554 (9th Cir. 1994). In 24 Cross, the motion to dismiss the state claims was filed approximately one month after the filing

of the plaintiff’s complaint, before any discovery or motions practice had occurred. (See Decl. 25 of Amy F. Robertson in Support of Pls.’ Reply Br. in Support of Pls.’ Mot. for Partial Summ.

J. (“Robertson Decl.”) Ex. 7.) By contrast, the present case has been actively litigated for over 26 four years, involving discovery of hundreds of thousands of pages of documents, surveys of

every restaurant at issue, multiple depositions, and extensive motions practice, including two 27 fully briefed and decided motions concerning class certification, and three summary judgment

motions. In these circumstances, the values of economy, convenience and fairness set forth in 28 Executive Software weigh heavily in favor of retaining supplemental jurisdiction.

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1

A. Building Inspectors May Not Allow Variations from Title 24 Unless The

Prerequisites of a Statutory or Regulatory Exception are Met.

2

Defendant suggests that building inspectors have the discretion to allow any deviation

3

from the requirements of Title 24, even deviations that do not meet the prerequisites for a

4

statutory or regulatory exception. (Opp. Br. at 27-28 (Asserting that a certificate of compliance

5

indicates that a building inspector “either determined that the stores in question complied with

6

the California Building Code or determined that some type of exemption warranted some

7

deviation from the California Building Code.” (Emphasis added.)) In this section, Plaintiffs

8

demonstrate that building officials do not have unfettered discretion to approve facilities that

9

violate Title 24 in the absence of an express exception. In section V(B) below, Plaintiffs

10

demonstrate that no exception applies; in section V(C), Plaintiffs demonstrate that the Court

11

may not presume that an exception applied.

12

The fact that building inspectors have the discretion to issue building and occupancy

13

permits does not allow them to issue permits for projects that violate statutory or regulatory

14

requirements. Building departments and other administrative agencies are “not . . . lawmaking

15

bod[ies] and ha[ve] no power to disregard or amend the ordinances which define [their]

16

authority.” City & County of San Francisco v. Bd. of Permit Appeals, 207 Cal. App. 3d 1099,

17

1109-10 (Cal. Ct. App. 1989). “‘An administrative agency, therefore, must act within the

18

powers conferred upon it by law and may not validly act in excess of such powers.’” City &

19

County of San Francisco v. Padilla, 23 Cal. App. 3d 388, 400 (Cal. Ct. App. 1972) (citations

20

omitted); see also Dep’t of Parks & Recreation v. State Pers. Bd., 233 Cal. App. 3d 813, 824

21

(Cal. Ct. App. 1991); Bd. of Permit Appeals, 207 Cal. App. 3d at 1105. “Accordingly, it is

22

well settled that ‘when an administrative agency acts in excess of, or in violation, of the powers

23

conferred upon it, its action thus taken is void.’” Padilla, 23 Cal. App. 3d at 400 (citations

24

omitted); Dep’t of Parks & Recreation, 233 Cal. App. 3d at 824; Bd. of Permit Appeals, 207

25

Cal. App. 3d at 1105.

26

Several courts have reversed building agency actions that exceeded their statutory

27

authority. For example, in Horwitz v. City of Los Angeles, 124 Cal. App. 4th 1344, 1347 (Cal.

28

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1 Ct. App. 2004), a homeowner was issued a building permit to construct an addition to his

2 house. A neighbor challenged the issuance of the permit, arguing that the permit was contrary

3 to the municipal code. Id. On appeal, the court found that the proposed addition would violate

4 the municipal code. The city argued that the court could not order it to revoke the permits

5 because that would be contrary to the “‘discretion legally vested’” in the city. Id. at 1355. The

6 court rejected this argument, holding that “the City has no discretion to issue a permit in the

7 absence of compliance [with the municipal code].” Id. at 1356.

8

Likewise, in Board of Permit Appeals, 207 Cal. App. 3d at 1104, a board of permit

9 appeals overruled a zoning administrator and granted a building permit that effectively

10 authorized maintenance of a third dwelling unit on property zoned for single-dwelling use. The

11 zoning administrator then sought judicial review. Id. The court recognized that generally, the

12 board of permit appeals enjoyed “broad discretion.” Id. That discretion, however, “must be

13 exercised within the bounds of all applicable city charter, ordinance and code sections . . .” Id.

14 at 1105. There were only three exceptions to the San Francisco City Planning Code that would

15 have allowed the zoning variance granted by the board. Id. at 1106. The court held that the

16 board did not have discretion to permit the zoning variance unless one of the exceptions

17 applied. Id. at 1110.

18

Finally, in Morris v. County of Marin, 18 Cal. 3d 901, 905 (Cal. 1977), an injured

19 construction worker sued a county for issuing a building permit to his employer without

20 requiring a certificate of workers’ compensation insurance. Labor Code section 3800 required

21 that counties “shall require that each applicant” for a building permit submit an insurance

22 certificate. Id. at 906. In light of this language, the Court held that the county was required to

23 obtain a certificate of insurance before issuing a building permit. Id.

24

These cases demonstrate that building inspectors do not have discretion to issue

25 building permits or certificates of occupancy for projects that do not comply with applicable

26 statutes. As set forth in the next section, California statutes permit deviations from the

27 accessibility requirements of Title 24 only if the prerequisites of one of two narrow exceptions

28

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1 are met. Building inspectors “have no power to disregard”9 these statutes, and thus to the

2 extent that a building inspector permitted a non-compliant architectural element which did not

3 fall within one of these two exceptions, that determination is void.

4

Defendant’s cases are not to the contrary. These cases all involve plaintiffs seeking

5 damages from building inspectors, and all address a very narrow issue: whether damages are

6 precluded by California’s Governmental Immunity Act (“CGIA”) because the decision to issue 7 a building permit, certificate of occupancy or other permit involves discretion.10 At most, these

8 decisions demonstrate that when a building inspector makes a decision that violates applicable

9 laws, he or she is not liable for damages as a result. These cases do not stand for the

10 proposition that a court cannot correct the erroneous decision. As set forth above, numerous

11 courts have done just that. See also Rezai v. City of Tustin, 26 Cal. App. 4th 443, 448 (Cal. Ct.

12 App. 1994) (Holding that a a building permit decision can be challenged through a mandamus

13 action); City of Walnut Creek v. Leadership Hous. Sys., Inc., 73 Cal. App. 3d 611, 621 (Cal.

14 Ct. App. 1977) (“A petition for a writ of mandate . . . is the appropriate remedy for abuse of

15 discretion in refusing a permit.”).

16

In sum, any discretion the building inspectors have in issuing permits is bounded by

17 California statutes and Title 24. To avoid summary judgment on the elements in Exhibits 1, 4,

18 5 and 8, Defendant must show either that the element in question complied with Title 24 --

19 something it does not attempt to do in its Opposition Brief -- or that the building inspector

20 applied a statutory or regulatory exception to the requirements of Title 24.

21

22

23

24

9

Bd. of Permit Appeals, 207 Cal. App. 3d at 1109.

25

10 See Thompson v. City of Lake Elsinore, 18 Cal. App. 4th 49, 53-54 (Cal. Ct. 26 App. 1993); Haggis v. City of Los Angeles, 22 Cal. 4th 490, 498-99 (Cal. 2000); Inland

Empire Health Plan v. Superior Court, 108 Cal. App. 4th 588, 592-93 (Cal. Ct. App. 2003); 27 Fox v. County of Fresno, 170 Cal. App. 3d 1238, 1241-42 (Cal. Ct. App. 1985); Sutherland v.

City of Fort Bragg, 86 Cal. App. 4th 13, 18-19 (Cal. Ct. App. 2000); Creason v. Dep’t of 28 Health Servs., 18 Cal. 4th 623, 629-30 (Cal. 1998).

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1

B. There Are Only Two Narrow Exceptions to the Requirement That All

Newly-Constructed Public Accommodations Comply with Title 24.

2

The California legislature recognized that the specifications in Title 24 are the

3

“minimum requirements to insure that buildings, structures and related facilities . . . are

4

accessible to” persons with disabilities. Cal. Govt. Code § 4452. As a result, California law

5

requires that public accommodations “shall conform” with the accessibility requirements of the

6

Title 24 in effect at the time of construction “[e]xcept as otherwise provided by law.” Cal.

7 Gov’t Code § 4451(c).11 Thus a public accommodation must comply with the architectural

8

specifications of Title 24 unless a regulatory or statutory exception applies.

9

California law provides only two such exceptions: (1) where a covered entity can show

10

that compliance with Title 24 would result in an unreasonable hardship, and (2) where the

11

entity has shown that its access design will provide equivalent facilitation for people with

12

disabilities. See Cal. Health & Safety Code § 19957; Cal. Gov’t Code § 4451(f).

13

C. Taco Bell Has Not Met Its Burden of Showing that The Unreasonable

14

Hardship Exception Applies.

15

In its brief, Taco Bell relies exclusively on the unreasonable hardship exception.12 This

16 exception is stringent -- it applies only where compliance with the building standard at the time

17 of construction would make a construction project “unfeasible” based on, among other factors, 18 the cost of providing access, and the cost of all construction contemplated.13 According to

19

20

21

22

11 In Morris, the court relied on the definition of “shall” in the Labor Code to find

that the statutory section at issue was mandatory. Morris, 18 Cal. 3d at 907. Likewise, the 23 Government Code contains an identical definition of “shall.” Cal. Gov’t Code § 14. Thus

under Cal. Gov’t Code § 4451(c), pursuant to which buildings “shall” conform with Title 24, 24 compliance with Title 24 is mandatory.

25

12 See Opp. Br. at 25-27. Although Taco Bell mentions the equivalent facilitation

exception, it does not appear to rely on it and, in any event, offers no evidence that it applies to 26 any of the elements at issue in Plaintiffs’ Motion.

27

13 See Title 24-1981 § 2-422(c); Title 24-1984 § 2-422(c); Title 24-1987 § 2-422

at 29; Title 24-1989 § 422(c); Title 24-1994 § 422(c); Title 24-1999 § 222-U at 28; Title 2428 2001 § 222-U at 22-23.

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1 California’s Office of the State Architect, which promulgated the Title 24 access regulations,14

2 the undue hardship exception applies only where compliance would be “difficult or impossible

3 because the cost of providing access is too high in relationship to the total cost of the job.”

4 Office of the State Architect, California State Accessibility Standards Interpretive Manual

5 § 110A(b)11A at 11 (3d ed. 1989) (“1989 Interpretive Manual”) (interpreting “unreasonable

6 hardship”).

7

Taco Bell -- which has the burden of proving that the unreasonable hardship exception

8 applies15 – has not submitted any evidence whatsoever either (1) that any of the occupancy

9 permits for any of the buildings at issue in Plaintiffs’ Motion were based on an unreasonable

10 hardship exception, or (2) that such an exception was in fact merited. It has not submitted any

11 written documentation by the building inspector beyond the occupancy permits, nor has it

12 submitted any evidence concerning the cost of constructing accessible elements, the overall

13 costs of constructing the restaurants, or that constructing these basic features in a manner

14 compliant with Title 24 would have made the construction of the restaurant unfeasible.

15

Instead of providing evidence, Taco Bell asks the Court simply to presume that building

16 inspectors made unreasonable hardship determinations, citing Bringle v. Board of Supervisors,

17 54 Cal. 2d 86, 89 (Cal. 1960), which held that “[w]here an authorized board grants a variance it

18 will be presumed that official duty was performed and that the existence of the necessary facts

19 was found . . .” The Bringle presumption is inapplicable here.

20

“The presumption that an agency’s rulings rest upon the necessary findings and that

21 such findings are supported by substantial evidence . . . does not apply to agencies which must

22 14 See Cal. Gov’t Code § 4450(b). The State Architect’s interpretation of its
23 regulations is “controlling” unless it is “‘plainly erroneous or inconsistent with the regulation,’” which is clearly not the case here. See Basiri v. Xerox Corp., 463 F.3d 927, 930
24 (9th Cir. 2006) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997))

25

15 The parties have stipulated that Taco Bell has the burden of proof of

establishing that the unreasonable hardship exception applies. Joint Status Conference 26 Statement ¶ 27 (Docket No. 157, filed Feb. 2, 2005). This is consistent with established rules

of statutory construction. See N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 27 (2001) (Discussing “‘the general rule of statutory construction that the burden of proving

justification or exemption under a special exception to the prohibitions of a statute generally 28 rests on one who claims its benefits.’” (Citation omitted.)).

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1 expressly state their findings and must set forth the relevant supportive facts.” Broadway,

2 Laguna, Vallejo Ass’n v. Bd.of Permit Appeals, 66 Cal. 2d 767, 773 (Cal. 1967); see also Bd.

3 of Permit Appeals, 207 Cal. App. 3d at 1107 (quoting Broadway).

4

Since their inception, the Title 24 access regulations have required that the “details of

5 any finding of unreasonable hardship shall be recorded and entered in the files of the enforcing 6 agency.”16 Since there is no evidence of written hardship findings or determinations for any of

7 the elements at issue here, no such determinations may be presumed.

8

Ultimately, there is a good reason why Taco Bell does not and cannot provide evidence

9 that any building inspector found that it would have posed an unreasonable hardship to

10 construct the architectural elements at issue here in compliance with Title 24: because such a

11 finding would be absurd on its face. Plaintiffs move only on new construction standards, that

12 is, the standards applicable when each door, queue, and seating area was being put in place as

13 part of the construction of an entire new Taco Bell restaurant. It is inconceivable that ensuring

14 that door closers are adjusted to require the proper force, that the rails of a queue line are

15 spaced far enough apart (or simply never put in place at all) or that a handful of tables have the

16 proper knee clearance would render the project -- the building of a Taco Bell restaurant -17 “unfeasible” in light of, among other things, “[t]he cost of all construction contemplated.”17

18

Without the presumption of unreasonable hardship, the only evidence before the Court

19 is that the elements at issue are substantially out of compliance with Title 24. Taco Bell has

20 not met its burden of establishing that an exception applies, and thus Plaintiffs are entitled to

21 summary judgment.

22

23 16 See Title 24-1981 § 2-422(c); Title 24-1984 § 2-422(c); Title 24-1987 § 2-422
24 at 29; Title 24-1989 § 422(c); Title 24-1994 § 422(c); Title 24-1999 § 222-U at 28; Title 242001 § 222-U at 22-23.
25 17 Taco Bell requests permission to seek a retroactive unreasonable hardship
26 determination. (Opp. Br. at 26.) In light of its utter failure to present any evidence that building the architectural elements at issue in compliance with Title 24 would have posed an
27 unreasonable hardship, that request should be denied. See Fed. R. Civ. P. 56(e) (Taco Bell cannot “rest upon the mere allegations or denials of [Plaintiffs’] pleading” but “must set forth
28 specific facts showing that there is a genuine issue for trial.”)

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1 VI. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT WITH RESPECT TO QUEUE LINES.
2 In their Opening Brief, Plaintiffs demonstrated that the Taco Bell queue lines in
3 Exhibits 1 and 2 violated Title 24 and the DOJ Standards, respectively, and that Taco Bell’s
4 auxiliary access for persons who use wheelchairs violated the ADA and state law because it
5 denies them the benefit of the queue lines and segregates them from nondisabled patrons.
6 (Opening Br. at 10-18.)
7 Taco Bell does not dispute the legal or factual assertions in Plaintiffs’ Opening Brief,
8 including the dimensions in Exhibits 1 and 2. Instead it agues that its queue lines do not
9 violate the ADA or state law because the auxiliary access provides persons who use
10 wheelchairs with equivalent facilitation. (Opp. Br. at 38-39.)
11 The purpose of both the ADA and California law is to provide persons with disabilities
12 with “full and equal” access to places of public accommodation. See 42 U.S.C. § 12182(a);
13 Cal. Civ. Code §§ 51(b) & 54.1(a)(1). While both the ADA and California law provide an
14 exception from the requirements of the DOJ Standards and Title 24 for alternative methods of
15 access, this exception applies only where the alternative method provides “equivalent
16 facilitation” to persons with disabilities. (See DOJ Stds. § 2.218 (Permitting alternative designs 17
only where they “provide substantially equivalent or greater access to and usability of the 18
facility.”); Cal. Gov’t Code § 4451(f) (Permitting other methods of access “only when it is 19 clearly evident that equivalent facilitation and protection are thereby secured.”).)19 20
Here, Taco Bell does not dispute that the DOJ Standards and Title 24 require that its 21
queue lines be wide enough to permit passage by persons who use wheelchairs, or that its 22
queue lines are a service for customers to provide a convenient and stress-free experience. 23

24 18 Most of the DOJ Standards and Title 24 provisions cited herein were included in
25 the Appendix to Plaintiffs’ Opening Brief. Any that were not so included are in the Appendix hereto.
26 19 This is the text of section 4451(f) prior to 1993. See Cal. Stats.1993, c. 1220
27 (A.B.1138), § 2. In 1993, the section was amended to provide that other methods of access are permitted only “when it is clearly evident that equivalent facilitation and protection that meets
28 or exceeds the requirements under federal law are thereby secured.”

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1 Thus Taco Bell’s auxiliary access constitutes “equivalent facilitation” only if it provides access

2 and service that are equivalent to that provided by accessible queue lines. The auxiliary access

3 does not come close to meeting this standard.

4

First, the auxiliary access is segregated. Integration of persons with disabilities is a

5 primary purpose of both the ADA and California law. (See Opening Br. at 17-18.) The CDPA

6 “is intended to promote accommodation of the physically handicapped by insuring them access

7 to public restaurants without facing the unnecessary, adverse psychological impact of being

8 separated from regular customer traffic and shunted through secondary entrances.” People ex

9 rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123, 136 (Cal. Ct. App. 1983). Likewise,

10 according to the Department of Justice, “[i]f the concept of ‘equivalent facilitation’ allowed

11 businesses such as Taco Bell to provide segregated customer service queues where it would

12 have been easy to construct fully accessible integrated service lines, one of the main purposes

13 of the ADA would be significantly undermined . . .” (Ex. 14 to Fox Decl., at 20.)

14

Further, the auxiliary access is not equivalent because it denies persons who use

15 wheelchairs the benefits of the queue lines. The purpose of queue lines is to permit customers

16 not to have to worry about where they are in line so they can concentrate on what they want to

17 order. (Opening Br. at 15.) The auxiliary access denies this benefit to persons who use

18 wheelchairs. Taco Bell admits that persons using the auxiliary access must keep track of where

19 they would have been in the queue line because they are “expected to wait and place their order

20 after the person ahead of them in the queue line has been served first . . .” (Opp. Br. at 38.)

21 This is not full and equal access to Taco Bell’s facilities and services.

22

Because Taco Bell’s auxiliary access is segregated and denies persons who use

23 wheelchairs the benefits of the queue lines, it does not provide equivalent facilitation and thus

24 Plaintiffs are entitled to summary judgment as to queue lines.

25

26

27

28

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1 VII. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT FOR DOORS IN VIOLATION OF DOOR FORCE REQUIREMENTS.

2 In their Opening Brief, Plaintiffs demonstrated that 171 restaurants have exterior and/or

3 interior doors that are in violation of the door force requirements under the DOJ Standards

4 and/or Title 24. (See Opening Br. at 19-22, Exs. 3-5 to Fox Decl.)

5 Again, Defendant does not challenge the accuracy of the measurements in Exhibit 3, 4

6 and 5 or the legal standards relied on by Plaintiffs to demonstrate that those doors are out of

7 compliance. Defendant argues that summary judgment should be denied because: (1) To

8 prevail on their ADA claims, Plaintiffs must show that the door force violations “deprive[d]

9 each of the class members of effective access;”20 and (2) To prevail on their Title 24 claims for

10 restaurants built prior to April 1, 1994, Plaintiffs must establish that the doors in violation were

11 “primary entrances.”21 Defendant is incorrect.

12 A. Plaintiffs Are Entitled to Summary Judgment as to Liability by

13

Establishing that the Architectural Elements Violate Title 24 and/or the

DOJ Standards.

14 Class liability will be premised on Taco Bell’s violations of the ADA and/or state law.

15 Once this is shown, the class will be entitled to injunctive relief, and class-wide liability for

16 monetary relief will be established, although additional proceedings may be required to

17 determine individual class member entitlement to monetary relief. Cf. Nat’l Bhd. of Teamsters

18 v. United States, 431 U.S. 324, 361 (1977); Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137,

19 174 (N.D. Cal. 2004) (citing Teamsters), aff’d 474 F.3d 1214 (9th Cir. 2007).

20 Defendant argues that Plaintiffs must show that the challenged interior and exterior

21 doors “deprive each of the class members of effective access.” (Opp. Br. at 7.) Defendant is

22 wrong. Under both California law and the ADA’s new construction provisions, Plaintiffs are

23 entitled to injunctive relief by showing that the architectural elements were built in violation of

24

25

26

20

Opp. Br. at 7.

27

21 Id. at 33-34. Defendant also contends that the door force claims are moot, and 28 Plaintiffs address this contention below.

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1 Title 24 or the DOJ Standards respectively. Even to obtain damages, under state law, class

2 members must only demonstrate a denial of “equal access,” not “effective access.”

3

1. Plaintiffs Need Not Show That Class Members Were Denied

“Effective” Access for Violations of Title 24.

4 Taco Bell’s “effective access” argument addresses only the ADA, and does not cite any

5 cases involving California statutes or Title 24. (See Opp. Br. at 7-8.) Nevertheless Plaintiffs

6 demonstrate here that to obtain injunctive relief, they need only show a violation of Title 24

7 and that, even to recover damages, each class member will only have to show he or she was

8 denied equal access.

9 The California legislature recognized that the specifications in Title 24 are the

10 “minimum requirements to insure that buildings, structures and related facilities . . . are

11 accessible to” persons with disabilities. Cal. Govt. Code § 4452. The legislature provided a

12 private right of action to enforce these minimum standards. (See Cal. Civ. Code § 55; Cal.

13 Health & Safety Code § 19953.)

14 The leading case on this issue is Donald v. Café Royale, Inc., 218 Cal. App. 3d 168

15 (Cal. Ct. App. 1990). In Donald, the court distinguished between what a plaintiff must show to

16 obtain injunctive versus monetary relief:

17 Sections 19955 et seq., 4450 et seq. and 54 et seq., taken together, provide for a

18

two-fold procedure. A designated public agency or an individual may initiate an action

to enforce compliance with the handicapped access standards provided for by section

19

19955 et seq. and section 4450 et seq. On the other hand, to maintain an action for

damages pursuant to section 54 et seq. an individual must take the additional step of

20

establishing that he or she was denied equal access on a particular occasion. Thus,

Donald was entitled to an award of damages in the instant case on his second cause of

21

action but not based on the first cause of action. For example, let us take a restaurant

that is required to have 100 percent of its dining area accessible to the handicapped, but

22

in fact only 90 percent of the dining area meets this standard. If a handicapped

individual is readily seated and served in the 90 percent primary dining area which

23

meets all handicap access requirements, then he or she would not have a cause of action

for damages for denial or interference with admittance pursuant to Civil Code section

24

54.3, but an individual or a designated public agency could pursue an action under one

of the enforcement provisions to bring about full compliance by the restaurant.

25 Id. at 183 (emphasis added); see also Boemio v. Love’s Rest., 954 F. Supp. 204, 207 (S.D. Cal.

26 1997) (“The standard cannot be ‘is access achievable in some manner’. We must focus on the

27

28

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1 equality of access. If a finding that ultimate access could have been achieved provided a

2 defense, the spirit of the law would be defeated.”)

3

In this case, Plaintiffs have established that the doors in Exhibits 4 and 5 violate Title

4 24, and thus they are entitled to a holding of liability and injunctive relief. In order to recover

5 monetary relief, there will only need to be a showing that the noncompliant doors denied class

6 members equal access.

7

2. Plaintiffs Need Not Show That Class Members Were Denied

“Effective” Access for Violations of the New Construction

8

Requirements of the ADA.

9

Plaintiffs have established that the restroom doors in Exhibit 3 are in material violation

10 of the DOJ Standards. Defendant contends that this is not sufficient, and that for Plaintiffs to

11 obtain injunctive relief, they must also show that each member of the class was denied

12 “effective access.” (Opp. Br. at 7.) Defendant is incorrect. Plaintiffs’ Motion relies on the

13 ADA’s new construction provisions while the cases cited by Taco Bell construe the ADA’s 14 readily achievable provisions.22 This is crucial because while in a readily achievable case, a

15 plaintiff seeking an injunction must demonstrate that an architectural element actually poses a 16 barrier,23 a plaintiff in a new construction case is entitled to an injunction simply by showing

17 that the architectural element violates the DOJ Standards.

18

“In enacting the ADA, Congress adopted two systems for regulating building

19 accessibility - one to apply to facilities designed and constructed for occupancy before January

20 26, 1993, and one to apply to newly constructed or altered facilities.” Mannick v. Kaiser

21 Found. Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *5 (N.D. Cal. June 09,

22 2006). The ADA has different requirements for new construction versus buildings constructed

23 before January 26, 1993.

24

25

22

See infra n.25.

26

23 In a class action, a plaintiff that establishes that a defendant has engaged in a 27 pattern or practice of violating the ADA’s readily achievable requirements would be entitled to

injunctive relief without any further evidence. See Teamsters, 431 U.S. at 361. 28

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1

The ADA provides that buildings constructed after January 26, 1993, must be “readily

2 accessible to and usable by individuals with disabilities . . . in accordance with standards set

3 forth or incorporated by reference in regulations issued under this subchapter.” 42 U.S.C.

4 § 12183(a)(1) (emphasis added). The Department of Justice implemented the standards

5 referenced in section 12183(a)(1) in the form of the DOJ Standards. Thus a failure to comply

6 with the DOJ Standards in buildings constructed after January 26, 1993, is, by definition, a 7 violation of the ADA. 28 C.F.R. § 36.406(a).24 Further, when a defendant violates the new

8 construction requirements, an injunction “shall include an order to alter facilities to make such

9 facilities readily accessible to and usable by individuals with disabilities to the extent required

10 by this subchapter.” 42 U.S.C. § 12188(a)(2) (emphasis added); see also 28 C.F.R.

11 § 36.501(b) (same). According to the Department of Justice, “‘an order to make a facility

12 readily accessible to and usable by individuals with disabilities is mandatory’ . . .” Preamble to

13 Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in

14 Commercial Facilities, (“Preamble”) 28 C.F.R. pt. 36, app. B at 715-16 (2002) (citation

15 omitted).

16

The ADA’s readily achievable requirements -- not at issue here -- are applicable to

17 buildings constructed before January 26, 1993 and work differently. Unlike the new

18 construction provisions – which require all architectural elements to comply with the DOJ

19 Standards – the readily achievable provisions only require removal of “architectural barriers.”

20 42 U.S.C. § 12182(b)(2)(A)(iv).

21

The difference in the ADA’s new construction and readily achievable provisions results

22 in differences in the type of proof that a plaintiff must present in order to establish a statutory

23 violation. In cases such as this one involving buildings constructed after January 26, 1993,

24 because the ADA requires such buildings to comply with the DOJ Standards, a plaintiff simply

25 must show that the buildings do not comply with the DOJ Standards.

26

27

24

See infra at 20.

28

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1

By contrast, because the readily achievable requirement applies only to “architectural

2 barriers,” an individual plaintiff in a readily achievable case must demonstrate that a particular

3 architectural element constitutes a barrier or, in a class case, that there is a pattern and practice

4 of barriers.

5

Courts have recognized this distinction. Several courts have held that in new

6 construction cases, a defendant’s violation of the DOJ Standards entitles a plaintiff to

7 injunctive relief – a plaintiff is not required to make an additional showing that the element

8 denied the plaintiff “effective” access. See, e.g., Long v. Coast Resorts, Inc., 267 F.3d 918, 9 923 (9th Cir. 2001) (Holding that the only defense to the ADA’s new construction requirements

10 is structural impracticability and the lower court had committed reversible error by refusing to

11 award injunctive relief because of “‘the near absence of hardship and . . . minimal

12 inconvenience to wheelchair users.’”); Ability Ctr. v. City of Sandusky, 133 F. Supp. 2d 589,

13 592 (N.D. Ohio 2001) (Holding that “[t]here are no exceptions allowed to [the] requirements”

14 of the DOJ Standards and that a one and one-half inch lip on a Curb ramp - flared sides - not

15 required so need not comply. cut made it noncompliant despite the defendant’s assertion that it

16 caused “slight inconvenience to the user.”).

17

This precise issue was addressed in Torres v. Rite Aid Corp., 412 F. Supp. 2d 1025

18 (N.D. Cal. 2006), involving the alterations provisions of the ADA, which, like the new

19 construction provisions, require compliance with the DOJ Standards. See 28 C.F.R.

20 § 36.406(a). The plaintiff argued that the defendant’s store violated section 4.4.1 of the DOJ

21 Standards, and the defendant moved for summary judgment on the ground that the plaintiff was

22 not denied access. The court rejected this argument:

23

Defendant misses the point here. Plaintiff does not seek to prove ultimately that he was

denied access. To prevail, he must instead demonstrate that Rite Aid discriminated

24

against him. See 42 U.S.C. 12182(a). Discrimination in the provision of public

accommodations, such as the Rite Aid store, is defined as failing to alter a facility “in

25

such a manner that, to the maximum extent feasible, the altered portions of the facility

are readily accessible to and usable by individuals with disabilities....” 42 U.S.C.

26

12183(a)(2). The Attorney General, in turn, has implemented that statute by adopting

Section 4.4.1 and other standards. Thus, whether or not plaintiff was able to get to all

27

the merchandise and parts of the store is not dispositive. In fact, he did not need to

enter the store at all to make out a case. See 42 U.S.C. 12188(a)(1) (“Nothing in this

28
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1

section shall require a person with a disability to engage in a futile gesture if such

person has actual notice [of a violation].”). Plaintiff may make out a valid claim of

2

discrimination based solely on Rite Aid’s purported failure to conform the store’s

alterations to Section 4.4.1. For this reason, defendant's argument for summary

3

judgment on grounds that plaintiff was not denied access is rejected.

4 Id. at 1034-35 (emphasis added); see also Johanson v. Huizenga Holdings, Inc., 963 F. Supp.

5 1175, 1176-77 (S.D. Fla. 1997) (holding that plaintiffs had standing to sue challenging

6 noncompliance with the DOJ Standards in a stadium that had not yet been built).

7

With one exception, all of the passages from the cases cited by Taco Bell involved the

8 readily achievable provisions of the ADA.25 Because these provisions apply only to

9 architectural “barriers,” it is not surprising that several of these cases -- in determining whether

10 the architectural elements at issue were barriers -- discussed whether the elements actually

11 denied the plaintiff equal access.

12

Nevertheless, several of these cases distinguished the barrier analysis applicable to the

13 readily achievable provisions from the analysis appropriate to the new construction provisions.

14 For example, the passage in Access Now, Inc. v. South Florida Stadium Corp. cited by Taco

15 Bell is in the section entitled “readily achievable.” 161 F. Supp. 2d 1357, 1369 (S.D. Fla.

16 2001), cited in Opp. Br. at 13. In contrast, earlier in the opinion, the court states that “[f]ailure

17 to abide by the Guidelines in new construction evidences intentional discrimination against

18

19

25 See Mannick, 2006 WL 1626909, at *1, *7 (Addressing facility built in 1956

and 1970 and applying readily achievable standard); Gathright-Dietrich v. Atlanta Landmarks, 20 Inc., 452 F.3d 1269, 1273-74 (11th Cir. 2006); Chapman, 2006 WL 1686511 at *7 (discussing

requirements for claim that “removal of the barrier is readily achievable”); Eckert v. Donahue 21 Schriber Co., No. Civ. S-02-1684WBSKJM, 2003 WL 24273566 at *2 (E.D. Cal. Oct. 14,

2003); Access Now, 161 F. Supp. 2d at 1362-63; Brother v. CPL Invs., Inc., 317 F. Supp. 2d 22 1358, 1370 (S.D. Fla. 2004); Ass’n for Disabled Americans, Inc. v. Concorde Gaming Corp.,

158 F. Supp. 2d 1353, 1361 n.4 (S.D. Fla. 2001).

23

In Hooper v. Calny Inc., No. CIV-S-03-0167 DFL/GGH, slip op. at 14 (E.D. Cal. Nov.

10, 2004) (Tab 9 in the Appendix), the court addressed the issue of what a plaintiff must show 24 to obtain monetary, not injunctive, relief.

Finally, although the court in Independent Living Resources v. Oregon Arena Corp., 25 1 F. Supp. 2d 1124, 1153 (D. Or. 1998) did not order the defendant to remedy certain

violations because they were “de minimis and do not materially impair usage of the parking 26 spaces,” it do so before the Ninth Circuit’s decision in Long. In Long, the Ninth Circuit

reversed the lower court, which, like the court in Independent Living Resources, had refused to 27 enter injunctive relief for violations that it considered “technical” violations that constituted “a

minimal inconvenience to wheelchair users.” 267 F.3d at 923. 28

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1 disabled persons.” Id. at 1362. In Mannick, another case relied on by Taco Bell, the court

2 held:

3

In enacting the ADA, Congress adopted two systems for regulating building

accessibility-one to apply to facilities designed and constructed for occupancy before

4

January 26, 1993, and one to apply to newly constructed or altered facilities. . . Only

newly-constructed or altered facilities must comply with the [DOJ Standards] . . .

5

Although existing facilities are not required to comply with the [DOJ Standards] (unless

they have been altered), the [DOJ Standards] nevertheless provide[] guidance for

6

determining whether an existing facility contains architectural barriers. However,

deviations from the [DOJ Standards] are not necessarily determinative in establishing

7

barriers to access.

8 2006 WL 1626909, at *5-6 (emphasis added & citations omitted).

9

Similarly, in Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 226 (S.D.N.Y. 1999),

10 the Court held that while “new construction . . . must comply with the Standards,” architectural

11 elements subject to the readily-achievable standard must be removed only if they pose “barriers

12 to access.” See also Brother, 317 F. Supp. 2d at 1370 (Holding that while new construction

13 must comply with the Standards, a plaintiff must show that a barrier exists under readily

14 achievable standard).

15

Plaintiffs’ Motion relies only on the ADA’s new construction provisions. Plaintiffs

16 have demonstrated that the doors in Exhibit 326 are in material violation of the DOJ Standards

17 -- a proposition Defendant does not contest -- and thus Plaintiffs are entitled to summary

18 judgment.

19

B. All Customer Entrances Are Primary Entrances.

20

Taco Bell argues that with respect to restaurants built before April 1, 1994, Plaintiffs

21 must show that the non-compliant exterior doors are “primary entrances” in order to prevail

22 under Title 24. (Opp. Br. at 33-34.) As set forth below, this standard is met because all

23 customer entrances constitute “primary entrances” under Title 24.

24

25

26

27

26 Defendant’s “effective access” argument was limited to doors. (Opp. Br. at 7-

8.) Naturally, Plaintiffs response would apply with equal force to other elements as well. 28

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1

Taco Bell asserts that only “the” primary entrance need comply with the door force

2 requirements, suggesting that there is only one primary entrance at each restaurant. (Opp. Br.

3 at 33.) This is not the case.

4

A “primary entrance” is “any entrance to a facility which has a substantial flow of

5 pedestrian traffic to any specific major function of the facility.” Title 24-1981 § 2-417(k); Title

6 24-1984 § 2-417(k); Title 24-1987 § 2-417 at 26; Title 24-1989 § 417(s). Many of the

7 restaurants at issue here have more than one customer entrance, and each such entrance is a

8 primary entrance.

9

This issue has been explicitly addressed by California’s Office of the State Architect,

10 which set forth the following question and answer:

11

What is a primary entrance?

12

Section 417 states primary entrance shall mean any entrance to a facility which has a

substantial flow of pedestrian traffic to any specific major function of the facility.

13 As an example in a large shopping mall with several entrances to the mall area which

14

would be considered the primary entrance? All of them would!

15 (See 1989 Interpretive Manual, § 3301(f)(1), at 95 .) Thus in this case, all of the customer

16 entrances to Taco Bell restaurants are primary entrances and must comply with the door force

17 requirements of Title 24.

18 VIII. PLAINTIFFS’ ARE ENTITLED TO SUMMARY JUDGMENT FOR TACO BELL’S VIOLATIONS OF THE ACCESSIBLE SEATING REQUIREMENTS.

19 In their Opening Brief, Plaintiffs established that the indoor seating areas in 36

20 restaurants violate the requirements of Title 24 or the DOJ Standards concerning the number of

21 seating locations, and that accessible seating positions in 21 post-1993 stores did not provide

22 the knee clearance required by section 4.32.3 of the DOJ Standards (subject to agreed

23 tolerances). (Opening Br. at 22-23; Exs. 6-8 to Fox Decl.)

24 Taco Bell does not dispute that the indoor dining areas listed in Exhibits 6 and 8 violate

25 the requirements of the DOJ Standards and Title 24, respectively, concerning the number of

26 accessible seating locations, other to contend that these claims are moot, addressed below.

27 With respect to the stores in Exhibit 7 -- which Plaintiffs argue violate the knee clearance

28
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1 requirements for accessible seating positions -- Taco Bell asserts that knee clearance is not

2 required to be centered under the table and that, because it is unknown whether the Special

3 Master imposed such a requirement when measuring, summary judgment is not appropriate.

4 Defendant is incorrect: (1) knee clearance is required to be centered on the table top; and given

5 that fact, (2) we do not need to know whether the Special Master required centering or not.

6

A. Knee Clearance Under Tables is Required to be Centered.

7

Section 4.32.3 of the DOJ Standards requires knee clearance 27 inches high, 19 inches

8 deep and 30 inches wide under fixed tables. The question raised by Defendant’s argument is

9 whether the 30-inch dimension -- the side-to-side width of the knee clearance under the table --

10 must be centered under the table or whether it can be off to one side. The DOJ Standards make

11 it clear that centering is required. Section 4.32.3 cross references Figure 45, which provides

12 the following illustration where of a single wheelchair seating area on one side of a table:

13

14

15

16

17

18

19

20

21

22 23 In this Figure, the dotted line outlines the required clear floor space adjacent to and underneath 24 a fixed table. The 30-inch dimension corresponds to the 30-inch-wide knee clearance required 25 by section 4.32.3. This illustration clearly shows that the 30-inch dimension is centered on the 26 table in question. Common sense supports this interpretation. If the knee clearance area were 27 not required to be centered, a wheelchair-using patron could end up sitting considerably off to

28
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1 one side, unable to make use of much of the table. This presents an especially challenging

2 situation in restaurants such as Defendant’s, where many of the dishes on the menu are

3 prepared with sauces and intended to be consumed by hand.

4

B. Since Knee Clearance Is Required to Be Centered, Where the Special

Master Found less than the Required Knee Clearance, it Is Irrelevant

5

Whether He Measured it Centered or Not.

6

It is true that the parties do not know whether the Special Master required knee

7 clearance area to be centered on the table. This, however, has no effect on the list of

8 noncompliant tables in Exhibit 7.

9

If the Special Master correctly required the knee clearance to be centered, then all of the

10 tables in that exhibit are out of compliance. If the Special Master incorrectly permitted the

11 knee clearance area to be off-center -- that is, that the 30-inch side-to-side width of the knee

12 clearance could be anywhere along one side of the table -- that would permit a much larger

13 area to be considered as part of the required width. If the Special Master used this standard and

14 still found less than the required knee clearance, then the tables in Exhibit 7 would all the more

15 so be out of compliance. The only result of such a mistake would be that many of the tables at

16 which the Special Master found compliant knee clearance -- none of which feature in Plaintiffs’

17 motion -- would in fact be out of compliance.

18

In light of this, for the purposes of this motion, it is not necessary to find out whether

19 the Special Master required knee clearance to be centered on each table in order to hold that the

20 tables in Exhibit 7 are out of compliance with section 4.32.3 of the DOJ Standards.

21 IX. PLAINTIFFS’ ADA CLAIMS ARE NOT MOOT.

22

Defendant argues that Plaintiffs’ claims for injunctive relief under the ADA relating to

23 door force, queue lines and accessible seating are moot -- Taco Bell makes no such argument

24 with respect to Plaintiffs’ state law claim. Because Taco Bell cannot satisfy the heavy burden

25 it bears to make it absolutely clear that the challenged conduct cannot reasonably be expected

26

27
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1 to recur -- that is, the those elements will never be inaccessible in the future -- an injunction is

2 necessary to ensure compliance. Plaintiffs’ claims are, as a result, not moot.

3

The following sections demonstrate that Plaintiffs’ claims for injunctive relief are not

4 moot. Ultimately, however, even if Taco Bell was able to meet its heavy burden of showing

5 that the architectural elements have been remedied, and that the challenged conduct will not

6 recur, the legal questions presented by this Motion are not moot. Plaintiffs are seeking 7 monetary relief for class members based on Defendant’s violations of the DOJ Standards27 and

8 Title 24. Thus the question of whether the architectural elements at issue were in violation of

9 the ADA or state law before they allegedly were remedied by Defendant must be addressed to

10 determine Defendant’s liability for damages.

11

A. Factual Background Relevant to Mootness.

12

Taco Bell has previously informed this Court that, “[d]ue to regular maintenance,

13 remodels, repairs, and normal wear and tear, virtually every accessibility element [in a Taco

14 Bell store] is subject to change over time so that evidence that an element is or is not in

15 compliance today (for purposes of determining injunctive relief) is not dispositive of whether

16 the same element was in compliance” at the time of any class member visit. (Def.’s Motion.

17 for Modification of Class Definition, Docket No. 110, at 3, see also id. at 9-10.) Taco Bell

18 made clear that among the elements subject to “frequent change” were two of those at issue

19 here -- door force and seating -- and that, more broadly, “many stores undergo remodeling or

20 upgrading.” (Decl. of Jaime de Beers in Support of Def.’s Motion. for Modification of Class

21 Definition (“de Beers Decl.”) ¶¶ 6(a)(xvi), (b)(iv), (c)(vi), 8.)

22

While Taco Bell restaurants may change frequently due to maintenance, remodeling,

23 repairs, and wear and tear, Taco Bell has ignored years of opportunities -- nine years, in the

24 case of queue lines and four years in the case of the other elements at issue here -- to make

25

27 Although damages are not recoverable under Title III of the ADA, a violation of 26 the ADA constitutes a violation of the CDPA and Unruh entitling plaintiff to damages. Cal.
Civ. Code §§ 51(f) & 54(c). 27

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1 changes to bring those stores into compliance with wheelchair access standards. In October,

2 1997, the Colorado Cross-Disability Coalition sued Taco Bell alleging that the queue lines in

3 its Colorado restaurants violated the DOJ Standards. Colorado Cross-Disability Coalition v. 4 Taco Bell Corp., No. 97-cv-2135-LTB (D. Colo.) (“CCDC”) (Robertson Decl. ¶ 2.)28 In

5 January, 1999, the Department of Justice filed an amicus brief in that case taking the position

6 that Taco Bell’s queue lines were out of compliance with section 4.3.3 and figure 7(b) of the 7 DOJ Standards. (Brief at 15-20, Fox Decl., Ex. 14).)29

8

The parties to the CCDC case reached a settlement in early 2000 that required Taco

9 Bell to bring the queue lines in its Colorado corporate Taco Bell stores into compliance with

10 section 4.3.3 or 4.2 and 5.5 of the DOJ Standards by December 31, 2001. (Robertson Decl. ¶

11 3 & Ex. 1.) The CCDC plaintiffs’ investigation in mid-2002 revealed, however, that many of

12 the queue lines that Taco Bell had promised to remedy -- in a class action settlement approved

13 by a federal district judge, see Robertson Decl. ¶ 4 & Ex. 2 -- remained out of compliance. It

14 was only after the undersigned contacted counsel for Taco Bell and threatened to take the

15 matter to arbitration (as provided in the settlement) that Taco Bell finally complied.

16 (Robertson Decl. ¶¶ 5-8 & Exs. 3-6.)

17

Five years after the CCDC case was filed, four years after Taco Bell learned the DOJ’s

18 position on queue lines, two years after the CCDC case settled, and six months after Taco Bell

19 had to be threatened with arbitration to get it to carry out its judicially-approved promise to

20 remedy queue lines in Colorado, the investigation preliminary to the filing of the present case

21

22

23

28 Fox & Robertson, counsel for Plaintiffs here, was counsel for the plaintiffs in

the CCDC case. Taco Bell was represented in that case by Holland & Hart, a Denver firm that 24 was counsel for Taco Bell in this case for the first year and a half. Taco Bell’s in-house

counsel, Richard Deleissegues, is the in-house counsel responsible for both the CCDC case and 25 the present case. (Robertson Decl. ¶ 2.)

26

29 The DOJ’s position in this amicus brief is entitled to deference. (See Opening

Br. at 12 & n.17.) 27

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1 revealed that many queue lines in California corporate Taco Bell stores continued to be out of

2 compliance with the DOJ Standards in precisely the way the Colorado queue lines had been.

3

This lawsuit was filed in December, 2002. Taco Bell took no action to remedy its

4 queue lines or any of the other violations alleged in the complaint. In the summer of 2004, the

5 parties received the results of the Special Master’s pilot program: survey forms showing

6 extensive violations at 20 stores selected by Taco Bell and jointly surveyed by the Special

7 Master and the parties. Taco Bell took no action to remedy its queue lines or any of the other

8 violations identified by the Special Master as recurring throughout those 20 stores. In the

9 summer of 2005, the parties received survey results from the Special Master for over 220

10 corporate Taco Bell stores. Still, Taco Bell did not take action to remedy the myriad violations

11 identified by the Special Master. Only in the summer of 2006 -- almost nine years after it was 12 first sued in Colorado30 -- did Taco Bell retain a construction management company to make

13 certain modifications to its stores. (See Decl. of Sabrina Ford in Support of Defendant. Taco

14 Bell Corp.’s Mem. of Points and Authorities in Opp’n to Plaintiffs.’ Motion. for Partial Summ.

15 J. (“Ford Decl.”) ¶ 2.)

16

In the various documents filed with its opposition brief, Taco Bell now claims to have

17 remedied 51% of the queue lines, 63 % of the seating, and 65% of the interior doors on which

18 Plaintiffs moved under the ADA. (See Robertson Decl. ¶¶ 11, 14, 17.) In addition, Taco Bell

19 claims that it will, in the future, modify or eliminate certain queue lines, replace certain door

20 closers, and inspect door pressure. (See Decl. of Joseph M. DeBella, P.E., in Support of

21 Defendant. Taco Bell Corp.’s Mem. of Points and Authorities in Opp’n to Plaintiffs.’ Motion.

22 for Partial Summ. J. (“DeBella Decl.”) ¶¶ 4-7, Decl. of Mike Harkins in Support of Defendant.

23

24

30 Not to mention twenty-five years after the California Building Code first

included requirements governing interior and exterior door force, queue lines and accessible 25 restaurant seating, see Title 24-1981 §§ 2-402(d), 2-611(c)(3) & (c)(4), 2-710(a)(7)(A), 2-

3303(l)(2), and fifteen years after the DOJ Standards were published with provisions governing 26 those elements (save exterior door force) as well. DOJ Stds. §§ 4.1.3(18), 4.3.3 & Fig. 7(b),

4.13.11(2)(b) & 4.32.3. 27

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1 Taco Bell Corp.’s Mem. of Points and Authorities in Opp’n to Plaintiffs.’ Motion. for Partial

2 Summ. J. (“Harkins Decl.”) ¶ 2.) Despite the fact that it has not remedied all of the seating

3 violations covered by the ADA, Taco Bell makes no attempt to promise future seating

4 remedies, but rather relies on its general “intent to serve all of its customers regardless of

5 physical disability.” (Opp. Br. at 39.) Finally, nowhere in the materials submitted with Taco

6 Bell’s Opposition Brief does that company commit to ensuring that newly built or acquired

7 stores have compliant doors, queue lines and seating areas, nor does it commit to ensuring that,

8 throughout the “frequent changes” due to “regular maintenance, remodels, repairs, and normal

9 wear and tear,” queue lines and accessible seating positions will be maintained to comply with

10 applicable standards.

11

Taco Bell’s future promises relating to queue lines and doors clearly do not reflect a

12 change in corporate policy. Rather, they are carefully circumscribed to apply only to

13 “California company-owned stores,” or even -- in the case of door force inspection --

14 “California company-owned Taco Bell stores currently in existence that are at issue in the

15 present action.” (DeBella Decl. ¶¶ 4-7, Harkins Decl. ¶ 2.) The survey form relating to the

16 latter limits the requirement that Taco Bell employees inspect customer restroom doors -- an

17 element covered by the DOJ Standards, see id. § 4.13.11(2)(b), and thus having nationwide

18 application -- to “CA ONLY.” (Id. ¶ 3 and Ex. 2.) Taco Bell has not decided to implement a

19 company-wide policy of compliant queues, doors, and tables; it has simply done the least

20 possible work -- in fact, somewhat less than the least possible, with limited promises of future

21 work -- to attempt a mootness argument in this case.

22

Finally, it is important to note that Taco Bell vigorously defends the legality of the

23 status quo. It argues that it is not required to remedy any elements that are out of compliance

24 with Title 24 (Opp. Br. at 19-33) and that the current configuration of its queue lines is

25 acceptable even under the ADA (id. at 38-39), while promising -- only in response to the

26

27
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1 present motion -- to remedy not all stores or even all queues, doors and seating company-wide,

2 but only those select elements at issue in this motion.

3

B. Defendant Has Not Satisfied its Heavy Burden of Persuading the Court

that the Challenged Conduct Cannot Reasonably Be Expected to Start Up

4

Again.

5

It is well established that Defendant’s “‘voluntary cessation of a challenged practice’”

6 cannot moot Plaintiffs’ claim unless “‘subsequent events [make] it absolutely clear that the

7 allegedly wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth,

8 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations omitted). Taco

9 Bell has the “‘heavy burden of persua[ding]’ the court that the challenged conduct cannot

10 reasonably be expected to start up again.” Id. (citations omitted; alteration in original). “The

11 possibility that [the defendant] may change its mind in the future is sufficient to preclude a

12 finding of mootness.” United States v. Generix Drug Corp., 460 U.S. 453, 456 n.6 (1983); see

13 also United States v. W.T. Grant, 345 U.S. 629, 632 (1953) (Holding that if voluntary cessation

14 renders the action moot, “[t]he defendant is free to return to his old ways”).

15

1. Taco Bell’s Statements Concerning its Intent to Comply in the

Future Are Insufficient to Satisfy its Heavy Burden.

16 Defendant’s promises of future compliance, standing alone, “cannot suffice to satisfy

17 the heavy burden of persuasion which we have held rests upon” a party urging mootness.

18 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); see also

19 Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982) (“A promise to refrain from

20 future violations is . . . not sufficient to establish mootness.”); Envtl. Prot. Info. Ctr. v. Pac.

21 Lumber Co., 430 F. Supp. 2d 996, 1006 (N.D. Cal. 2006) (the defendant’s “self-serving

22 statement falls far short of satisfying its heavy burden to “assert[ ][ ] or demonstrate[ ] that [it]

23 will never resume” the challenged conduct.”). Defendant’s statements that it intends to remedy

24 certain queue lines or door closers in the future or intends to implement a policy of inspecting

25 its doors will not suffice to render those claims moot.

26

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1

A number of ADA cases have held that promised improvements and policy changes do

2 not moot a claim for injunctive relief under that statute. In Cupolo v. Bay Area Rapid Transit,

3 5 F. Supp. 2d 1078, 1080 (N.D. Cal.1997), for example, the plaintiffs sued alleging lack of

4 access to San Francisco’s mass transit system and -- in the matter before the court -- moved for

5 a preliminary injunction concerning the maintenance and repair of the system’s elevators. In

6 response, the defendant argued the plaintiffs’ claims for injunctive relief were moot in light of

7 steps it had taken to rectify the problems including actual and planned upgrades in physical

8 facilities and a new preventive maintenance program. Id. at 1084. The court rejected this

9 argument -- and ultimately granted the plaintiffs’ motion for a preliminary injunction -- on the

10 grounds that such voluntary cessation of the illegal conduct was insufficient to demonstrate

11 that the problems had been solved. Id.

12

Similarly, in Clavo v. Zarrabian, No. SACV03864CJCRCX, 2004 WL 3709049 (C.D.

13 Cal. May 17, 2004), the defendant claimed to have instituted new policies to remedy the fact

14 that its turnstile gate and accessible check-out aisle were often inaccessible to the plaintiff, a

15 customer who used a wheelchair. The court rejected this argument -- and granted the plaintiff’s

16 motion for partial summary judgment -- based on the fact that the defendant’s

17

implementation of a new policy does not eliminate the possibility of future

violations when it has always had a wheelchair accessible gate and check-out

18

aisle, it had an entrenched policy of blocking access to those fixtures in

violation of well established law and, despite Plaintiff’s complaints, it failed to

19

change that policy until after this case was filed.

20 Id. at *4. See also, e.g., Buchanan v. Consol. Stores Corp., 217 F.R.D. 178, 189, n. 4 (D. Md.

21 2003) (holding that the plaintiffs’ claims for race discrimination in public accommodations

22 were not mooted by the adoption of a new policy, noting that the “Defendants’ commitment to

23 the new . . . policy is questionable, having instituted it just several months after the filing of

24 this lawsuit.”); Watanabe v. Home Depot USA, Inc., No. CV025088RGKMCX, 2003 WL

25 24272650, at *4 n.2 (C.D. Cal. July 14, 2003) (Holding that a memorandum circulated to the

26 defendant’s employees concerning preserving access to parking spaces was not sufficient to

27
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1 render ADA claims moot: “Defendant has wholly failed to meet its heavy burden. As discussed

2 herein, Defendant provides no evidence or persuasive argument that its unlawful conduct will

3 not continue”); Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1382

4 (N.D. Ga. 2002) (“Improvements in service will not preclude injunctive relief where there has

5 been a clearly established pattern of failing to provide an acceptable level of service to the

6 disabled.”); cf. Desert Outdoor Advertising v. City of Oakland, No. C 03-1078-MJJ, 2005 WL

7 147582 at *2 (N.D. Cal. Jan. 20, 2005) (analyzing voluntary cessation doctrine and holding

8 that city’s enactment of amended ordinance did not moot the plaintiff’s case because it

9 provided “no evidence that it will not re-enact the prior legislation” when the temporary

10 ordinance expires).

11

2. Taco Bell’s Physical Modification of its Restaurants is Insufficient to

Satisfy its Heavy Burden.

12 The fact that some of the actions Taco Bell claims to have taken involve physical

13 changes to their stores does not moot the corresponding claims for injunctive relief. Because

14 this, too, represents voluntary cessation of challenged conduct, Taco Bell has the burden of

15 demonstrating that it is “absolutely clear that the allegedly wrongful behavior could not

16 reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 170. Given the

17 unremarkable fact that many of the elements in Taco Bell restaurants change frequently due to

18 “regular maintenance, remodels, repairs, and normal wear and tear” (see Def.’s Motion. for

19 Modification of Class Definition at 3), Taco Bell cannot satisfy this burden.

20 Taco Bell has explained that, because of this frequent change, the fact that an element is

21 in compliance at one time “is not dispositive of whether the same element is in compliance” at

22 another time. (Id.) Thus evidence of the current (allegedly) compliant status of certain

23 elements “is not dispositive” of whether they will continue to be compliant in the future, and

24 such evidence cannot satisfy Taco Bell’s heavy burden to show that its violations will not

25 recur. Although Taco Bell has not even attempted to do so, it would not be sufficient were it to

26 promise that doors, queue lines and seating would be maintained as accessible through future

27

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1 maintenance, remodels, repairs and wear and tear: as demonstrated in the section immediately

2 above, such a promise of future compliance would not satisfy its heavy burden.

3

Taco Bell cites a number of cases involving physical changes in which courts have held

4 ADA claims to be moot. All are distinguishable: in none of the cases was there evidence that

5 the elements in question remained subject to “frequent change.” Furthermore, in three of the

6 cases, the plaintiffs had conceded that the claims were moot. Brother, 317 F. Supp. 2d at 1372;

7 Pickern v. Best Western Timber Cover Lodge Marina Resort, 194 F. Supp. 2d 1128, 1130

8 (E.D. Cal. 2002); Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1087 (D. Haw. 2000).

9 The Troiano case involved a government defendant, which the Eleventh Circuit found to be

10 dispositive. Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir. 2004) (“when

11 the defendant is not a private citizen but a government actor, there is a rebuttable presumption

12 that the objectionable behavior will not recur.”). Finally, in the Hickman case -- which also

13 involved a government defendant -- the primary reason the case was held to be moot was that

14 all of the prisoner plaintiffs has been paroled. Hickman v. Missouri, 144 F.3d 1141, 1142 (8th

15 Cir. 1998). Even the paragraph from which Defendant quotes extensively concludes thus:

16 “‘The defendants cannot resume their allegedly illegal conduct [as to plaintiffs] until [they]

17 voluntarily commit[ ] an act justifying [their] parole revocation.’” Id. at 1144.

18

3. Not Only Is Effective Injunctive Relief Possible, it Is Essential to

Ensure That Taco Bell Complies with the Law.

19 “To establish mootness, a defendant must show that the court cannot order any effective

20 relief.” San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th Cir. 2002).

21 “[T]he question is not whether the precise relief sought at the time the application for an

22 injunction was filed is still available. The question is whether there can be any effective

23 relief.” Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001) (internal quotations

24 omitted). In this case, even if certain queue lines, doors and seating were in compliance in the

25 summer of 2006 (see generally Ford Decl.; Decl. of Aaron Kane in Support of Defendant. Taco

26 Bell Corp.’s Mem. of Points and Authorities in Opp’n to Plaintiffs.’ Motion. for Partial Summ.

27

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1 J.), this Court can still order effective relief as to those elements in the form of an injunction

2 requiring Taco Bell to (1) remedy the remainder of these elements that are out of compliance;

3 (2) maintain those elements in a compliant state; and (3) ensure that those elements comply in

4 any new or acquired stores.

5

In light of Taco Bell’s past behavior, such an injunction is not only possible, it is

6 essential. As explained in detail above, in a previous case, Taco Bell signed a settlement

7 agreement and submitted it for approval by a federal judge promising to remedy queue lines in

8 all of its Colorado stores. Six months after the deadline set forth in that settlement agreement,

9 many of the promised queue lines remained unremedied. This demonstrates that an

10 enforceable injunction is required to ensure Taco Bell’s performance of its promised 11 remediation and maintenance.31

12

Other factors also undermine the sincerity of Taco Bell’s promises. Where a litigant

13 attempts to remedy a problem during litigation while continuing to assert the legality of its

14 original conduct, this suggests that the conduct is likely to resume. See, e.g., Envtl. Prot. Info.

15 Ctr., 430 F. Supp. 2d at 1006 (holding that the defendant’s “persistent representations” that the

16 challenged operations were legal “are an additional factor suggesting that there is a likelihood

17 that [the defendant] will resume the challenged activity.”); Blue Ocean Pres. Soc’y v. Watkins,

18 767 F. Supp. 1518, 1525 (D. Haw. 1991) (holding that “the likelihood of recurrence of

19 challenged activity is more substantial when the cessation is not based upon a recognition of

20 the initial illegality of that conduct.” (citing Walling v. Helmerich & Payne, Inc., 323 U.S. 37,

21 43 (1944)).). Here, Taco Bell argues -- in the same brief in which it argues for mootness -- that

22 the challenged queue line configuration is legal and that it does not have to bring any of the

23 challenged elements into compliance with Title 24.

24

31 Taco Bell concedes that if Plaintiffs can provide evidence that Defendant’s 25 “expressed intent is disingenuous” then the claims are not moot. (Opp Br. at 37, 39.) While
this misstates the burden of proof -- the “heavy burden” remains on Defendant to demonstrate 26 mootness -- Plaintiffs have in fact provided significant evidence calling into question the
credibility of Defendant’s promise of future compliance. 27

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1

It is also suspect that Taco Bell waited nine years after first receiving notice that its

2 queue lines were noncompliant and four years after the filing of this case before promising to

3 remedy the challenged conduct, and then only within a universe carefully circumscribed to

4 include only the types of elements at issue in the present motion. The Supreme Court has

5 cautioned that “[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by

6 protestations of repentance and reform, especially when abandonment seems timed to

7 anticipate suit, and there is probability of resumption.” United States v. Oregon State Med.

8 Soc’y, 343 U.S. 326, 333 (1952); see also Armster v. United States Dist. Court, 806 F.2d

9 1347, 1357 (9th Cir. 1986) (holding that “[a] change of activity by a defendant under the threat

10 of judicial scrutiny is insufficient to negate the existence of an otherwise ripe case or

11 controversy [under the voluntary cessation exception to mootness].”).

12

CONCLUSION

13

For the reasons set forth above, Plaintiffs respectfully request that their Motion for

14 Partial Summary Judgment be granted.

15 Respectfully submitted,
16 FOX & ROBERTSON, P.C.
17

18 19 20 21 22 23
April 13, 2007 24

By: /s/ Timothy P. Fox Timothy P. Fox, Cal. Bar No. 157750 Amy F. Robertson, pro hac vice Ari Krichiver, pro hac vice 910 - 16th Street, Suite 610 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

25

26

27
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1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
650 Town Center Drive, Suite 1700 3 Costa Mesa, California 92626
Telephone: (714) 708-6500 4 Facsimile: (714) 708-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5 Attorneys for Defendant
TACO BELL CORP. 6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 SAN FRANCISCO DIVISION
11

12 FRANCIE E. MOELLER, et al.,

13

Plaintiffs,

14 vs.

15 TACO BELL CORP.,

16

Defendant.

17

18

CASE NO. C 02-5849 MJJ ADR SUR-REPLY IN SUPPORT OF TACO BELL CORP’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT

DATE: TIME: CTRM: JUDGE:

May 17, 2007 9:30 a.m. 11 Hon. Martin J. Jenkins

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1

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................... 1

2 II. ARGUMENT ......................................................................................................................................... 1

3

A. Plaintiffs Have Failed to Satisfy Their Burden of Proof to Show Why They Have

4

Standing to Obtain Permanent Injunctive Relief as to the Three Issues Raised in Their Motion. . 2

1. Applicable Standard................................................................................................ 2 5
(a) Article III Standing......................................................................................... 2

6

(b) Test for Injunctive Relief ............................................................................... 3

7

2. Plaintiffs’ Motion Should Be Denied for Failing to Even Address or Apply the

Applicable Legal Standards for Proving Article III Standing and Obtaining Permanent

8

Injunctive Relief.................................................................................................................. 5

9

3. Plaintiffs Have Failed to Demonstrate an Irreparable Injury.................................. 5

10

(a) Subsequent to Taco Bell’s March 23, 2007 Filing of Its Opposition Papers,

Taco Bell Has Continued to Modify a Substantial Number of Its Stores............... 5

11

(b) Taco Bell Intended to Modify the Stores That Are the Subject of This Sur-

12

Reply Literally Months Before Plaintiffs Filed The Instant Motion. ..................... 7

(c) Other Stores at Issue Are Either Scheduled for Modification in the

13

Remainder of 2007 or 2008 or Are Not Subject to Injunctive Relief Because They

14

Are Closed, Now Operated By a Franchisee, or Otherwise Beyond Taco Bell’s

Control. ................................................................................................................... 8

15

(d) Plaintiffs’ Inference That Taco Bell’s Project Managers Surveyed the Bulk

16

of the Modifications in the Summer of 2006 Is Misleading. .................................. 9

(e) Taco Bell’s Modifications Are Not Limited to the Elements At Issue in the

17

Present Motion. ..................................................................................................... 10

18

(f) Taco Bell Has Modified Virtually All of the Disputed Elements At Issue in

the Instant Motion Rendering the Likelihood of Future Irreparable Injury

19

Speculative and the Instant ADA Claims for Injunctive Relief Moot. ................. 10

20

(g) Plaintiffs Offer Mere Speculation or “Subjective Apprehensions” About

Future Injuries....................................................................................................... 12 21
(h) The Court Should Disregard Plaintiffs’ Transparent and Improper Attempt

22

to Bias the Court By Referring to Allegations of Taco Bell’s “Past Behavior”. .. 14

23

(i) Plaintiffs’ Criticism of Taco Bell For Not Acting Sooner, But Their Threat to

Assert Spoliation Arising From the Modifications Made Rings Hollow. ............ 14

24

(j) The Class Is Limited to California Wheelchair-Bound Patrons.................... 15

25

4. Plaintiffs Have Failed to Meet Their Burden of Demonstrating that Remedies

Available At Law Are Inadequate. ................................................................................... 16 26
5. Plaintiffs Have Failed to Address or Satisfy Their Burden of Demonstrating That

27

the Balance of Hardships Tips in Favor of Plaintiffs........................................................ 16

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6. Plaintiffs Have Failed to Address or Satisfy Their Burden as to Whether the

1

Public Interest Would Be Disserved By a Permanent Injunction. .................................... 17

2

B. Plaintiffs Confuse the Constitutional Mootness Doctrine With Whether the Court Can

Grant Any Effectual Relief Regarding Plaintiffs’ State Law Claims for Damages. .................... 17 3
C. Plaintiffs Ignore the “Fairness” and “Comity” Values in Addressing the Exercise of

4

Supplemental Jurisdiction............................................................................................................. 18

5

6

7

8

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1

TABLE OF AUTHORITIES

2 Federal Cases ACLU of Nevada v. Lomax

3 471 F.3d 1010 (9th Cir. 2006) .......................................................................................................... 2, 17

Animal Legal Defense Fund v. Espy 4 23 F.3d 496 (D.C. Cir. 1994) .................................................................................................................. 2

5 Arkansas Acorn Fair Housing, Inc. v. Greystone Limited Corp. 992 F. Supp. 1064 (E.D. Ark. 1998)....................................................................................................... 2

6 Bird v. Lewis & Clark College

303 F.3d 1015 (9th Cir. 2002) ................................................................................................................ 3 7 Buckhannon Bd. and Care Home, Inc., v. West Virginia

8

Dep’t of Health and Human Resources 532 U.S. 598 (2001)........................................................................................................................ 15, 17

9 Carnegie-Mellon Univ. v. Cohill 484 U.S. 343 (1988).............................................................................................................................. 19

10 City of Los Angeles v. Lyons

461 U.S. 95 (1983)......................................................................................................................... passim 11 Clark v. McDonald’s Corp.

12

213 F.R.D. 198 (D.N.J. 2003)................................................................................................................. 2 Connecticut v. Massachusetts

13 282 U.S. 660 (1930).......................................................................................................................... 4, 13 eBay Inc. v. Mercexchange, L.L.C.

14 126 S. Ct. 1837 (2006)............................................................................................................................ 3

Executive Software North America, Inc. v. 15 United States District Court for the Central District of California

16

24 F.3d 1545 (9th Cir. 1994) .......................................................................................................... 18, 19 Fox v. City of West Palm Beach

17 383 F.2d 189 (5th Cir. 1967) .................................................................................................................. 4

Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc.

18 528 U.S. 167 (2000)....................................................................................................................... passim

Ghandi v. Police Department of City of Detroit 19 747 F.2d 338 (6th Cir. 1984) .................................................................................................................. 4

20 Gomez v. Vernon 255 F.3d 1118 (9th Cir. 2001) ................................................................................................................ 4

21 Herman Family Revocable Trust v. Teddy Bear

254 F.3d 802 (9th Cir. 2001) ................................................................................................................ 18 22 Lewis v. Continental Bank Corp.

23

494 U.S. 472 (1990).............................................................................................................................. 15 Lujan v. Defenders of Wildlife

24 504 U.S. 555 (1992)........................................................................................................................ 2, 3, 5 Madrid v. Gomez

25 889 F. Supp. 1146 (N.D. Cal. 1995) ............................................................................................... 13, 14

Newhouse v. Probert 26 608 F. Supp. 978 (W.D. Mich. 1985) ............................................................................................... 4, 13

27

Organization for the Advancement of Minorities with Disabilities Suing on Behalf of Its Members v. Brick Oven Restaurant

28 406 F. Supp. 2d 1120 (S.D. Cal. 2005)................................................................................................... 2

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Pickern v. Best Western Timber Cove Lodge Marina Resort 1 194 F. Supp. 2d 1128 (E.D. Cal. 2002)................................................................................................. 20

2 Plain Dealer Publishing Co. v. Cleveland Typographical Union 520 F.2d 1220 (6th Cir. 1975) ................................................................................................................ 4

3 Scott v. Pasadena Unified Sch. Dist.

306 F.3d 646 (9th Cir. 2002) ...................................................................................................... 3, 12, 18 4 SEC v. Bonastia

5

614 F.2d 908 (3d Cir. 1980).............................................................................................................. 4, 13 Singleton v. Anson County Bd. of Educ.

6 283 F. Supp. 895 (W.D.N.C. 1968) ........................................................................................................ 4 United Mine Workers of America v. Gibbs

7 383 U.S. 715 (1966).................................................................................................................. 18, 19, 20

United States v. Alaska S.S. Co. 8 253 U.S. 113 (1920).............................................................................................................................. 15

9

United States v. Barr Labs., Inc. 812 F. Supp. 458 (D.N.J. 1993) ........................................................................................................ 4, 13

10 United States v. Viltrakis 108 F.3d 1159 (9th Cir. 1997) ................................................................................................................ 2

11 Wander v. Kaus

304 F.3d 856 (9th Cir. 2002) ............................................................................................................ 2, 20 12 Whitefield v. California

13 2007 WL 496342 (E.D. Cal. Feb. 13, 2007)........................................................................................... 3 Wilson v. Costco Wholesale Corp.

14 426 F. Supp. 2d 1115 (S.D. Cal. Mar. 29, 2006) .................................................................................... 3

Wilson v. Haria and Gogri 15 2007 WL 851744 (E.D. Cal. Mar. 22, 2007) ........................................................................................ 20

16 Federal Statutes 28 U.S.C. § 1367(c)(1)-(2)........................................................................................................................ 18
17 Federal Rules of Civil Procedure 56(e) ...................................................................................................... 7
Federal Rules of Evidence 402 ........................................................................................................... 14, 16 18 Federal Rules of Evidence 403 ........................................................................................................... 14, 16
19 Federal Rules of Evidence 407 ................................................................................................................. 15

20 Other Authorities 21 Singer, Norman J., Sutherland Statutes and Statutory Construction
§ 48:11 (6th ed. updated Oct. 2006) ..................................................................................................... 20
22

23

24

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Plaintiffs are not entitled to partial summary judgment because they have failed to meet their

4 burden of proof to satisfy the elements for Article III standing to obtain injunctive relief as to the three

5 issues raised in the instant Motion (door opening force, queue lines, and indoor seating). In particular,

6 given the modifications made by Taco Bell Corp. (“Taco Bell”) to the vast majority of the 180 stores at 7 issue in the instant Motion,1 plaintiffs have failed to demonstrate that they are in imminent danger of

8 future injury as to the three aforesaid issues, as required, or that injunctive relief ordered in this case

9 would redress such injury given the extent of the modifications already made and scheduled to be made

10 immediately.

11

In addition, Taco Bell has rebutted the mere evidentiary presumption that voluntary cessation of

12 conduct does not make a claim moot. Given that it would be unreasonable to assume that Taco Bell

13 would undertake the tremendous effort and incur great expense to modify the vast majority of the stores

14 at issue in the instant Motion and continue to engage in the challenged practices at issue here, Taco Bell

15 submits that its actions have rendered the claims at issue in the instant Motion moot.

16

Finally, plaintiffs’ supplemental state law claims relating to the three issues are required to be

17 dismissed given plaintiffs’ lack of standing to obtain injunctive relief as to such issues. Indeed, even if

18 the Court determines that such claims are not required to be dismissed, comity and fairness principles

19 compel the Court to decline to exercise supplemental jurisdiction to avoid the tail of state law damages

20 wag the dog of federal court original jurisdiction.

21

II. ARGUMENT

22

23

1
24

For ease of reference, Taco Bell has submitted to the Court a color-coded chart attached as

Exhibit “2” to the Declaration of Steve Elmer depicting: (1) plaintiffs’ allegations as to the three issues

25 raised in the instant Motion (exterior or interior door opening force, queue lines, and accessible indoor

seating) at the 180 stores addressed in the Motion; (2) Taco Bell’s modifications that were completed as 26 of the filing of Taco Bell’s March 23, 2007 Opposition and Taco Bell’s modifications completed

27

thereafter; and (3) Taco Bell’s asset strategy for other stores that shall be subject to remodeling or replacement in the near future. Not only does Taco Bell have an asset strategy in place to address and

28 respond to each of the alleged violations relating to the allegations at issue in the instant Motion, but also as to additional violations claimed throughout the stores.

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1 A. Plaintiffs Have Failed to Satisfy Their Burden of Proof to Show Why They Have Standing

2

to Obtain Permanent Injunctive Relief as to the Three Issues Raised in Their Motion.

3

1. Applicable Standard

4

Despite having the burden of proof to establish standing throughout the entirety of the litigation,

5 plaintiffs’ initial moving and reply papers are completely bereft of the applicable legal standard for

6 establishing Article III standing and for obtaining a permanent mandatory injunction, which is the only

7 relief available under the ADA given that damages are not available under the ADA. Wander v. Kaus,

8 304 F.3d 856, 857 (9th Cir. 2002) (“Congress intended that there be no federal cause of action for

9 damages for violation of Title III of the ADA.”). Given that standing to sue for equitable relief is an

10 issue that affects the invocation of federal jurisdiction, and is an issue that “can be raised at any time,

11 including by the court sua sponte,” United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997)

12 (emphasis added); see also ACLU of Nevada v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006) (holding

13 that the Ninth Circuit had an “independent obligation” to consider standing and mootness issues sua

14 sponte), Taco Bell addresses such legal standards below.

15

(a) Article III Standing

16

Standing “is a threshold jurisdictional requirement, derived from the ‘case or controversy’

17 language of Article III of the Constitution.” Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 (D.N.J.

18 2003). “[T]he party invoking jurisdiction must allege and support each element of standing.” Animal

19 Legal Defense Fund v. Espy, 23 F.3d 496, 506 n.3 (D.C. Cir. 1994) (Williams, J., concurring). The

20 party invoking federal jurisdiction bears the burden of establishing standing in the same way as any

21 other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of

22 evidence required at the successive stages of the litigation. Lujan v. Defenders of Wildlife, 504 U.S.

23 555, 561 (1992). “[A]t successive stages in the litigation, [plaintiff] may be required to submit

24 additional evidence in order to support his standing.” Organization for the Advancement of Minorities

25 with Disabilities Suing on Behalf of Its Members v. Brick Oven Restaurant, 406 F. Supp. 2d 1120, 1126

26 n.5 (S.D. Cal. 2005). “Lujan establishes that the burden of proving standing increases at each stage of

27 the proceedings.” Arkansas Acorn Fair Housing, Inc. v. Greystone Limited Corp., 992 F. Supp. 1064,

28 1068 (E.D. Ark. 1998). “The burden of establishing Article III standing remains at all times with the

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1 party invoking federal jurisdiction.” Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir.

2 2002). “[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of

3 the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 185 (2000); City of Los Angeles v.

4 Lyons, 461 U.S. 95, 109 (1983) (notwithstanding the fact that plaintiff had standing to pursue damages,

5 he lacked standing to pursue injunctive relief).

6

“First, the plaintiff must have suffered an injury in fact--an invasion of a legally protected

7 interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or

8 hypothetical. Second, there must be a causal connection between the injury and the conduct complained

9 of--the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the

10 independent action of some third party not before the court. Third, it must be likely, as opposed to

11 merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61

12 (internal citations and quotation marks omitted). “As part of establishing standing, the Plaintiff must

13 demonstrate that he has suffered or is threatened with a ‘concrete and particularized’ legal harm,

14 coupled with ‘a sufficient likelihood that [he] will again be wronged in a similar way[.]’” Wilson v.

15 Costco Wholesale Corp., 426 F. Supp. 2d 1115, 1119 (S.D. Cal. Mar. 29, 2006) (Hayes, J.) (quoting

16 Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002) (internal citations omitted)). “It is

17 the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s

18 subjective apprehensions.” Lyons, 461 U.S. at 107 n.8 (emphasis in original). “Abstract injury is not

19 enough.” Id. at 101.

20

(b) Test for Injunctive Relief

21

“According to well-established principles of equity, a plaintiff seeking a permanent injunction

22 must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1)

23 that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages,

24 are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the

25 plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be

26 disserved by a permanent injunction.” eBay Inc. v. Mercexchange, L.L.C., 126 S. Ct. 1837, 1839

27 (2006); Whitefield v. California, 2007 WL 496342, at *4 (E.D. Cal. Feb. 13, 2007) (Burrell, J.) (holding

28

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1 that to establish standing for injunctive relief, a plaintiff must allege not only a likelihood of future

2 injury, but also show an imminent threat of irreparable harm).

3

“In general, injunctive relief is ‘to be used sparingly, and only in a clear and plain case.’”

4 Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (emphasis added). “Injunction is an equitable

5 remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case.”

6 Plain Dealer Publishing Co. v. Cleveland Typographical Union, 520 F.2d 1220, 1230 (6th Cir. 1975)

7 (emphasis added). “Permanent injunctive relief is an extraordinary remedy which should be granted

8 only sparingly and only for compelling reasons.” Ghandi v. Police Department of City of Detroit, 747

9 F.2d 338, 343 (6th Cir. 1984) (emphasis added). “There is no question but that mandatory injunctions

10 are to be sparingly issued and upon a strong showing of necessity and upon equitable grounds which are

11 clearly apparent.” Fox v. City of West Palm Beach, 383 F.2d 189, 194 (5th Cir. 1967) (emphasis

12 added).

13

“[I]njunctive relief must be used sparingly, to prevent future harm, and not to punish past

14 violations.” United States v. Barr Labs., Inc., 812 F. Supp. 458, 487-88 (D.N.J. 1993) (emphasis added)

15 (citing SEC v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980)). “Permanent injunctive relief” “is not

16 available to prevent hypothetical injuries feared as liable to occur at some indefinite time in the future.”

17 Newhouse v. Probert, 608 F. Supp. 978, 984 (W.D. Mich. 1985) (citing Connecticut v. Massachusetts,

18 282 U.S. 660, 674 (1930)). “The injury complained of must be of such imminence that there is a ‘clear

19 and present’ need for equitable relief to prevent irreparable harm.” Newhouse, 608 F. Supp. at 984

20 (citation omitted).

21

“[A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for

22 every violation of law.” Friends of the Earth, 528 U.S. at 192. “Injunctive relief . . . is granted or

23 withheld in the exercise of a sound judicial discretion and in conformity with settled equitable principles

24 and considerations.” Singleton v. Anson County Bd. of Educ., 283 F. Supp. 895, 899 (W.D.N.C. 1968)

25 (emphasis added). Courts are more reluctant to impose a mandatory injunction than a prohibitory

26 injunction because a mandatory injunction “is not regarded with judicial favor and is used only with

27 caution and in cases of great necessity.” Id. “[F]ederal courts should aim to ensure ‘the framing of

28 relief no broader than required by the precise facts.’” Friends of the Earth, 528 U.S. at 193.

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1

2. Plaintiffs’ Motion Should Be Denied for Failing to Even Address or Apply the

2

Applicable Legal Standards for Proving Article III Standing and Obtaining

3

Permanent Injunctive Relief.

4

Plaintiffs have failed to articulate anywhere in their initial moving papers or reply the foregoing

5 tests for establishing Article III standing and for obtaining a permanent injunction, which are both

6 plaintiffs’ burden to satisfy. Given that plaintiffs move for partial summary judgment, plaintiffs cannot

7 rely upon mere allegations and must instead set forth by affidavit or other evidence “specific facts” to

8 support their alleged standing. Lujan, 504 U.S. at 561; Friends of the Earth, 528 U.S. at 198 (Scalia, J.,

9 dissenting); (Fed. R. Civ. P. 56(e)). Thus, on this basis alone, plaintiffs’ motion should be denied

10 because plaintiffs have failed to address or apply the correct legal standards for the instant Motion.

11

3. Plaintiffs Have Failed to Demonstrate an Irreparable Injury.

12

(a) Subsequent to Taco Bell’s March 23, 2007 Filing of Its Opposition Papers,

13

Taco Bell Has Continued to Modify a Substantial Number of Its Stores.

14

Subsequent to Taco Bell’s March 23, 2007 filing of its opposition papers, Taco Bell has

15 continued to modify a substantial number of its stores at issue in the instant Motion (approximately 58

16 stores and more are scheduled to occur in the immediate future), rendering the claims relating to such

17 stores moot.

18

In particular, Taco Bell’s project managers at Alianza Development International, LLC have

19 collectively personally verified that modifications were made at the following 42 stores as to door

20 opening force, queue line removal, and/or the addition of accessible indoor seating: store numbers 459,

21 1687, 2755, 2756, 2914, 2961, 3049, 3208, 3948, 4211, 4343, 4518, 4578, 4617, 4633, 4799, 5138,

22 5259, 5539, 15362, 15379, 15614, 16140, 16370, 16478, 16909, 17181, 17224, 17576, 17751, 17997,

23 18377, 18606, 18901, 19389, 19509, 19515, 19532, 20310, 20635, 21018, 21343. (Ford Supp. Decl. of

24 5/7/07 ¶¶ 9-28; Kane Supp. Decl. of 5/10/07 ¶¶ 11-36.) In addition, Taco Bell undertook to make

25 modifications at 14 additional stores that are at issue in the instant Motion: store numbers 137, 1827,

26 2297, 2861, 2933, 2971, 3046, 3083, 3136, 3473, 3904, 4284, 4311, 4356. (De Bella Supp. Decl. of

27 5/4/07 ¶¶ 7-8.)

28

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1

In particular, the door opening force was modified via new or adjusted door closers at the

2 following 52 stores subsequent to March 23, 2007, which are at issue in the instant Motion:2 store

3 numbers 137, 459 (exterior and interior), 1687 (interior), 2297, 2755 (exterior and interior), 2756

4 (exterior and interior), 2861, 2914 (exterior and interior), 2933, 2961 (interior), 2971, 3046, 3049

5 (interior), 3083, 3208 (exterior and interior), 3473, 3904, 3948 (exterior and interior), 4211 (exterior and

6 interior), 4284, 4311, 4342, 4343 (exterior), 4356, 4518 (exterior and interior), 4578 (exterior and

7 interior), 4617 (exterior and interior), 4633 (exterior and interior), 4799 (interior), 5138 (exterior and

8 interior), 5259 (exterior and interior), 5539 (exterior and interior), 15362 (exterior), 15379 (exterior and

9 interior), 15614 (exterior and interior), 16140 (interior), 16370 (interior), 16478 (interior), 16909, 17181

10 (exterior and interior), 17576 (interior), 17751 (exterior), 17797 (exterior and interior), 18377 (exterior

11 and interior), 18606 (exterior), 18901 (exterior and interior), 19389 (interior), 19509 (exterior and

12 interior), 19515 (exterior and interior), 19532 (interior), 21018 (exterior and interior), 21343 (exterior

13 and interior). (Ford Supp. Decl. ¶¶ 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26; Kane

14 Supp. Decl. ¶¶ 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 31, 32, 33, 34, 35, 36; De

15 Bella Supp. Decl. ¶ 7.)

16

In particular, the queue line was removed at the following 35 stores subsequent to March 23,

17 2007, which are at issue in the instant Motion: store numbers 1827, 2297, 2755, 2914, 2933, 3046,

18 3208, 3948, 4284, 4311, 4342, 4343, 4356, 4518, 4617, 4633, 4799, 5138, 5259, 5539, 15362, 15379,

19 16140, 16370, 16478, 16909, 16478, 16909, 17181, 17224, 17576, 17751, 18377, 19515, 19532. (Ford

20 Supp. Decl. ¶¶ 13, 16, 17, 18, 19, 20, 21, 23; Kane Supp. Decl. ¶¶ 12, 14, 16, 18, 19, 20, 21, 22, 23, 24,

21 26, 28, 29, 30, 31, 33, 34; De Bella Supp. Decl. ¶ 8.)

22

In particular, accessible indoor seating was installed in a number satisfying plaintiffs’ most

23 recent demands at the following 13 stores subsequent to March 23, 2007, which are at issue in the

24

25

26 2

Although plaintiffs complain about the exterior door opening force as requiring 10 pounds of

27

force for element 210 at store number 2007, the Special Master’s Interim Survey Report reflects a measurement of only 5 pounds of force for this element. (Docket #218, attachment #7, filed 12/14/06.)

28 Indeed, it does not appear within plaintiffs’ Meet and Confer chart as a disputed issue. Thus, plaintiffs never met and conferred as to this element at this particular store. (Hikida Supp. Decl. of 5/10/07 ¶ 2.)

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1 instant Motion: store numbers 459, 1687, 2756, 2961, 3208,3 4343, 4518, 4617, 15614, 18377, 18901,

2 20310, 20635. (Ford Supp. Decl. ¶¶ 9, 10, 11, 13, 23, 25, 28; Kane Supp. Decl. ¶¶ 13, 18, 19, 20, 25.)

3

Thus, while plaintiffs have raised issues as to either door opening force, queue lines, or

4 accessible indoor seating at 180 stores in the instant Motion, at least 137 have been modified as to the 5 elements at issue in this Motion including store number 32224 which was remodeled in 2006 so that 6 there is no issue as to any of the three issues raised in the instant Motion.5 An additional eight stores 7 have been modified as to at least one of the three issues raised in the instant Motion (if not more).6

8 Additional modifications at other stores are imminent. (Elmer Decl. ¶¶ 4, 6.)

9

(b) Taco Bell Intended to Modify the Stores That Are the Subject of This Sur-

10

Reply Literally Months Before Plaintiffs Filed The Instant Motion.

11

Given that the Court expressed concern at the recent telephonic further status conference on May

12 2, 2007 that Taco Bell may have decided to perform additional modifications to certain of its stores in

13 response to plaintiffs’ filing of their reply memorandum, Taco Bell would like to take the opportunity to

14 directly respond to the Court’s concern. Taco Bell commenced the process of comprehensively

15 modifying approximately 140 stores during the fall of 2006. (Ford Supp. Decl. ¶ 5; Kane Supp. Decl. ¶

16 6.) Notwithstanding Taco Bell’s efforts to expedite the completion of such work, the shortest timetable

17

18 3

An accessible seat shall be installed within the next two weeks at store number 3208 to

supplement the two existing accessible seats. (Ford Supp. Decl. ¶ 13.)

19 4

Store number 3222 was remodeled in 2006 as supervised by Alianza. (Ford Supp. Decl. ¶ 14;

20 Elmer Decl. ¶ 3.) The interior door closer was replaced as part of the remodel and the door opening force is now within the 7 pound tolerance proposed by plaintiffs in this Motion. (Ford Supp. Decl. ¶

21 14.)

5

Those stores are 99, 137, 283, 459, 829, 955, 1687, 1827, 1934, 2007, 2423, 2755, 2756, 2778,

22 2914, 2915, 2930, 2961, 2971, 3046, 3049, 3053, 3064, 3071, 3083, 3112, 3117, 3145, 3152, 3222,

23

3579, 3904, 3948, 4168, 4211, 4311, 4325, 4342, 4343, 4466, 4510, 4518, 4558, 4578, 4617, 4633, 4661, 4704, 4799, 4862, 4951, 5019, 5081, 5138, 5223, 5259, 5512, 5513, 5539, 5636, 5641, 9414,

24 9427, 9489, 15362, 15379, 15455, 15507, 15508, 15570, 15573, 15614, 15625, 15723, 16140, 16276, 16336, 16370, 16381, 16478, 16534, 16812, 16819, 16909, 17181, 17224, 17243, 17363, 17471, 17473,

25 17556, 17572, 17576, 17751, 17984, 17997, 18003, 18112, 18315, 18377, 18577, 18606, 18687, 18808,

18901, 19289, 19344, 19389, 19413, 19509, 19515, 19532, 19591, 19744, 19950, 20052, 20175, 20180, 26 20190, 20241, 20353, 20566, 20578, 20635, 20646, 20676, 20893, 21000, 21018, 21047, 21220, 21226,

27

21261, 21295, 21343, 21453.

6

Those stores are store numbers 2297, 2861, 2933, 3208, 3473, 4284, 4356, 9417, 20310. Store

28 number 3208 shall be further modified within two weeks via the installation of an additional interior accessible seat in addition to the two existing accessible seats. (Ford Supp. Decl. ¶ 13.)

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1 extended through May 2007. Id. This was due to the sheer volume of stores located throughout the

2 State of California that were modified. Id. Thus, the stores that were ultimately modified after March

3 23, 2007, which are the subject of the supplemental declarations of Sabrina Ford and Aaron Kane, were

4 intended to be modified literally months before plaintiffs filed the instant Motion on February 23, 2007.

5

In addition, as discussed in paragraphs 5 and 7 of Joseph De Bella’s declaration dated March 22,

6 2007, Taco Bell intended to make modifications by May 1, 2007 to door opening force and to remove

7 queue lines at 25 stores intended for remodeling in 2008. (De Bella Supp. Decl. ¶¶ 2, 3.) Thus, it

8 should come as no surprise that Taco Bell seeks to report on the successful completion of such

9 modification work, which would render any injunctive relief as to such work a nullity. Id. ¶¶ 7, 8.

10

Finally, Taco Bell has not made its intent and desire to perform modification work a secret.

11 Indeed, at the January 24, 2007 Status Conference, lead defense counsel for Taco Bell stated on the

12 record that “we’re going to go ahead and do the work.” The Court acknowledged that Taco Bell was

13 “going to go on and do the work”. (Hikida Supp. Decl. ¶ 4; 1/24/07 H’rg Tr. at 27:20-21; 28:10-11.) In

14 addition, on October 24, 2006, at Taco Bell’s invitation, plaintiffs’ counsel met with defense counsel

15 and inspected three fully modified stores in Orange County (store numbers 283, 3579, 16812) and

16 declined to visit a fourth fully modified store (or additional unmodified stores) even though the

17 opportunity to do so was available. (Hikida Supp. Decl. ¶ 5.) Thus, Taco Bell has made its position

18 transparently clear.

19

(c) Other Stores at Issue Are Either Scheduled for Modification in the

20

Remainder of 2007 or 2008 or Are Not Subject to Injunctive Relief Because

21

They Are Closed, Now Operated By a Franchisee, or Otherwise Beyond Taco

22

Bell’s Control.

23

Other stores at issue in the instant Motion are either scheduled for modification in the remainder

24 of 2007 or 2008 or are not subject to injunctive relief because they are closed, now operated by a

25 franchisee, or otherwise beyond Taco Bell’s control. The current circumstances of those other stores are

26 as follows:

27

Store number 2918 is scheduled for comprehensive ADA remediation work to take place

28 by the end of May 2007. (Elmer Decl. ¶ 4; Kane Supp. Decl. ¶ 37.)

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1

Store numbers 137, 567, 1034, 3027, 3096, 3132, 3136 are scheduled for comprehensive

2 ADA remediation work to be completed by June 2007. (Elmer Decl. ¶ 4; Kane Supp. Decl. ¶ 38.)

3

An additional 18 stores are scheduled for a 2007 remodel or replacement (store number

4 2241, 2700, 2968, 2971, 2984, 3160, 3184, 3196, 3207, 3209, 3390, 3471, 3498, 3555, 4027, 4034,

5 4054, 4622). (Elmer Decl. ¶ 5.)

6

An additional 15 stores are scheduled for a 2008 remodel or replacement (store numbers

7 1827, 2297, 2801, 2861, 2933, 2971, 3046, 3083, 3473, 3904, 4284, 4311, 4342, 4356, 9417). (Elmer

8 Decl. ¶¶ 6, 7.)

9

An additional 12 stores are currently operated by franchisees and are beyond Taco Bell’s

10 ability to control (store numbers 2910, 4192, 4204, 4355, 4586, 4611, 5570, 9407, 9454, 15319, 17529,

11 20690). (Elmer Decl. ¶ 10.)

12

An additional store, store number 20310, has exterior door and interior restroom door

13 pressure issues that are beyond Taco Bell’s control given that this particular store is a tenant of and

14 located inside the Discovery Science Center and so the exterior door opening force and restrooms are

15 common areas and the responsibility of the Discovery Science Center. (Elmer Decl. ¶ 11.)

16

An additional store was closed as of February 28, 2006 (store number 2812) and another

17 is scheduled to be closed in 2007 (store number 2848). (Elmer Decl. ¶ 9.)

18

(d) Plaintiffs’ Inference That Taco Bell’s Project Managers Surveyed the Bulk of

19

the Modifications in the Summer of 2006 Is Misleading.

20

Contrary to the inference that plaintiffs wish the Court to draw from the March 23, 2007

21 declarations of Taco Bell’s project managers, Sabrina Ford and Aaron Kane, such project managers

22 have only recently visited, inspected, and verified modifications made to the stores. (Ford Supp. Decl.

23 6; Kane Supp. Decl. ¶ 8.) Indeed, Mr. Kane was not even employed by Alianza until October 2006 and

24 began to provide project management services to Taco Bell beginning in or about November 2006.

25 (Kane Supp. Decl.¶ 5.)

26

As for plaintiffs’ assumption that the modification work was undertaken mostly in the summer of

27 2006, that assumption is also mistaken. As plaintiffs are well aware, plaintiffs’ counsel Amy Robertson

28 and Mari Mayeda visited and inspected three comprehensively modified stores on October 24, 2006

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1 (declining to visit a fourth store with defense counsel). (Hikida Supp. Decl. ¶ 5.) Following such store

2 visits by plaintiffs’ counsel, Taco Bell’s project managers began in earnest to undertake store

3 modifications of the elements at issue in this Motion. (Ford Supp. Decl. ¶ 5; Kane Supp. Decl. 6.)

4

(e) Taco Bell’s Modifications Are Not Limited to the Elements At Issue in the

5

Present Motion.

6

As plaintiffs are well aware from having visited three of the stores in October 2006 (and had an

7 opportunity to visit a fourth store, but declined), the modifications made at such stores were

8 comprehensive and were not at all limited to the few issues that are the subject of the instant Motion.

9 Thus, it is disingenuous for plaintiffs to claim that the Court should not rely upon Taco Bell’s evidence

10 of its modifications because they are “only within a universe carefully circumscribed to include only the

11 types of elements at issue in the present motion.” (Reply at 35:2-4.) The reality is that Taco Bell has

12 undertaken comprehensive modifications of both exterior and interior elements throughout

13 approximately 140 stores and is planning to modify additional stores in the immediate future. (Ford

14 Decl. ¶¶ 8-70; Ford Supp. Decl. ¶¶ 5-7, 9-28; Kane Decl. ¶¶ 5-39; Kane Supp. Decl. ¶¶ 6-38; Elmer

15 Decl. ¶¶ 3-6, 12 Ex. 2.)

16

(f) Taco Bell Has Modified Virtually All of the Disputed Elements At Issue in

17

the Instant Motion Rendering the Likelihood of Future Irreparable Injury

18

Speculative and the Instant ADA Claims for Injunctive Relief Moot.

19

Case or controversy considerations “’obviously shade into those determining whether the

20 complaint states a sound basis for equitable relief.’” Lyons, 461 U.S. at 103. Even if a complaint

21 alleges an existing case or controversy, an adequate basis for equitable relief is not necessarily

22 demonstrated. Id. at 103. The issue is not whether a damages claim meeting all Article III 23 requirements7 “has become moot but whether [the plaintiff] meets the preconditions for asserting an

24 injunctive claim in a federal forum.” Id. at 109.

25

The Supreme Court has emphasized that “past wrongs do not in themselves amount to that real

26 and immediate threat of injury necessary to make out a case or controversy.” Lyons, 461 U.S. at 103.

27 Plaintiffs’ standing to seek the injunction requested “depend[s] on whether [they] [are] likely to suffer

28
7

As addressed below, plaintiffs’ state law damages claims do not satisfy Article III requirements.

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1 future injury.” Lyons, 461 U.S. at 105 (emphasis added). “If [the plaintiff] has made no showing that he

2 is realistically threatened by a repetition of [the alleged wrongdoing], then he has not met the

3 requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive

4 structural relief or the cessation of a discrete practice.” Id. at 109 (emphasis added).

5

Plaintiffs have failed to demonstrate an irreparable injury. An irreparable injury cannot be

6 demonstrated “where there is no showing of any real or immediate threat that the plaintiff will be

7 wronged again.” Lyons, 461 U.S. at 111 (emphasis added). Notwithstanding plaintiffs’

8 characterizations, plaintiffs have made no showing of any “real” or “immediate threat” that plaintiffs

9 will be allegedly wronged again as to the three issues raised in plaintiffs’ instant Motion given the

10 extensive nature of Taco Bell’s modifications across the vast majority of the 180 stores at issue in the

11 Motion, which is the only motion before this Court. Elmer Decl. Ex. 2. The color-coded chart attached

12 to Mr. Elmer’s declaration makes it clear that Taco Bell has an asset strategy in place to address and

13 respond to each of the alleged violations not only relating to the allegations at issue in the instant

14 Motion, but also as to additional violations claimed throughout the stores. It is safe to assume that there

15 is no other corporate business that has as extensive of a comprehensive plan in place to address ADA

16 issues as does Taco Bell. Given that it would be unreasonable to assume that Taco Bell would engage

17 in such tremendous effort and incur such great expense to modify approximately 140 stores

18 comprehensively and as many as 166 stores as to the issues currently raised in the instant Motion with

19 still more planned, and continue to engage in the challenged practices at issue here, Taco Bell submits

20 that plaintiffs cannot satisfy their burden to show irreparable injury and that Taco Bell’s evidence

21 renders the injunctive relief claims in the instant Motion moot.

22

Although plaintiffs cite Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., supra,

23 for the proposition that Taco Bell has the heavy burden of persuading the court that the challenged 24 conduct cannot “reasonably” be expected to start up again, (Reply at 30, 328), the foregoing evidence

25 amply satisfies what amounts to an evidentiary presumption as clarified in Justice Scalia’s dissenting

26 opinion in that same decision. 528 U.S. at 213 (stating that the “voluntary cessation” doctrine is

27

8
28

Plaintiffs’ citation of the Syllabus (page 170 of the decision; Reply at 32:16) is improper as it

constitutes no part of the opinion of the Court.

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1 “nothing more than an evidentiary presumption that the controversy reflected by the violation of alleged

2 rights continues to exist”) (Scalia, J., dissenting). Taco Bell submits that it has amply met such

3 evidentiary presumption, and that plaintiffs’ subjective apprehensions ignore the objective reality of the

4 threat of repeated injury that is relevant to the standing and mootness inquiries. Simply put, plaintiffs’

5 subjective apprehensions are unreasonable given the current set of facts.

6

Indeed, even assuming that the Court somehow finds that the possibility of future injury is not

7 speculative enough to establish mootness, the Court should find that plaintiffs have failed to meet their

8 evidentiary burden to support standing. Scott, 306 F.3d at 656 (quoting Friends of the Earth, 528 U.S.

9 at 190 (“The plain lesson of these cases is that there are circumstances in which the prospect that a

10 defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but

11 not too speculative to overcome mootness.”)).

12

Given Taco Bell’s Herculean efforts to comprehensively modify approximately 140 stores and to

13 modify now elements at issue in the instant Motion at an additional 25 stores, this Court should not issue

14 an injunction as to the few elements at the few stores that have not been modified to date. Simply put,

15 such stores that are slated for major remodeling or replacement in either the remainder of 2007 or 2008

16 should be handled in a manner to avoid duplicative work and/or expense that will become a nullity once

17 the major remodeling or demolition and rebuilding of a store has been completed. After all, the reality

18 is that Taco Bell needs a reasonable amount of time to undertake modifications, in some instances

19 requiring local building permits which can take many months or as much as one year to obtain. (Elmer

20 Decl. ¶ 8.) In addition, major remodeling work is handled by outside contractors who must submit to a

21 competitive bidding process to ensure that only qualified contractors who perform quality work at

22 reasonable rates are ultimately selected. Thus, given that any injunctive relief would most likely require

23 a reasonable timeframe for Taco Bell to modify the remainder of its California stores, Taco Bell submits

24 that its evidentiary submission to the Court should, at minimum, suffice to create a genuine issue of

25 material fact as to Taco Bell’s mootness defense. Alternatively, the Court should grant partial summary

26 judgment in favor of Taco Bell as to the elements at the stores that have been modified.

27

(g) Plaintiffs Offer Mere Speculation or “Subjective Apprehensions” About

28

Future Injuries.

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1

“[I]njunctive relief must be used sparingly, to prevent future harm, and not to punish past

2 violations.” United States v. Barr Labs., Inc., 812 F. Supp. 458, 487-88 (D.N.J. 1993) (emphasis added)

3 (citing SEC v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980)). “Permanent injunctive relief” “is not

4 available to prevent hypothetical injuries feared as liable to occur at some indefinite time in the future.”

5 Newhouse v. Probert, 608 F. Supp. 978, 984 (W.D. Mich. 1985) (citing Connecticut v. Massachusetts,

6 282 U.S. 660, 674 (1930)).

7

An irreparable injury cannot be demonstrated “where there is no showing of any real or

8 immediate threat that the plaintiff will be wronged again.” Lyons, 461 U.S. 95 at 111 (emphasis added).

9 Notwithstanding plaintiffs’ characterizations, plaintiffs have made no showing of any “real” or

10 “immediate threat” that plaintiffs will be allegedly wronged again as to the three issues raised in

11 plaintiffs’ instant Motion. Plaintiffs merely offer speculation in the form of legal argument and not a

12 single declaration from any representative class member about the mere possibility that they might

13 suffer future injury even after Taco Bell’s recent modifications to the vast majority of its stores.

14 Plaintiffs’ expressed concern that Taco Bell will reinstall queue lines, remove accessible seating, and

15 reinstall door closers that do not maintain allegedly compliant door opening force amounts to rank

16 speculation, which does not satisfy the “irreparable injury” prerequisite of equitable relief. “It is the

17 reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s

18 subjective apprehensions.” Lyons, 461 U.S. at 107 n.8 (first emphasis in original). Thus, on this basis,

19 alone, plaintiffs’ motion should be denied. Lyons, 461 U.S. at 111.

20

Even assuming that items such as door opening force is subject to frequent change, the question

21 that plaintiffs fail to address is if Taco Bell’s door opening force maintenance policy is inadequate, then

22 what relief does plaintiffs suggest instead? Obviously, plaintiffs must have some maintenance policy in

23 mind given that door opening force is obviously subject to maintenance and adjustment of door closers

24 over time.

25

Plaintiffs’ reliance upon Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) (Henderson, J.),

26 is misplaced. In that case, the court held that it was convinced that the constitutional violations at issue

27 would not be fully redressed absent intervention by the Court because the defendants showed no

28 indication that they were committed to finding permanent solutions to “problems of serious

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1 constitutional dimension.” Id. at 1281. The court expressed concern that the “practices” may be

2 reinstated as swiftly as they were suspended. In contrast, in Moeller, the purported architectural barriers

3 at issue, which are not constitutional issues, have been removed at significant burden and expense to

4 Taco Bell. There is no evidence from which to draw the inference that Taco Bell is going to re-install

5 queue lines or non-accessible indoor seating in place of the recent modifications made to the majority of

6 company-owned facilities. In other words, unlike the situation in Madrid, injunctive relief is not

7 necessary to ensure an effective remedy in the instant action based upon Taco Bell’s voluntary actions.

8

(h) The Court Should Disregard Plaintiffs’ Transparent and Improper Attempt

9

to Bias the Court By Referring to Allegations of Taco Bell’s “Past Behavior”.

10

Plaintiffs’ reference to Taco Bell’s “past behavior,” (Reply at 34:5), is a transparent attempt to

11 bias the Court against Taco Bell that should not be countenanced by the Court. Obviously, Taco Bell

12 has engaged in expensive modifications and has no desire whatsoever to encounter yet another ADA

13 class action. Thus, the Court can and should reject such purported new facts raised in the reply for the

14 first time as irrelevant. (Fed. R. Evid. 402) (“Evidence which is not relevant is not admissible.”). Even

15 if such information was relevant (it is not), such information is not admissible because its probative

16 value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and as a

17 waste of time. (Fed. R. Evid. 403.) Indeed, the personal attack and unsubstantiated innuendo against

18 Taco Bell’s in-house counsel, Richard Deleissegues, without a shred of evidence is outrageous and

19 unseemly.

20

If the Court questions Taco Bell’s “sincerity,” then this is a credibility question that should be

21 resolved at trial. If anything, the Court should not grant plaintiffs’ motion by finding Taco Bell’s

22 credibility to be lacking on a motion for partial summary judgment without any live witnesses.

23

(i) Plaintiffs’ Criticism of Taco Bell For Not Acting Sooner, But Their Threat to

24

Assert Spoliation Arising From the Modifications Made Rings Hollow.

25

Incredibly, notwithstanding the fact that plaintiffs criticize Taco Bell for not making

26 modifications earlier, plaintiffs have the temerity to claim that Taco Bell may suffer the consequences of

27 spoliation arguments based upon such modifications. (Hikida Decl. ¶ 5.) As any experienced ADA

28 attorney ought to know, subsequent remedial measures such as the modifications sought by plaintiffs are

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1 not admissible to prove negligence or culpable conduct. (Fed. R. Evid. 407.) Plaintiffs can’t have it

2 both ways. Plaintiffs’ inference that Taco Bell acted prematurely by engaging in modifications without

3 plaintiffs’ blessing, but that such modifications apparently should have been made years ago rings

4 hollow.

5

In addition, the existence of sunk costs to the judicial system “does not license courts to retain

6 jurisdiction over cases in which one or both of the parties plainly lack a continuing interest”. Friends of

7 the Earth, 528 U.S. at 192 & n.5; Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990)

8 ([R]easonable caution is needed to be sure that mooted litigation is not pressed forward . . . solely in

9 order to obtain reimbursement of sunk costs”). “Because the requirement of a continuing case or

10 controversy derives from the Constitution, it may not be ignored when inconvenient . . . .” Friends of

11 the Earth, 528 U.S. at 213 (Scalia, J., dissenting) (internal citation omitted); United States v. Alaska S.S.

12 Co., 253 U.S. 113, 116 (1920) (moot question cannot be decided “[h]owever convenient it might be”).

13 Similarly, “courts should use caution to avoid carrying forward a moot case solely to vindicate a

14 plaintiff’s interest in recovering attorneys’ fees.” Friends of the Earth, 528 U.S. at 192 n.5. Indeed, the

15 Supreme Court has rejected the catalyst theory and an analysis as to the defendant’s subjective

16 motivations in changing its conduct in awarding attorney’s fees under the ADA’s fee-shifting provision.

17 Buckhannon Bd. and Care Home, Inc., v. West Virginia Dep’t of Health and Human Resources, 532

18 U.S. 598, 609-10 (2001).

19

(j) The Class Is Limited to California Wheelchair-Bound Patrons.

20

Obviously, the instant action is limited to California company-owned stores and the surveyed

21 stores had to have been company-owned as of May 31, 2005 in order to be part of the Special Master’s

22 store surveys. (See 10/5/04 Order at 6:24-7:4.) Thus, there is nothing nefarious about Taco Bell’s

23 commitment to providing accessibility to its mobility-impaired patrons in the instant class action, which

24 is limited to stores located geographically throughout the State of California. The class certified in the

25 instant action is limited to “[A]ll individuals with disabilities who use wheelchairs or electric scooters

26 for mobility who, at any time on or after December 17, 2001, were denied, or are currently being denied,

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

28 advantages, or accommodations of California Taco Bell corporate restaurants.” (Order of 2/23/04 at

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1 15:14-17) (emphasis added). Taco Bell submits that it is inappropriate for plaintiffs to apparently wish

2 in hindsight that they had moved for nationwide class certification. Thus, frankly, plaintiffs’ apparent

3 request for nationwide relief is irrelevant, (Fed. R. Evid. 402), and any purported facts relating to such

4 nationwide request for relief is not admissible because its probative value is substantially outweighed by

5 the danger of unfair prejudice, confusion of the issues and as a waste of time, (Fed. R. Evid. 403).

6

Plaintiffs offer mere speculation about the possibility that they might suffer future injury. Such

7 speculation, however, does not satisfy the “irreparable injury” prerequisite of equitable relief. Thus, on

8 this basis, alone, plaintiffs’ motion should be denied. Lyons, 461 U.S. at 111.

9

4. Plaintiffs Have Failed to Meet Their Burden of Demonstrating that Remedies

10

Available At Law Are Inadequate.

11

Plaintiffs have failed to demonstrate that remedies available at law, such as monetary damages,

12 are inadequate to compensate for plaintiffs’ purported injuries. Interestingly, plaintiffs have completely

13 avoided that topic in their moving papers and for good reason. Plaintiffs have affirmatively pled several

14 state law claims for damages relating to claimed injuries resulting from the same conduct at issue in

15 plaintiffs’ ADA claim. Regardless of whether the Court exercises supplemental jurisdiction over such

16 state law claims or declines to exercise such jurisdiction and dismisses such claims without prejudice for

17 re-filing in state court, it remains undisputed that the injuries plaintiffs allegedly suffered will not go

18 unrecompensed because there exists an adequate remedy at law in the form of state law claims for

19 damages.

20

5. Plaintiffs Have Failed to Address or Satisfy Their Burden of Demonstrating That

21

the Balance of Hardships Tips in Favor of Plaintiffs.

22

Plaintiffs have made no effort to address the balance of hardships in their moving papers. If

23 anything, such balance tips sharply in favor of Taco Bell, which would be burdened by a potentially

24 onerous injunction that would potentially require constant monitoring by the Court indefinitely as to

25 changes to Taco Bell’s new door opening force maintenance policy or Taco Bell’s remodeling efforts

26 affecting door opening force, queue lines, and the number of and accessibility of accessible indoor

27 seating. Federal courts are ill-equipped to serve this monitoring function. See Friends of the Earth, 528

28 U.S. at 193 (holding that an injunction “would be an excessively intrusive remedy, because it could

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1 entail continuing superintendence of the permit holder’s activities by a federal court-a process

2 burdensome to court and permit holder alike”).

3

6. Plaintiffs Have Failed to Address or Satisfy Their Burden as to Whether the Public

4

Interest Would Be Disserved By a Permanent Injunction.

5

Plaintiffs have made no attempt to address whether the public interest would be disserved by a

6 permanent injunction. Indeed, Taco Bell submits that by granting a permanent injunction in the instant

7 action, the Court would discourage other businesses sued for alleged ADA violations from voluntarily

8 modifying their facilities in hopes of rendering the injunctive relief sought moot. Indeed, the Supreme

9 Court has expressly sought to encourage voluntary changes to an ADA defendant’s conduct, “conduct

10 that may not be illegal.” Buckhannon, 532 U.S. at 608. In so doing, the public interest would ultimately

11 suffer in the form of the delayed completion of modifications providing greater accessibility to mobility-

12 impaired customers or fewer modifications altogether. Thus, while a permanent injunction might appear

13 superficially to serve the public interest, the reality is that businesses sued for Title III ADA violations

14 will think twice about voluntarily modifying their facilities if their comprehensive efforts to remediate

15 their facilities and render moot purported ADA violations are deemed to be insufficient to avoid

16 permanent injunctive relief.

17 B. Plaintiffs Confuse the Constitutional Mootness Doctrine With Whether the Court Can

18

Grant Any Effectual Relief Regarding Plaintiffs’ State Law Claims for Damages.

19

At the May 2, 2007 telephonic status conference, plaintiffs’ counsel asserted that plaintiffs’ state

20 law claims for damages were not “moot” regardless of whether injunctive relief can or should be 21 granted.9 Plaintiffs’ reference to their supplemental state law claims for damages as not “moot”

22 confuses the mootness doctrine raised by Taco Bell, which is based upon the case or controversy

23 requirement of Article III, section 2 of the U.S. Constitution. ACLU of Nevada v. Lomax, 471 F.3d

24 1010, 1016 (9th Cir. 2006). Taco Bell is raising the mootness doctrine within its constitutional context.

25 Plaintiffs cannot seriously argue that their supplemental state law claims, which do not provide a basis

26 for the Court’s exercise of its original jurisdiction, ought to be considered in determining whether the

27 9

Needless to say, Taco Bell’s modifications render plaintiffs’ Title 24 claims for injunctive relief

28 moot as well. Thus, plaintiffs’ contention that Taco Bell’s position is that it does not have to bring any of the challenged elements into compliance with Title 24 is simply wrong.

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1 case or controversy requirement of Article III has been met. Indeed, the Ninth Circuit has expressly

2 stated “the rule that supplemental jurisdiction cannot exist without original jurisdiction.” Herman

3 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001) (“supplemental jurisdiction

4 may only be invoked when the district court has a hook of original jurisdiction on which to hang it”).

5 Thus, if this Court determines that it lacks subject matter jurisdiction to entertain plaintiffs’ ADA claims

6 relating to the three issues raised in the instant Motion, then the Court has no discretion to retain

7 supplemental jurisdiction over plaintiffs’ state law claims especially those claims relating to the same

8 issues. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002).

9 C. Plaintiffs Ignore the “Fairness” and “Comity” Values in Addressing the Exercise of

10

Supplemental Jurisdiction.

11

Plaintiffs’ reliance upon Executive Software North America, Inc. v. United States District Court

12 for the Central District of California, 24 F.3d 1545 (9th Cir. 1994), is misplaced especially given that, if

13 anything, that decision supports Taco Bell’s position. In that case, the Ninth Circuit stated that “whether

14 pendent jurisdiction should be exercised in a given circumstance should be exercised in a given

15 circumstance depended on the district court assessing whether doing so ‘would most sensibly

16 accommodate’ the values of ‘economy, convenience, fairness, and comity.” 24 F.3d at 1554 (emphasis

17 added). Plaintiffs’ Reply, however, neglects to mention the statutory factors that Congress intended

18 courts to consider in declining jurisdiction. Section 1367(c) provides four categories in which a court

19 can decline to exercise supplemental jurisdiction. Those include whether “the claim raises a novel or

20 complex issue of State law” or whether “the claim substantially predominates over the claim or claims

21 over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(1)-(2). Significantly, the

22 Ninth Circuit noted, “The § 1367(c)(1)-(3) categories are instead best characterized as describing

23 circumstances that ordinarily present ‘compelling’ reasons in and of themselves for remanding pendent

24 claims.” Id. at 1557 n.9 (emphasis added). In United Mine Workers of America v. Gibbs, 383 U.S. 715

25 (1966), the Supreme Court provided, “Similarly, if it appears that the state issues substantially

26 predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of

27 the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state

28 tribunals.” Id. at 726-27 (emphasis added). Significantly, the Gibbs Court cautioned, “Needless

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1 decisions of state law should be avoided both as a matter of comity and to promote justice between the

2 parties, by procuring for them a surer-footed reading of applicable law.” Id. at 726 (emphasis added).

3

The Ninth Circuit also cited the Supreme Court decision in Carnegie-Mellon Univ. v. Cohill, 484

4 U.S. 343 (1988), for the following proposition, “Under Gibbs, a federal court should consider and weigh

5 in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness,

6 and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving

7 pendent state-law claims.” Id. at 350 (emphasis added), quoted in Executive Software, 24 F.3d at 1552.

8 Thus, a federal district court’s consideration of whether to exercise supplemental jurisdiction is a

9 continuing inquiry that remains open throughout every stage in a case.

10

Plaintiffs’ analysis in footnote 8 is flawed because they completely ignore the value of comity

11 that is part of the balance of factors that either point against or in favor of retaining jurisdiction. In

12 addition, plaintiffs’ analysis ignores the value of fairness insofar as there is no analysis as to the value

13 “to promote justice between the parties, by procuring for them a surer-footed reading of applicable

14 law.” Gibbs, 383 U.S. at 726 (emphasis added), quoted in Executive Software, 24 F.3d at 1552. Indeed,

15 whether a claim raises a novel or complex issue of state law or whether a state law claim substantially

16 predominates over a federal claim over which a district court has original jurisdiction are in and of

17 themselves compelling reasons to remand pendent state law claims. Executive Software, 24 F.3d at

18 1557 n.9.

19

The fact that California access regulations will affect the proof required at trial and the scope of

20 the issues raised has effectively been conceded by plaintiffs. In attempting to persuade the Court to

21 entertain plaintiffs’ motion for partial summary judgment, plaintiffs admitted that whether the California

22 access regulations are applicable in this case “will have a significant effect on the amount and type of

23 discovery necessary to try the case.” (Hikida Supp. Decl. ¶ 3; Joint Case Management Statement filed

24 1/19/07 at 4, ¶ 6) (emphasis added). Thus, whether California access regulations are applicable in this

25 case will have a significant impact as to the facts at issue going forward, which demonstrates that state

26 issues substantially predominate. Gibbs, 383 U.S. at 726-27.

27

Thus, if plaintiffs continue to rely upon non-ADA standards and claims for relief forcing this

28 Court to engage in “needless decisions of state law” that the Supreme Court has admonished federal

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1 courts to avoid both as a matter of comity and to promote justice between the parties by procuring for

2 them a surer-footed reading of applicable law, Gibbs, 383 U.S. at 726, then the underlying Gibbs values

3 and the concerns about addressing novel or complex issues of state law codified by the supplemental 4 jurisdiction statute are best served by declining jurisdiction in this particular case.10

5

Plaintiffs contend that there would be “significant inefficiencies” based upon the position

6 attributed to Taco Bell that “federal courts addressing ADA claims should not enforce state access

7 statutes.” (Reply at 6:4.) Plaintiffs fail to address the Ninth Circuit’s concern about the expansion of

8 federal subject matter jurisdiction to address state law claims that clearly contradict the relief intended to

9 be provided by Congress. In Wander v. Kaus, 304 F.3d 856 (9th Cir. 2002), the Ninth Circuit stated,

10 “We hold today that there is no federal-question jurisdiction over a lawsuit for damages brought under

11 California’s Disabled Person’s Act, even though the California statute makes a violation of the federal

12 Americans with Disabilities Act a violation of state law. Congress intended that there be no federal

13 cause of action for damages for a violation of Title III of the ADA. To exercise federal-question

14 jurisdiction in these circumstances would circumvent the intent of Congress.” Id. at 857. In support, the

15 Ninth Circuit cited Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128

16 (E.D. Cal. 2002) (Shubb, J.), a published district court decision for the proposition that the question of

17 damages under California state law would necessarily involve issues outside of the scope of Title III of

18 the ADA. 304 F.3d at 860. For example, in Pickern, the district court explained, “Thus, the question of

19 damages becomes the tail that wags the dog of the ADA issues.” Wander, 304 F.3d at 860 (quoting

20 Pickern, 194 F. Supp. 2d at 1132) (emphasis added).

21 DATED: May 10, 2007

GREENBERG TRAURIG, LLP

22

By /S/ ___________________

Richard H. Hikida

23

Attorneys for Defendant TACO BELL CORP.

24

25 10 Taco Bell requests an opportunity to further brief the import of Wilson v. Haria and Gogri, 2007

WL 851744 (E.D. Cal. Mar. 22, 2007), which purports to cite as legislative history a letter from an 26 advisor to the California Chamber of Commerce to the bill’s author. Id. at *8. The statements of a

27

representative of a special interest group are “ordinarily an unreliable indication of the purpose of a statute.” Norman J. Singer, Sutherland Statutes and Statutory Construction § 48:11 (6th ed. updated

28 Oct. 2006).

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1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 RICHARD H. HIKIDA (SBN 196149) 3161 Michelson Drive, Suite 1000
3 Irvine, California 92612 Telephone: (949) 732-6500
4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com; hikidar@gtlaw.com 5

6
UNITED STATES DISTRICT COURT 7
NORTHERN DISTRICT OF CALIFORNIA 8
SAN FRANCISCO DIVISION 9

10 FRANCIE E. MOELLER, et al.,

Case No. C 02 5849 MJJ ADR

11

Plaintiffs,

12 vs.

13 TACO BELL CORP.,

14

Defendant.

15

DEFENDANT TACO BELL CORP.’S NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF AUGUST 8, 2007 ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
[Declarations of Steve Elmer and Richard H. Hikida filed concurrently herewith]

16

DATE:

n/a [submitted]

TIME:

n/a [submitted]

17

CTRM:

11

JUDGE: Hon. Martin J. Jenkins

18

19

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

20 PLEASE TAKE NOTICE that defendant Taco Bell Corp. hereby moves for reconsideration of

21 the Court’s August 8, 2007 order granting in part plaintiffs’ motion for partial summary judgment

22 [docket #307]. Taco Bell submits that as addressed below, it has satisfied at least one of the three

23 disjunctive requirements set forth in Local Rule 7-9(b). Upon the completion of the briefing schedule,

24 the matter shall be submitted as ordered by the Court.

25 GREENBERG TRAURIG, LLP

26

Dated: September 21, 2007 27

By: /s/ RICHARD H. HIKIDA

28

Attorneys for Defendant TACO BELL CORP.

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1

TABLE OF CONTENTS

2

3 I. ARGUMENT ......................................................................................................................................... 1

A. The Court Failed to Consider Admissible Evidence of Numerous Additional

4

Modifications in Existence Prior to the Hearing on the Motion..................................................... 1

5

B. Additional Modifications Have Taken Place Subsequent to the Hearing on

Plaintiffs’ Motion............................................................................................................................ 5

6

C. The Court Failed to Consider Evidence that Many Stores Are Beyond Taco Bell’s Control... 6

7

D. The Court Failed to Consider a Post-Hearing Decision Entitled Sharp v. Rosa Mexicano,

8

D.C., LLC, Which Is Squarely Relevant to the Mootness Defense ................................................ 6

E. The Court Failed to Consider the Significance of Taco Bell’s Door Opening Force

9

Maintenance Policy......................................................................................................................... 7

10

F. The Court Should Not Have Exercised Its Discretion to Treat Prior Defense Counsel’s

Statement in a Brief as a Judicial Admission.................................................................................. 8

11

G. The Court Failed to Consider the Novel Question of Whether the Readily Achievable

12

Analysis Is Equally Applicable Under State Law Accessibility Claims ...................................... 14

13

H. Subsequent Case Authority Confirms that the Issuance of Certificates of Occupancy Is Prima Facie Evidence of Compliance with Accessibility Requirements and Provides an Equitable Bar

14

to Liability..................................................................................................................................... 15

15

I. The Court Failed to Consider Material Facts and Taco Bell’s Legal Arguments As to Why the Court Should Not Exercise Supplemental Jurisdiction................................................................. 15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1 Federal Cases
2

3

American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1998) .......................................................................................................... 9

4 Antoninetti v. Chipotle Mexican Grill, Inc.,
5 No. 05CV1660 J (WMc), slip op. at 19:7-8, 19:11-13 (S.D. Cal. June 14, 2007)............................... 15

6 Bass v. County of Butte, 7 458 F.3d 978 (9th Cir. 2006) .......................................................................................................... 14, 15
8 Deck v. American Hawaii Cruises, Inc., 121 F. Supp. 2d 1292, 1297 .................................................................................................................. 13
9 Eiden v. Home Depot USA, Inc.,
10 No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418, at *12 (E.D. Cal. May 26, 2006) ........................ 7
11 Foley v. City of Lafayette, Ind., 12 359 F.3d 925 (7th Cir. 2004) ...................................................................................................... 8, 10, 11

13 Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) ................................................................................... 7
14
15 Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 774 (D. Or. 1997) ...................................................................................................... 7
16 Kolari v. New York-Presbyterian Hospital,
17 455 F.3d 118, 123 (2d Cir. 2006) ......................................................................................................... 15
18 Lonberg v. Sanborn Theaters Inc., 19 259 F.3d 1029, 1036 (9th Cir. 2001) ...................................................................................................... 6

20 Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL 1910925, at *3 (N.D. Cal. Aug. 10, 2005) ............................................ 5
21

22

Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1068-69 (5th Cir. 1995) ................................................................................................... 6

23 Presta v. Peninsula Corridor Joint Powers Bd.,
24 16 F. Supp. 2d 1134, 1135-36 (N.D. Cal. 1998)................................................................................... 14

25 Roberts v. Royal Atlantic Corp., 26 445 F. Supp. 2d 239, 246 (E.D.N.Y. 2006) ............................................................................................ 6
27 Sanford v. Del Taco, Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006) ........................................ 14
28
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1

Sharp v. Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB), 2007 WL 2137301, at *4 (D.D.C. July 26, 2007)........................................ 6, 7, 12

2 Sicor Ltd. v. Cetus Corp.,
3 51 F.3d 848, 859-60 (9th Cir. 1995) ..................................................................................................... 14

4 United States v. Michel, 5 446 F.3d 1122, 1128 (10th Cir. 2006) .................................................................................................. 10

6 7 California Cases
8 Donald v. Café Royale, 218 Cal. App. 3d 168 (Cal. Ct. App. 1990) .......................................................................................... 10
9

10 11 Federal Rules
12 Fed. R. Evid. 403 ...................................................................................................................................... 10

13

14 California Statues

15 CDPA.................................................................................................................................................. 14, 15
16 Unruh Act............................................................................................................................................ 14, 15
17

18 Federal Regulations
19 28 C.F.R. § 36.211(b) ........................................................................................................................... 8, 10
20

21 California Regulations
22
Title 24 of the California Code of Regulations......................................................................................... 14 23

24

25

26

27

28
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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. ARGUMENT

3 A. The Court Failed to Consider Admissible Evidence of Numerous Additional Modifications

4

in Existence Prior to the Hearing on the Motion.

5

The Court stated on page 12 of its August 8, 2007 Order that “a review of the undisputed factual

6 record demonstrates that a number of Defendant’s restaurants continue to have architectural elements

7 that remain non-ADA compliant.” (8/8/07 Order at 12:2-3 [docket #307]) (emphasis added). Given that

8 plaintiffs’ Motion was limited to a very narrow list of architectural elements addressed in Exhibits 1-8 of

9 the Fox Declaration dated February 23, 2007, Taco Bell presumes that the Court was referring solely to

10 the specific elements at issue in plaintiffs’ Motion, namely, exterior door opening force, interior door

11 opening force, queue lines, and accessible indoor seating.

12

The Court’s order misstates the undisputed factual record with respect to exactly how many of

13 the elements raised in plaintiffs’ Motion have already been modified by Taco Bell. In particular, the

14 Court’s citations on page 10 of the Order are literally a verbatim copy of the citations contained on page

15 2 of Taco Bell’s March 23, 2007 opposition. Such information excludes the subsequent information

16 provided via Taco Bell’s May 10, 2007 sur-reply and supporting documentation, which was expressly

17 for the purpose of providing the Court with supplemental information as to additional modifications at

18 stores not addressed in Taco Bell’s opposition papers because such modifications either did not exist

19 and/or could not be documented firsthand in time via sworn declarations in order to be included within

20 Taco Bell’s opposition due on March 23. (Tr. of 5/2/07 H’rg at 11:17-12:5; 18:19-23 [docket #309].)

21

As explained during the May 2, 2007 telephonic conference, a sur-reply was warranted to

22 address the changed circumstances affecting Taco Bell’s mootness defense,1 namely, the fact that Taco

23

1
24

Although plaintiffs claimed at the May 2, 2007 telephonic status conference that they had “no

idea” that Taco Bell intended to rely upon the mootness doctrine in opposition to plaintiffs’ Motion, (Tr.

25 of H’rg of 5/2/07 at 17:5-6), such assertion is difficult to fathom given that plaintiffs’ counsel inspected

three comprehensively modified stores (283, 3579, 16812) on October 24, 2006, and were provided with 26 an opportunity to inspect a fourth comprehensively modified store (21000) that same day, but declined.

27

(R. Hikida Decl. of 5/10/07 ¶ 5 [docket #284]; R. Hikida Decl. of 9/21/07 ¶ 2.) Each of the foregoing stores would later be subject to their Motion. Under these circumstances, plaintiffs were obligated to

28 address the mootness doctrine within their initial moving papers in order to satisfy their initial burden of demonstrating the absence of any genuine issue of material fact, but failed to do so.

1

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1 Bell’s project managers were in the process of inspecting firsthand recent modification work at

2 numerous stores, which work was either incomplete or unverified as of the due date for Taco Bell’s

3 opposition papers. (Tr. of 5/2/07 H’rg at 11:17-12:5; 18:19-23.) As Taco Bell explained, Taco Bell

4 took very seriously the requirement that declarations averring to such modifications be made under

5 penalty of perjury, which is why such modifications needed to be personally verified by the project

6 managers in charge of such modifications. (Tr. of 5/2/07 H’rg at 18:19-23) (noting that declarations

7 needed to be carefully reviewed by the declarants so that they were “100 percent accurate”). The Court

8 responded by granting leave to file a sur-reply by May 10, 2007, (Order of 5/4/07 [docket #279]), which

9 is precisely what Taco Bell did, with supporting declarations demonstrating that numerous additional

10 modifications had been made. (S. Ford Supp. Decl. of 5/10/07 ¶¶ 5-28 [docket #283]; A. Kane Supp.

11 Decl. of 5/10/07 ¶¶ 6-38 [docket #285]; J. De Bella Decl. of 5/10/07 ¶¶ 7-8 [docket #282].)

12

In addition, the Court’s Order does not address the percentage of specific modifications made by

13 Taco Bell of the overall total number of modifications to exterior doors, interior doors, queue lines, and

14 indoor seating requested by plaintiffs. Thus, for example, the Order ignores the fact that:

15

(1) Of the 180 stores specifically called out in plaintiffs’ Motion,2 11 stores are currently

16 operated by franchisees (i.e., store numbers 2910, 4192, 4204, 4355, 4586, 4611, 5570, 9407, 9454,

17 17529, 20690) and are therefore beyond Taco Bell’s ability to control, 1 store is a tenant of the

18 Discovery Science Center (store number 20310) and so Taco Bell lacks control over exterior and 19 interior door opening force and restrooms at issue, which are located in common areas,3 1 store has

20 already closed (i.e., 2812) and 1 store’s closure in 2007 is imminent (i.e., 2848);

21

(2) Of the remaining 166 stores specifically called out in plaintiffs’ Motion that are within Taco

22 Bell’s control, as conceded by plaintiffs, (Hikida decl. of 9/21/07 ¶ 4), plaintiffs failed to cite correctly

23

24 2

For the Court’s convenience, Table 1 in the concurrently-filed Hikida declaration contains a

25 global chart of the 180 stores depicting their current status. (Hikida decl. of 9/21/07 ¶ 8.)

3

In the declaration of Steve Elmer filed on May 10, 2007 [docket #281], Mr. Elmer explained that

26 exterior door and interior restroom door pressure issues at store number 20310 are beyond Taco Bell’s

27

control given that this particular store is a tenant of and located inside the Discovery Science Center and so the exterior door opening force and restrooms are located in common areas and the responsibility of

28 the Discovery Science Center. (S. Elmer Decl. of 5/10/07 ¶ 11.) Mr. Elmer’s declaration attached the relevant portion of the lease agreement as Exhibit 1 to his declaration.

2

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1 the Special Master’s measurement of exterior door opening force (element 210) at 1 store4 (store

2 number 2007, which is currently renumbered as store number 21455);

3

(3) Of the remaining 165 stores specifically called out in plaintiffs’ Motion that are within Taco

4 Bell’s control and that are free of the above-mentioned error, Taco Bell has made physical modifications

5 at a cost of over $6 million at 147 of such stores to date, (Elmer decl. of 9/14/07 ¶ 3) which is

6 equivalent to 89%, and Taco Bell has concrete plans to comprehensively modify the 18 remaining

7 stores;

8

(4) Of the 111 stores over which Taco Bell had control at the time of filing of plaintiffs’ motion

9 as reflected by Exhibit 5 of the Tim Fox declaration of February 23, 2007 [docket #256-6], Taco Bell

10 has made exterior door opening force modifications at 100 of such stores to date, which is equivalent to 11 90%;5

12

(5) Of the 128 stores over which Taco Bell had control at the time of filing of plaintiffs’ motion

13 as reflected by combining Exhibits 3 and 4 of the Fox declaration of February 23, 2007 [docket #256-4

14 and #256-5], Taco Bell has made interior door opening force modifications at 115 of such stores to date, 15 which is equivalent to 90%;6

16 4

Although plaintiffs made a similar error regarding element 210 at store number 2778, (Hikida

17 decl. of 9/21/07 ¶ 5), a significant distinction exists between the two stores warranting their different treatment. Unlike store number 2007 in which plaintiffs only asserted the erroneous exterior door

18 opening force issue within their motion (i.e., no issue was raised as to interior door opening force, queue

lines, or indoor seating), at store number 2778, plaintiffs raised additional issues as to interior door

19 opening force at the women’s restroom and the queue lines, both of which Taco Bell modified.

5
20

Of the 127 stores specifically called out in Exhibit 5 to Tim Fox’s declaration filed on February

23, 2007 as to exterior door opening force, 11 of the stores were operated by franchisees (store numbers

21 2910, 4192, 4355, 4586, 4611, 5570, 9407, 9454, 15319, 17529, 20690) and beyond Taco Bell’s ability

to control as of the filing of plaintiffs’ motion, and two of the stores (store numbers 2812 and 2848) are

22 either closed or shall close by the end of 2007. In addition, one store, store number 20310, concerned

23

common areas beyond Taco Bell’s ability to control, and two stores (store numbers 2007 and 2778) concerned allegations that were clearly erroneous. Of the remaining 111 stores, Taco Bell has modified

24 100 stores, which is equivalent to 90%, and the 11 remaining stores (store numbers 2241, 2700, 2984, 3160, 3184, 3207, 3208, 3555, 4027, 4034, 4622) are currently scheduled to be modified in 2008 or

25 shortly thereafter.

Curiously, although plaintiffs proffered detailed analyses as to interior door opening force, 26 indoor seating, and queue lines, (A. Robertson Decl. of 4/13/07 ¶¶ 11, 14, 17 [docket #272]), plaintiffs

27

failed to set forth a similar analysis within Amy Robertson’s April 13, 2007 declaration as to exterior door opening force.

6
28

Of the 79 stores specifically called out in Exhibit 3 to Tim Fox’s declaration filed on February

23, 2007 as to interior door opening force, 6 of the stores were operated by franchisees (store numbers

3

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1

(6) Of the 49 stores over which Taco Bell had control at the time of filing of plaintiffs’ motion as

2 reflected by combining Exhibits 6, 7 and 8 of the Fox declaration of February 23, 2007 [docket #256-7,

3 #256-8 and #256-9], Taco Bell has made indoor seating modifications at 40 stores, which is equivalent 4 to 82%;7

5

(7) Of the 66 stores over which Taco Bell had control at the time of filing of plaintiffs’ motion as

6 reflected by combining Exhibits 1 and 2 of the Fox declaration of February 23, 2007 [docket #256-2 and 7 #256-3], Taco Bell has made queue line modifications at 62 stores, which is equivalent to 94%;8 and

8

9 5570, 9407, 9454, 15319, 17529, and 20690) and beyond Taco Bell’s ability to control as of the filing of

10 plaintiffs’ motion, and one of the stores (store number 20310) involved common areas that were beyond

Taco Bell’s ability to control. Of the remaining 72 stores, Taco Bell has modified 72 stores, which is 11 equivalent to 100%.

12

Of the 62 stores specifically called out in Exhibit 4 to Tim Fox’s declaration filed on February 23, 2007 as to interior door opening force, 5 of the stores were operated by franchisees (store numbers

13 2910, 4204, 4355, 4586, 4611) and beyond Taco Bell’s ability to control as of the filing of plaintiffs’ motion, and one of the stores (store number 2848) shall close by the end of 2007. Of the remaining 56

14 stores, Taco Bell has modified 43 stores, which is equivalent to 77%, and the 13 remaining stores (store

numbers 2700, 2968, 3184, 3196, 3209, 3390, 3471, 3498, 3555, 4027, 4034, 4054, 4622) are currently

15 scheduled to be modified in 2008 or shortly thereafter.

16

7

Of the 24 stores specifically called out in Exhibit 7 to Tim Fox’s declaration filed on February

23, 2007 as to indoor seating, one of the stores was operated by a franchisee (store numbers 15319) and

17 beyond Taco Bell’s ability to control as of the filing of plaintiffs’ motion. Of the remaining 23 stores, Taco Bell has modified 23 stores, which is equivalent to 100%.

18

Of the 30 stores (not counting store number 15614 to avoid double counting that store, which

also appears in Exhibit 7) specifically called out in Exhibit 8 to Tim Fox’s declaration filed on February 19 23, 2007 as to indoor seating, four of the stores were operated by franchisees (store numbers 2910,

20

4355, 4586, 4611) and beyond Taco Bell’s ability to control as of the filing of plaintiffs’ motion. Of the remaining 26 stores, Taco Bell has modified 20 stores, which is equivalent to 77%, and the six

21 remaining stores (store numbers 2700, 2933, 3471, 3473, 4284, 4622) are currently scheduled to be

modified in 2008 or shortly thereafter.

22 8

Of the 40 stores specifically called out in Exhibit 1 to Tim Fox’s declaration filed on February

23

23, 2007 as to queue lines, four of the stores were operated by franchisees (store numbers 2910, 4355, 4586, 4611) and beyond Taco Bell’s ability to control as of the filing of plaintiffs’ motion, and two of

24 the stores (store numbers 2812, 2848) are either closed or shall close by the end of 2007. Of the remaining 34 stores, Taco Bell has modified 30 stores, which is equivalent to 88%, and the four

25 remaining stores (store numbers 2968, 3184, 3471, 4054) are currently scheduled to be modified in early

2008.

26

Of the 37 stores specifically called out in Exhibit 2 to Tim Fox’s declaration filed on February

27

23, 2007 as to queue lines, five of the stores were operated by franchisees (store numbers 5570, 9407, 9454, 15319, 17529) and beyond Taco Bell’s ability to control as of the filing of plaintiffs’ motion, and

28 of remaining 32 stores, Taco Bell made physical modifications at 32 stores to date, which is equivalent to 100%.

4

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1

(8) Taco Bell has also made extra modifications regarding queue lines, door opening force,

2 and/or indoor seating that were not even requested by plaintiffs at a total of 120 stores including at 27

3 stores that plaintiffs did not even address within their Motion (store numbers 18, 124, 158, 176, 567,

4 757, 991, 1034, 1496, 3007, 3055, 3070, 3077, 3078, 3079, 3089, 3119, 3125, 3130, 3132, 3137, 3398,

5 16520, 17435, 19298, 19498, 20204).

6

Thus, by apparently not considering at all the lengthy declarations submitted with Taco Bell’s

7 sur-reply filed on May 10, 2007, the Court considered a materially incomplete portion of the factual

8 record in this case, which presumably affected the outcome of Taco Bell’s mootness defense. It is a far

9 cry between the 50%-65% percentages cited by plaintiffs in Amy Robertson’s declaration, (A.

10 Robertson Decl. of 4/13/07 ¶¶ 11, 14, 17 [docket #272]), and the 100% percentage, addressed above,

11 that Taco Bell has demonstrated to date with respect to the stores genuinely at issue in Exhibits 2, 3, 6, 7

12 to the Fox declaration of February 23, 2007.

13

This Court has already expressed its unwillingness to provide an advisory opinion as to

14 hypothetical issues in the absence of a live case or controversy. “Federal courts do not ‘sit to decide

15 hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties

16 before [them].’” Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL 1910925, at *3 (N.D. Cal.

17 Aug. 10, 2005) (Jenkins, J.) (quotation omitted)). “To proceed in the absence of a case or controversy

18 would involve the Court in rendering a forbidden advisory opinion.” Id. at *3 (citation omitted).

19 B. Additional Modifications Have Taken Place Subsequent to the Hearing on Plaintiffs’

20

Motion.

21

As Taco Bell alluded to in its sur-reply papers filed on May 10, 2007, additional modifications

22 have taken place at several stores subsequent to the May 17, 2007 hearing date. For example, additional

23 modifications have taken place at store numbers 3136, 9417, 18901. In particular, a new door closer at

24 the women’s restroom was installed at store number 3136. In addition, store number 9417 was

25 demolished beginning on July 5, 2007, and is projected to reopen in October 2007 with new indoor

26 seating. New door closers have been installed at the men’s restroom and women’s restroom at store

27 number 18901. The circumstances of such modifications, which occurred before the issuance of the

28

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1 August 8, 2007 order, was not known to defense counsel until after the May 17, 2007 hearing on

2 plaintiffs’ Motion. (Hikida decl. of 9/21/07 ¶ 7.)

3 C. The Court Failed to Consider Evidence that Many Stores Are Beyond Taco Bell’s Control.

4

As mentioned above, although Taco Bell specified in its May 10, 2007 court papers exactly

5 which stores addressed in plaintiffs’ Motion were currently operated by franchisees and, therefore,

6 beyond Taco Bell’s ability to control, Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1068-69 (5th

7 Cir. 1995) (Garza, J.) (holding that a restaurant franchisor did not “operate” franchised restaurants), cert.

8 denied, 516 U.S. 1045 (1996), and which stores were currently closed, and which store lacks control

9 over common areas, the Court’s August 8, 2007 decision makes no such reference to such stores.

10

Needless to say, injunctive relief as to stores that are beyond Taco Bell’s ability to control is a

11 nullity. Roberts v. Royal Atlantic Corp., 445 F. Supp. 2d 239, 246 (E.D.N.Y. 2006) (Wexler, J.) (noting

12 that construction of a switch back ramp to a private resort involved the use of public property, which

13 proposal was flawed). As recognized by the Ninth Circuit, “after the noncompliant building has already

14 been built, . . . injunctive relief is only meaningful against the person currently in control of the

15 building.” Lonberg v. Sanborn Theaters Inc., 259 F.3d 1029, 1036 (9th Cir. 2001) (emphasis added).

16 D. The Court Failed to Consider a Post-Hearing Decision Entitled Sharp v. Rosa Mexicano,

17

D.C., LLC, Which Is Squarely Relevant to the Mootness Defense.

18

In Sharp v. Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB), 2007 WL 2137301, at *4 (D.D.C.

19 July 26, 2007) (Bates, J.), the district court held as a matter of law that structural modifications at a

20 restaurant rendered ADA issues moot because they could not “reasonably” be expected to recur. Id.

21

In Sharp, the plaintiff brought an ADA action alleging an inaccessible wash basin fixture in the

22 men’s restroom at the restaurant at issue. The three barriers at issue related to a bar under the washstand

23 preventing a wheelchair from rolling underneath, the height of the washbasin, and noncompliant

24 hardware on the faucet apparatus. Id. at *1. The defendant submitted evidence showing that the men’s

25 restroom included a private stall that was accessible to the disabled and free of the alleged barriers. The

26 district court dismissed the case based on mootness grounds.

27

The district court initially addressed the legal standard for applying the mootness doctrine. “The

28 subject matter jurisdiction of the Court is constitutionally limited, and the Court has an obligation under

6
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1 these constitutional limits to address its jurisdiction to hear a case, raising the issue sua sponte if

2 necessary.” Id. at *3 (emphasis added). “A case is moot when ‘events have so transpired that the

3 decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of

4 affecting them in the future.” Id. at *3. “Mootness deprives the Court of its ability to take remedial

5 action because ‘there is nothing for [the court] to remedy, even if [it] were inclined to do so.’” Id. at *3

6 (emphasis added).

7

The district court then explicitly examined the “voluntary cessation” exception to the mootness

8 doctrine and concluded, nevertheless, that the alleged unlawful conduct could not reasonably be

9 expected to recur because the accessible sink-equipment at issue was a “fixture” within the restaurant.

10 Id. at *4. Quoting from one federal district court decision within the Ninth Circuit and citing another,

11 the district court held, “The alleged discrimination cannot reasonably be expected to recur because

12 ‘structural modifications . . . are unlikely to be altered in the future.’” Id. at *4 (quoting Indep. Living

13 Resources v. Oregon Arena Corp., 982 F. Supp. 698, 774 (D. Or. 1997)); Grove v. De La Cruz, 407 F.

14 Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (Snyder, J.) (holding that installation of grab bars by

15 restaurant rendered moot plaintiff’s ADA complaint requesting installation of such bars, finding no basis

16 to conclude the challenged conduct would be repeated).

17

Significantly, all three of the issues raised in plaintiffs’ Motion relate to items that are built into

18 the restaurants at issue and thereby constitute “fixtures”, i.e., door closers and doors, queue lines, and

19 dining room tables. Indeed, by definition, an object that is moveable such as a dining room table that is

20 not built-in is not governed by the ADAAG. “Neither the ADA nor the ADAAG addresses movable

21 objects.” Eiden v. Home Depot USA, Inc., No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418, at *12

22 (E.D. Cal. May 26, 2006) (Karlton, J.).

23

Although Taco Bell notified the Court as to the Sharp decision on August 1, 2007, Notice of

24 Supp. Auth. of 8/1/07 at 1:5-2:8 Ex. 1 [docket #303], prior to the Court’s August 8, 2007 ruling, it is

25 unclear whether the Court considered such decision prior to ruling on plaintiffs’ Motion. Thus, Taco

26 Bell submits that the Court should consider the Sharp decision and its effect upon the mootness defense.

27 E. The Court Failed to Consider the Significance of Taco Bell’s Door Opening Force

28

Maintenance Policy.

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1

Accessibility elements may need repair or replacement over time due to vandalism, improper

2 customer usage, or other problems that Taco Bell did not affirmatively create.

3

Although Taco Bell proffered evidence of its door opening force maintenance policy to the Court

4 via paragraphs 2 and 3 of the declaration of Michael Harkins filed on March 23, 2007 [docket #263], the

5 Court failed to recognize its evidentiary value or significance. In Foley v. City of Lafayette, Ind., 359

6 F.3d 925 (7th Cir. 2004) (Kanne, J.), the Seventh Circuit relied upon a similar long-term service contract

7 with an elevator repair company as the basis for implicitly finding that any future interruptions in access

8 by the mobility-impaired patrons of the train service would be temporary or isolated. Id. at 929-30. The

9 fact that an item does not provide equal access due to maintenance or repairs has been expressly

10 recognized by a regulation implemented by the U.S. Department of Justice as not an accessibility

11 violation. 28 C.F.R. § 36.211(b); Foley, 359 F.3d at 931 (holding that an inoperable elevator and snow-

12 covered ramp did not create a viable ADA claim because they were temporary or isolated and occurred

13 during unusual circumstances, namely, heavy snowfall). Indeed, plaintiffs did not make any objections

14 to Taco Bell’s evidence of such policy or criticize it as somehow inadequate or less than what they

15 would request as a form of injunctive relief. Plaintiffs’ silence is telling.

16

Thus, to the extent that the Court has determined that Taco Bell is incapable of voluntarily

17 complying with accessibility standards going forward as to door opening force on a long-term,

18 permanent basis, such determination is improper as a matter of law. As a matter of law, any such

19 temporary or isolated interruptions in equal access do not violate either the ADA or state law.

20 F. The Court Should Not Have Exercised Its Discretion to Treat Prior Defense Counsel’s

21

Statement in a Brief as a Judicial Admission.

22

Instead of pointing to a factual statement in Taco Bell’s answer or in a pretrial order (there has

23 been no pretrial order to date), this Court appears on page 12, lines 7-11, of its Order to have

24 characterized a statement in Taco Bell’s brief authored by prior defense counsel several years ago as a

25 binding judicial admission notwithstanding that plaintiffs never even argued the existence of a binding

26 judicial admission in their moving papers!

27

The statement at issue taken verbatim from Taco Bell’s brief is as follows:

28

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“Due to regular maintenance, remodels, repairs, and normal wear and tear, virtually every

1

accessibility element is subject to change over time so that evidence that an element is or

is not in compliance today (for purposes of determining injunctive relief) is not

2

dispositive of whether that same element was in compliance at the time a class member

visited the restaurant during the class period for determination of an individual class

3

member’s damages claim.”

4 (Def.’s Mot. for Mod. of Class Def. of 10/19/04 at 3:13-18 [docket #110]) (emphasis added).

5

“Judicial admissions are formal admissions in the pleadings which have the effect of

6 withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” American

7 Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1998). The Ninth Circuit has held that

8 “statements of fact contained in a brief may be considered admissions of the party in the discretion of

9 the district court.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1998)

10 (emphasis in original). In American Title, the Ninth Circuit ultimately affirmed the district court’s

11 refusal to treat the statement at issue contained in a trial brief as a binding judicial admission, however,

12 because the proponent of the purported admission failed to oppose or object to the introduction of

13 conflicting evidence at the subsequent trial and thereby waived the argument that the issue was

14 “conclusively settled”. Id. at 227. Significantly, the Ninth Circuit noted that the first time that the

15 proponent of the alleged admission first argued that the statement constituted a binding admission was

16 in a post-trial motion for a new judgment. Id. at 226.

17

Under the circumstances, Taco Bell submits that the Court should have declined to find that the

18 statement in Taco Bell’s 10/19/04 brief constitutes a judicial admission for several reasons.

19

First, assuming that the Court construed Taco Bell’s statement in a prior brief as an admission,

20 this begs the question as to exactly what material fact the Court construes Taco Bell’s statement as

21 conceding. Taco Bell’s lengthy statement can be broken into two discrete observations. First, Taco

22 Bell’s statement points out that evidence that a particular element at a particular store is or is not in

23 compliance on a particular day for purposes of determining injunctive relief is not dispositive of whether

24 that same element at that particular store was in compliance at the time that a class member actually

25 visited the store during the class period for determination of an individual class member’s state law

26 damages claim. Taco Bell submits that this portion of its statement is not an admission on which the

27 Court is relying upon to deny application of the mootness doctrine. After all, even the Court appears to

28 agree with Taco Bell’s statement insofar as the Court has recognized via its citation of the decision in

9
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1 Donald v. Café Royale, 218 Cal. App. 3d 168 (Cal. Ct. App. 1990), that state law damages claims are

2 contingent upon the class member demonstrating a denial of equal access on a particular occasion.

3 (8/8/07 Order at 26-27.)

4

The other component of Taco Bell’s statement makes the unremarkable observation that virtually

5 every accessibility element is subject to change over time. Given that it is stipulated that some of Taco

6 Bell’s stores were constructed as early as the 1960s, it is unremarkable to draw the inference that at

7 some point in a store’s 40-year history, some or many accessibility elements may be subject to change at

8 some point during its operating history. Such statement does not admit that virtually all accessibility

9 elements “change frequently” as alluded to by the Court. Indeed, plaintiffs’ reference to items that

10 frequently change noticeably omits queue lines. (Pls.’ Reply at 26:17-21.) Thus, at minimum, the

11 Court’s assumption as to the frequency of the changing of queue lines goes even beyond plaintiffs’

12 argument.

13

Moreover, assuming arguendo that Taco Bell’s statement could somehow be construed to mean

14 that the majority of 638 accessibility elements at issue in the instant action “change frequently” based on 15 past experience, the Court has improperly drawn a double inference9 or more aptly a double admission

16 and construed Taco Bell’s statement out of context by inferring that Taco Bell has somehow admitted

17 that it is incapable of voluntarily complying with accessibility standards going forward as to the specific

18 elements at issue in plaintiffs’ Motion on a long-term, permanent basis. Taco Bell’s statement makes no

19 such admission.

20

Taco Bell’s statement makes reference to “regular maintenance,” “repairs,” and “normal wear

21 and tear.” (Def.’s Mot. for Modification of Class Def. at 3:13.) The fact that an item does not provide

22 equal access due to maintenance or repairs has been expressly recognized by a regulation implemented

23 by the U.S. Department of Justice as not an accessibility violation. 28 C.F.R. § 36.211(b); Foley v. City

24 of Lafayette, Indiana, 359 F.3d 925, 931 (7th Cir. 2004) (holding that an inoperable elevator and snow-

25 covered ramp did not create a viable ADA claim because they were temporary or isolated and occurred

26 during unusual circumstances, namely, heavy snowfall) (2-1 decision). Accessibility elements may

27

9
28

Courts have exercised caution regarding multiple and successive inferences. United States v.

Michel, 446 F.3d 1122, 1128 (10th Cir. 2006); see also Fed. R. Evid. 403.

10

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1 need repair or replacement over time due to vandalism, improper customer usage, or other problems that

2 Taco Bell did not affirmatively create. Thus, to the extent that the Court has determined that Taco Bell

3 is incapable of voluntarily complying with accessibility standards going forward as to the specific

4 elements at issue in plaintiffs’ Motion on a long-term, permanent basis based upon the assumption that

5 Taco Bell has somehow admitted the possibility of temporary interruptions in equal access due to

6 maintenance or repairs, such determination is improper. As a matter of law, any such temporary or

7 isolated interruptions in equal access do not violate either the ADA or state law.

8

Indeed, Taco Bell has proffered evidence of its door opening force maintenance policy to the

9 Court via paragraphs 2 and 3 of the declaration of Michael Harkins filed on March 23, 2007 [docket

10 #263]. The existence of such maintenance policy is highly significant. In Foley v. City of Lafayette,

11 Ind., 359 F.3d 925 (7th Cir. 2004) (Kanne, J.), the Seventh Circuit relied upon a similar long-term

12 service contract with an elevator repair company as the basis for implicitly finding that any future

13 interruptions in access by the mobility-impaired patrons of the train service would be temporary or

14 isolated. Id. at 929-30. Indeed, plaintiffs did not make any objections to Taco Bell’s evidence of such

15 policy or criticize it as somehow inadequate or less than what they would request as a form of injunctive

16 relief. Plaintiffs’ silence is telling.

17

As for comprehensive modifications resulting from remodeling or renovations including the

18 replacement of stores, such modifications are likely to be subject to scrutiny from local municipalities as

19 part of the process to obtain building permits and certificates of occupancy. As previously disclosed to

20 the Court, Taco Bell’s parent entity, Yum! Brands, Inc., currently employs a Director of ADA

21 Compliance, Steve Elmer, whose responsibility is to ensure that the remodeling or complete

22 replacement of Taco Bell company-owned California stores takes into account federal and state

23 accessibility requirements. (S. Elmer Decl. of 5/10/07 ¶ 1 [docket #281].) Thus, to the extent that the

24 Court has determined that Taco Bell is incapable of voluntarily complying with accessibility standards

25 going forward as to the specific elements at issue in plaintiffs’ Motion on a long-term, permanent basis

26 based upon the assumption that Taco Bell has somehow admitted that it is incapable of ensuring equal

27 access to its stores following the remodeling or complete replacement of such stores, such determination

28 is improper. To the contrary, Taco Bell has previously explained that it is more than up for the task, as

11
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Case 3:02-cv-05849-PJH Document 319 Filed 09/21/2007 Page 16 of 19

1 demonstrated by the recent comprehensive modification of more than 140 stores!

2

Indeed, Taco Bell’s evidentiary submission to the Court demonstrates that Taco Bell’s professed

3 interest in maintaining accessibility at its California company-owned stores is not mere “talk” as

4 demonstrated by more than $6 million in accessibility-related expenses incurred over the past year. (S.

5 Elmer decl. of 9/14/07 ¶ 3.)

6

In addition, as explained in Taco Bell’s sur-reply, the issue is not “conclusively settled” as to

7 how frequently the specific elements addressed in plaintiffs’ Motion, in fact, are likely to change in the

8 future given the current circumstances at issue in the instant action. That is, given that Taco Bell clearly

9 faces the risk of additional litigation at substantial expense if it were to reinstall purportedly

10 noncompliant indoor seating or queue lines or door closers at great expense, Taco Bell has already

11 explained that it has no intention of reinstalling purportedly noncompliant fixtures given the heavy price

12 Taco Bell has already paid to modify its stores to enhance their accessibility, and has affirmatively and

13 voluntarily implemented measures to ensure that door opening force is consistently maintained at its

14 California company-owned stores. The sheer volume of recent modifications costing over $6 million is

15 ample evidence from which the Court can and should infer that Taco Bell is taking its obligation to

16 ensure the accessibility of its stores very seriously, and that Taco Bell has no intention of changing

17 modified features so that they are once again even arguably noncompliant and literally buy itself another

18 class action lawsuit. The idea that Taco Bell is going to remove a queue line entirely and then reinstall

19 it surreptitiously after the conclusion of this action and risk further exposure to significant litigation is

20 unreasonable on its face. This is precisely why the district court in a recent decision decided as a matter

21 of law that structural modifications at a restaurant rendered ADA issues moot because they could not

22 “reasonably” be expected to recur. Sharp v. Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB), 2007 WL

23 2137301, at *4 (D.D.C. July 26, 2007) (Bates, J.).

24

Thus, Taco Bell’s statement in its prior brief as to changes occurring at its stores does not

25 constitute an admission that Taco Bell lacks the ability to ensure compliance with ADA or California

26 accessibility requirements at its California company-owned stores on a long-term, permanent basis.

27

It does not follow logically that because changes to accessibility (temporary, isolated or more

28 substantial in time) have occurred in the past and may continue to occur over time due to maintenance,

12
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1 repairs, or more substantial changes such as major remodeling or replacement altogether of a store, that

2 Taco Bell is not capable of ensuring the competent performance of future modifications via licensed

3 California contractors who are required by law to know accessibility requirements. The best evidence is

4 its comprehensive modification of 140+ stores over the past year. Taco Bell is not admitting its inability

5 to do so at all and does not need indefinite Court supervision or monitoring in the form of a permanent

6 injunction to ensure future compliance. The mere threat of another class action lawsuit and its attendant

7 costs is ample incentive to ensure future compliance.

8

Significantly, plaintiffs made no attempt to object to the presentation of Taco Bell’s evidence

9 confirming the permanent, long-term nature of Taco Bell’s recent modifications, and essentially waived

10 the argument that the issue was conclusively settled. Indeed, plaintiffs failed to even argue the existence

11 of a judicial admission anywhere in their moving papers including page 26 of their reply brief in support

12 of their Motion wherein plaintiffs raised for the first time the argument that accessibility elements at

13 Taco Bell’s stores change over time.

14

If the Court has serious qualms about Taco Bell’s ability to ensure the long-term accessibility of

15 the store elements at issue in plaintiffs’ Motion given Taco Bell’s recent modifications to door opening

16 force, queue lines, and/or indoor seating, then the Court should conduct a trial on this factual question

17 instead of sua sponte withdrawing a fact from issue and dispensing wholly with the need for proof of the

18 fact. Otherwise, the Court should decide as a matter of law that Taco Bell has demonstrated via its

19 recent modifications to door opening force, queue lines, and/or indoor seating that it is capable of

20 making and has made long-term modifications and has demonstrated its ability to make accessibility

21 repairs and modifications, and that plaintiffs cannot satisfy their burden to prove they are at risk of

22 irreparable harm because of a lack of showing of “a real or immediate threat that the plaintiff[s] will be

23 wronged again.” Deck v. American Hawaii Cruises, Inc., 121 F. Supp. 2d 1292, 1297 (D. Haw. 2000).

24

Even assuming that the Court correctly characterized former defense counsel’s statement as a

25 judicial admission (which Taco Bell disputes), Taco Bell explained its statement via its sur-reply, via the

26 September 12, 2007 Joint Status Conference Statement, and via the instant motion by making it clear

27 that Taco Bell has every intention of performing future maintenance and repair work and more

28 substantial remodeling or renovations in a compliant manner. Taco Bell has no intention of reinstalling

13
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1 purportedly noncompliant features especially given the tremendous expense of more than $6 million

2 already incurred to comprehensively modify its California stores and the attendant future risk of

3 additional litigation and the additional expenses that would create. As explained by the Ninth Circuit,

4 this Court was required to accord Taco Bell’s explanation due weight. Sicor Ltd. v. Cetus Corp., 51

5 F.3d 848, 859-60 (9th Cir. 1995) (“Where . . . the party making an ostensible judicial admission explains

6 the error in a subsequent pleading or by amendment, the trial court must accord the explanation due

7 weight.”) (emphasis added).

8 G. The Court Failed to Consider the Novel Question of Whether the Readily Achievable

9

Analysis Is Equally Applicable Under State Law Accessibility Claims.

10

Although the Court assumed that it did not need to engage in a readily achievable analysis by

11 relying exclusively upon state law standards, this begs the question of whether the readily achievable

12 analysis is equally applicable in litigating Unruh Act and CDPA claims. In Sanford v. Del Taco, Inc.,

13 No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006) (Burrell, J.), the plaintiff

14 argued that the Legislature adopted the ADA’s readily achievable standard in the Title 24 context. Id. at

15 *5. The district court stated, “Plaintiff concludes the alteration requirement in Title 24 is no longer

16 California law, because ‘the California Legislature intended to adopt the same requirement of ‘readily

17 achievable’ barrier removal for current [Title 24] violations (as the ADA requires for ADAAG

18 violations) . . . .” Id. at *6. “Plaintiff cites no California case law holding that the ADA’s readily

19 achievable standard changes when the Title 24 standard applies to barriers, and independent research

20 has found none. Plaintiff’s state claims based on this interpretation of California law, therefore, raise

21 issues of first impression. Since the interpretation of state law on these issues should be left to the state

22 courts, these state claims will be dismissed.” Id. at *6 (emphasis added).

23

Similarly, in Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134, 1135-36

24 (N.D. Cal. 1998), the district court held, “Because the Unruh Act has adopted the full expanse of the

25 ADA, it must follow, that the same standards for liability apply under both Acts.”

26

In Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006) (Graber, J.), the Ninth Circuit,

27 addressing the 1992 amendment of the Unruh Act and the 1996 amendment of the DPA, held, “[W]e

28 hold that those amendments incorporate into the Unruh Act and the DPA only those provisions of the

14
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1 ADA that are germane to the statutes’ original subject matter.” Id. at 983 (emphasis added).

2

Thus, if this Court is going to address the Unruh Act and CDPA claims, then this Court should

3 address the question whether the readily achievable standard recognized in federal ADA actions is

4 equally applicable when analyzing Unruh Act and CDPA claims. Alternatively, the Court should

5 decline to exercise supplemental jurisdiction over such claims so that such novel and complex state law

6 questions can be addressed in the first instance by California courts.

7 H. Subsequent Case Authority Confirms that the Issuance of Certificates of Occupancy Is

8

Prima Facie Evidence of Compliance with Accessibility Requirements and Provides an

9

Equitable Bar to Liability.

10

Subsequent to the May 17, 2007 hearing in this action, a federal district court in the Southern

11 District of California addressed the evidentiary value of the issuance of certificates of occupancy as

12 prima facie evidence of compliance with applicable accessibility regulations. See Antoninetti v.

13 Chipotle Mexican Grill, Inc., No. 05CV1660 J (WMc), slip op. at 19:7-8, 19:11-13 (S.D. Cal. June 14,

14 2007) (Jones, J.) (“[c]ompliance with a state building code creates a rebuttable presumption of

15 compliance with the ADA.”).

16 I. The Court Failed to Consider Material Facts and Taco Bell’s Legal Arguments As to Why

17

the Court Should Not Exercise Supplemental Jurisdiction.

18

Although the parties have engaged in an extensive analysis of why the Court should exercise

19 supplemental jurisdiction over plaintiffs’ state law claims, the Court’s order is silent on that issue. The

20 Court has not articulated its reasons for exercising supplemental jurisdiction including any conclusions

21 of law, making the Court’s decision difficult for appellate review. Kolari v. New York-Presbyterian

22 Hospital, 455 F.3d 118, 123 (2d Cir. 2006) (Feinberg, J.) (“we are left to guess almost entirely at what

23 federal interest, if any, is at stake” because “[t]he district court’s discussion [regarding the exercise of

24 supplemental jurisdiction] is too limited to supply that interest”).

25

GREENBERG TRAURIG, LLP

26

27 Dated: September 21, 2007 28
Case No. C 02-5849 MJJ ADR
OC 286177214v1 9/21/2007

By: /s/ RICHARD H. HIKIDA Attorneys for Defendant TACO BELL CORP.
15

 
 Case4:02-cv-05849-PJH Document322 Filed09/21/07 Page1 of 3

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice 910 - 16th Street
3 Suite 610 Denver, Colorado 80202
4 Tel: (303) 595-9700 Fax: (303) 595-9705
5 LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823 835 Mandana Blvd.
7 Oakland, CA 94610 Tel: (510) 419-0940
8 Fax: (510) 419-0948

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax:(510) 845-3654

9 Attorneys for Plaintiffs
10

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 FRANCIE E. MOELLER et al,
14 Plaintiffs,
15 v.
16 TACO BELL CORP.,
17 Defendant.
18

Case No. C 02 5849 MJJ ADR
[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION TO MAKE FINDINGS OF FACT, AND TO ADOPT THE SPECIAL MASTER’S REPORTS WITH LIMITED OBJECTIONS
Hearing Date and Time: To be determined at the January 24, 2007 Status Conference

19 The Court, having considered Plaintiffs’ Motion to Make Findings of Fact, and to
20 Adopt the Special Master’s Reports with Limited Objections (“Plaintiffs’ Motion”) and all
21 opposition thereto, hereby finds as follows.
22 1. In 2004, the parties jointly retained Bob Evans to survey 20 of the restaurants at
23 issue in this case, which they referred to as the “Pilot Program” restaurants. See Memo. of
24 Understanding (May 19, 2004) (Ex. 3 to the Declaration of Amy F. Robertson in Support of
25
Case No. C 02 04823 RS ADR
26 Declination to Proceed Before a Magistrate Judge and Reassignment to a United States District Judge

Case4:02-cv-05849-PJH Document322 Filed09/21/07 Page2 of 3

1 Plaintiffs’ Motion to Make Findings of Fact, and to Adopt the Special Master's Reports with

2 Limited Objections (“Robertson Declaration” or “Robertson Decl.”). The parties have

3 stipulated that the measurements and dimensions set forth in Mr. Evans’s survey reports for the

4 20 Pilot Program restaurants are accurate. See id. at ¶ 1; Jt. Status Conf. Statement at ¶ 31

5 (Feb. 1, 2005, Docket No. 157). Pursuant to this stipulation, the Court hereby makes as

6 findings of facts the dimensions and measurements of the architectural elements on the dates

7 they were surveyed, as set forth in the survey reports for the Pilot Program restaurants, which

8 are attached as exhibits 4 through 23 to the Robertson Declaration.

9

2. At the parties’ joint request, this Court appointed Mr. Evans as a Special Master

10 to survey the restaurants at issue in this case. See Order Appointing Special Master (“Special

11 Master Order”) (October 5, 2004, Docket No. 101). The Special Master Order required the

12 parties to confer on a monthly basis concerning the results of the Special Master surveys, and

13 all measurements or dimensions the accuracy of which were not challenged during these

14 monthly meetings would become findings of fact. See Special Master Order at ¶¶ 7(d) & 8(b).

15 The deadline to challenge the accuracy of the Special Master’s measurements was later

16 extended to 45 days after Defendant’s receipt of the last of the Plaintiffs’ Meet and Confer

17 Charts. See Order Granting Stipulated Motion to Continue the Status Conference Currently Set

18 for May 18, 2006 and to Re-Set Pre-Trial Dates (“April 25 Order”) at 2 (Apr. 25, 2006, Docket

19 No. 203). Plaintiffs produced their last Meet and Confer charts on June 8, 2006, and thus the

20 deadline for Defendant to challenge the accuracy of the Special Master’s measurements was

21 July 24, 2006.

22

3. Plaintiffs have submitted a list of Special Master measurements to which the

23 Defendant did not object on or before July 24, 2006. See Ex. 1 to Robertson Declaration.

24 Pursuant to the Special Master Order and the April 25 Order, as well as the Ninth Circuit’s

25
Case No. C 02 04823 RS ADR
26 Declination to Proceed Before a Magistrate Judge and Reassignment to a United States District Judge -2-

Case4:02-cv-05849-PJH Document322 Filed09/21/07 Page3 of 3

1 decision in Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992), these

2 measurements and dimensions of the architectural elements on the dates they were surveyed,

3 set forth in exhibit 1 to the Robertson Declaration, are hereby made findings of fact.

4

4. Paragraph 8(b) of the Special Master Order provided that “[a]ny portion of the

5 Special Master’s Report that is not the subject of a timely objection or motion to modify shall

6 be adopted by the Court as a finding of fact.” Plaintiffs have submitted a list of dimensions

7 and measurements of architectural elements on the dates they were surveyed, to which

8 Defendant did not properly object by January 12, 2007. These measurements are hereby made

UNITED S ALIFORNIA

OURT NORTH

9 findings of fact.

10

IT IS SO ORDERED.

11 12 DATED: _9_/_2_0_/2_0_0_7_______

13

TATES DISTRICT C TUhneiteHdoISTnotarItaSebslSeDOMistOarrictRitnDCJoE. uJRertnEkDins

14 15

Judge Martin J. Jenkins

16 17

ERN DISTRICT OF C

18

19

20

21

22

23

24

25
Case No. C 02 04823 RS ADR
26 Declination to Proceed Before a Magistrate Judge and Reassignment to a United States District Judge -3-

 
 Case 3:02-cv-05849-PJH Document 331 Filed 10/05/2007 Page 1 of 24

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, pro hac vice
910 - 16th Street
3 Suite 610
Denver, Colorado 80202
4 Tel: (303) 595-9700
Fax: (303) 595-9705
5 Email: tfox@foxrob.com
6 LAWSON LAW OFFICES
Antonio M. Lawson, Cal. Bar No. 140823
7 835 Mandana Blvd.
Oakland, CA 94610
8 Tel: (510) 419-0940
Fax: (510) 419-0948
9 Email: tony@lawsonlawoffices.com

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bs@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 FRANCIE E. MOELLER et al,

14

Plaintiffs,

15 v.

16 TACO BELL CORP.,

17

Defendant.

18

Case No. C 02 5849 MJJ ADR
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANT TACO BELL CORP.’S MOTION FOR RECONSIDERATION OF AUGUST 8, 2007 ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR Plaintiffs’ Memorandum in Opposition to Defendant Taco Bell Corp.’s Motion for Reconsideration

Case 3:02-cv-05849-PJH Document 331 Filed 10/05/2007 Page 2 of 24

1

TABLE OF CONTENTS

2 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3

4 I. Standard of Review and Request to Limit Review to Issues as to Which Leave was

5

Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

6 II. The Sanford Case Is Not Relevant Either to the Questions Raised in Plaintiffs’ Motion for

7

Partial Summary Judgment or to this Case in General. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8

III. The Sharp Case Is Similar to Other Decisions Rejected by this Court and Is

9

Distinguishable from this Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

11 IV. The Remainder of Defendant’s Arguments Are Without Merit. . . . . . . . . . . . . . . . . . . . . 6

12

A. Defendant is Not Permitted to Re-Argue Previous Arguments.. . . . . . . . . . . . . . . 6

13

14

B. The Court’s Holding on Mootness Was Proper. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

15

C. The Court’s Reliance on Statements in Defendant’s Earlier Brief, Especially

16

Supported by Testimony of Defendant’s Facilities Leader, was Proper. . . . . . . . . 8

17

D. The Antoninetti Case Is Consistent with this Court’s Holding Concerning

18

Certificates of Occupancy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

19

20

E. It Is Appropriate for this Court to Assert Supplemental Jurisdiction Over

Plaintiffs’ State Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

21

22

1. This Court is Required to Follow the Ninth Circuit’s Unambiguous

23

Holding on the State Law Question Defendant Claims is Novel and

Complex.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

24

25

2. State Claims Do Not Predominate Over Federal Claims.. . . . . . . . . . . 12

26

27

28

Case No. C 02 5849 MJJ ADR Plaintiffs’ Memorandum in Opposition to Defendant Taco Bell Corp.’s Motion for Reconsideration

Page i

Case 3:02-cv-05849-PJH Document 331 Filed 10/05/2007 Page 3 of 24

1

3. Even If this Court Should Hold That Section 1367(c)(1) or (2) Applies,

2

it Should Exercise its Discretion to Retain Supplemental Jurisdiction of

Plaintiffs’ State Claims...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3

4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 02 5849 MJJ ADR Plaintiffs’ Memorandum in Opposition to Defendant Taco Bell Corp.’s Motion for Reconsideration

Page ii

Case 3:02-cv-05849-PJH Document 331 Filed 10/05/2007 Page 4 of 24

1

TABLE OF AUTHORITIES

2 Cases

3 Antoninetti v. Chipotle Mexican Grill, Inc.,

No. 3:05-cv-01660-J-WMC (S.D. Cal. June 14, 2007) . . . . . . . . . . . . . . . . . . . . . . . . 9-10

4

Bass v. County of Butte,

5

458 F.3d 978 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6 Borough of W. Mifflin v. Lancaster,

45 F.3d 780 (3rd Cir.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

7

Clavo v. Zarrabian,

8

No. SACV03864CJCRCX, 2004 WL 3709049 (C.D. Cal. May 17, 2004). . . . . . . . . . . . 7

9 Colo. Cross-Disability Coal. v. Taco Bell Corp.,

No. 97-cv-2135-LTB (D. Colo.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10

County of Los Angeles v. Davis,

11

440 U.S. 625 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12 Cross v. Boston Market Corp.,

No. 07cv486 J (LSP) (S.D. Cal. May 29, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

13

Cross v. Pacific Coast Plaza Investments, L.P.,

14

No. 06 CV 2543 JM (RBB), 2007 WL 951772 (S.D. Cal. Mar. 6, 2007). . . . . . . . . . . . 17

15 Cross v. Plaza Camino Real,

No. 07-CV-318-IEG (RBB) (S.D. Cal. June 22, 2007) (S.D. Cal. June 22, 2007).. . . . . 17

16

Equal Access Association Suing on Behalf of Roy Davis Gash v. PFS, LLC,

17

No. 07 CV 158 WQH (LSP), 2007 U.S. Dist. LEXIS 40672 (S.D. Cal. June 4, 2007). . 17

18 Executive Software N. Am., Inc. v. U.S. Dist. Court,

24 F.3d 1545 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-11, 15

19

Gunther v. Lin,

20

144 Cal. App. 4th 223 (Cal. Ct. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

21 Hannah v. W. Gateway Reg’l Recreation Park & Dist.,

No. CIV S-06-571 LKK/DAD, 2007 WL 2795769, (E.D. Cal. Sept. 25, 2007) . . . . 12, 16

22

Hart v. Massanari,

23

266 F.3d 1155 9th Cir. 2001) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

24 Imagineering, Inc. v. Kiewit Pac. Co.,

976 F.2d 1303 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

25

Johnson v. Barlow,

26

2007 WL 1723617 (E.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 16

27 Kohler v. Mira Mesa Marketplace West, LLC, No. 06cv2399 WQH (POR), 2007 WL 1614883 (S.D. Cal. June 4, 2007). . . . . . . . . . . 17
28

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1 Kona Enters., Inc. v. Estate of Bishop,

229 F.3d 877 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2

Lentini v. Cal. Ctr. for the Arts,

3

370 F.3d 837 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

4 LiveOps, Inc. v. Teleo, Inc.,

No. C05-03773 MJJ, 2006 WL 83058 (N.D. Cal. Jan. 9, 2006) . . . . . . . . . . . . . . . . 14, 15

5

McConnell v. Lassen County,

6

No. CIV. S-05-0909 FCD DAD, 2007 WL 2345009 (E.D. Cal. Aug. 15, 2007) . . . . . . . 2

7 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

8

Morgan v. American Stores Co. LLC,

9

No. 06 CV 2437 JM (RBB) (S.D. Cal. June 29, 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . .17

10 Morgan v. El Torito Restaurants, Inc.,

No. 07 CV 0223 DMS (BLM) (S.D. Cal. July 11, 2007). . . . . . . . . . . . . . . . . . . . . . . . . .17

11

Nolan v. Heald Coll.,

12

No. 05-03399-MJJ, 2007 WL 878946 (N.D. Cal. Mar. 21, 2007). . . . . . . . . . . . . . . . . 2, 7

13 People ex rel. Deukmejian v. CHE, Inc.,

197 Cal. Rptr. 484 (Cal. Ct. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

14

Pinnock v. Solana Beach Do It Yourself Dog Wash, Inc.,

15

No. 06cv1816 BTM (JMA), 2007 WL 1989635 (S.D. Cal. July 3, 2007) . . . . . . . . . . . 16

16 Pooshs v. Altria Group, Inc.,

331 F. Supp. 2d 1089 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

17

Presta v. Peninsula Corridor Jt. Powers Bd.,

18

16 F. Supp. 2d 1134 (N.D. Cal. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

19 Sanford v. Del Taco, Inc.,

No. 2:04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006) . . 2, 3, 4, 11

20

Schneider v. TRW, Inc.,

21

938 F.2d 986 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

22 Schwarm v. Craighead,

233 F.R.D. 655 (E.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

23

Sharp v. Rosa Mexicano,

24

D.C., LLC, 496 F. Supp. 2d 93 (D.D.C. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5

25 Triple AAA Association for Children with Developmental Disabilities v. Del Taco Inc.,

No. 06cv2199 DMS (WMc) (S.D. Cal. Feb. 26, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 17

26

Wilson v. Haria and Gogri Corp.,

27

479 F. Supp. 2d 1127 (E.D. Cal. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28

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1 Wilson v. PFS, LLC,

No. 06CV1046 WQN (NLS), 493 F.Supp.2d 1122 (S.D. Cal. 2007).. . . . . . . . . . . . . . . 17

2

Wilson v. Pier 1 Imports (US), Inc.,

3

439 F. Supp. 2d 1054 (E.D. Cal. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4 Yates v. Belli Deli, No. C07-01405 WHA, 2007 WL 2318923, (N.D. Cal. Aug. 13, 2007) . . . . . . . . . . . . . 17
5

6 Statutes 7 Title III of the Americans with Disabilities Act of 1990. . . . . . . . . . . . . . . . . . . . . . . . . . passim

8 28 U.S.C. § 1367 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 9 10 The California Disabled Persons Act, Cal. Civ. Code § 54, et seq... . . . . . . . . . . . . . . . . passim

11 The Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . passim

12

13 Regulations

Nondiscrimination on the Basis of Disability by Public Accommodations and in

14

Commercial Facilities, 28 C.F.R. § 36.602 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

15

16 Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A. . . . . . . 13, 14

17 ANSI A117.1-1961: American National Standard Specifications for Making Buildings and

18

Facilities Accessible to and Usable by, The Physically Handicapped. . . . . . . . . . . . 13, 14

19 California Code of Regulations, Title 24.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
20

21 Rules

22 Rule 59(e) of the Federal Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
23

24 Northern District of California Civil Local Rule 7-9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6

25
Other
26 ADA Certification of State Accessibility Requirements (October 1, 2004), available at http://www.dsa.dgs.ca.gov/Access/adacert.htm .. . . . . . . . . . . . . . . . . . . . . . 9
27

28

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1

Introduction

2

On August 8, 2007, this Court issued its Order Denying in Part and Granting in Part

3 Plaintiffs’ Motion for Partial Summary Judgment (“PSJ Order”). Defendant’s motion for

4 reconsideration of that Order should be denied because: (1) It goes beyond the issues for which

5 leave was granted pursuant to Local Rule 7-9(a) and repeats arguments from its earlier briefing,

6 in violation of Local Rule 7-9(c); (2) it presents no new law or facts or other grounds that

7 undermine the soundness of this Court’s rulings on mootness, the significance of certificates of

8 occupancy, and the irrelevance of the “readily achievable” standard to Plaintiffs’ Motion for

9 Partial Summary Judgment; and (3) Defendant has provided no grounds for this Court to

10 decline supplemental jurisdiction over Plaintiffs’ state claims.

11

Plaintiffs respectfully request that Defendant Taco Bell Corp.’s Motion for

12 Reconsideration of August 8, 2007 Order Granting in Part Plaintiffs’ Motion for Partial

13 Summary Judgment (“Motion for Reconsideration” or “Mot. for Recon.”) be denied.

14 I. Standard of Review and Request to Limit Review to Issues as to Which Leave was Granted.
15 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of
16 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229
17 F.3d 877, 890 (9th Cir. 2000) (internal citation omitted). “[A] motion for reconsideration
18 should not be granted, absent highly unusual circumstances, unless the district court is
19 presented with newly discovered evidence, committed clear error, or if there is an intervening
20 change in the controlling law.” Id. (internal citation omitted); see also N.D. Cal. Civil L.R. 7-
21 9(b) (standards for moving to reconsider are “a material difference in fact or law” that the
22 moving party did not know through the exercise of reasonable diligence; “the emergence of
23 new material facts or change of law,” or “[a] manifest failure by the Court to consider material
24 facts or dispositive legal arguments . . .”) Civil Local Rule 7-9(a) requires leave of court to file
25 a motion for reconsideration; subparagraph (c) of that Rule expressly prohibits repetition of any
26 argument that the moving party made in support of the order it requests the Court to reconsider.
27 “Any party who violates this restriction shall be subject to appropriate sanctions.” Id.
28

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1

“Whatever may be the purpose of Rule 59(e) it should not be supposed that it is intended

2 to give an unhappy litigant one additional chance to sway the judge.” Nolan v. Heald Coll., 3 No. 05-03399-MJJ, 2007 WL 878946, at *8 (N.D. Cal. Mar. 21, 2007).1

4

In its portion of the September 12, 2007 Joint Status Conference Statement (“Joint

5 Statement”), Defendant sought leave pursuant to Local Rule 7-9 to file a motion for

6 reconsideration on a broad range of questions. (Id. at 7-34.) During the September 18 status

7 conference, this Court indicated that it would review the two cases mentioned in Defendant’s

8 portion of the Joint Statement: Sanford v. Del Taco, Inc., No. 2:04-cv-2154-GEB-EFB, 2006

9 WL 2669351 (E.D. Cal. Sept. 18, 2006) (Burrell, J.); and Sharp v. Rosa Mexicano, D.C., LLC,

10 496 F. Supp. 2d 93 (D.D.C. 2007) (Bates, J.). (See Tr. of Proceedings (Sept. 18, 2007) at 15-

11 16.) Defendant’s Motion for Reconsideration addresses these two cases and makes a number

12 of additional arguments for which leave was not granted.

13

Plaintiffs’ responses to Defendant’s arguments on the Sanford and Sharp cases are

14 contained in sections II and III below. Plaintiffs respectfully request that this Court limit its

15 review of Defendant’s motion to those two issues. Should the Court elect to review matters as

16 to which leave was not granted, Plaintiffs address those arguments in Section IV below.

17 II. The Sanford Case Is Not Relevant Either to the Questions Raised in Plaintiffs’ Motion for Partial Summary Judgment or to this Case in General.
18 The Unruh Civil Rights Act (“Unruh”) and California Disabled Persons Act (“CDPA”)
19 make a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., a
20 violation of those statutes. Cal. Civ. Code §§ 51(f), 54(c). The allegedly novel question at
21 issue in the Sanford case is whether this has the effect of incorporating the ADA’s “readily
22 achievable” standard, 42 U.S.C. § 12182(b)(2)(A)(iv), into Title 24 of the California Building
23 Code, Cal. Code Regs. tit. 24 (“Title 24”), for buildings built before Title 24 took effect and
24 not altered since. Sanford, 2006 WL 2669351, at *5-6. Because, as this Court correctly
25

26

1

While Rule 59(e) applies to final judgments, courts may look to the standards

27 governing that Rule as “helpful guides” in evaluating a request to reconsider an interlocutory

order. See McConnell v. Lassen County, No. CIV. S-05-0909 FCD DAD, 2007 WL 2345009,

28 at *1 n.4 (E.D. Cal. Aug. 15, 2007).

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1 recognized, Plaintiffs’ Motion for Partial Summary Judgment relied only on new construction

2 standards under both the ADA and Title 24, see PSJ Order at 5, 27-28, this argument is

3 irrelevant to the resolution of that motion. Because Plaintiffs do not -- anywhere else in this

4 case -- rely on the alleged standard put forward by the plaintiff in Sanford, this argument is also

5 irrelevant to this case as a whole.

6

In evaluating the accessibility of a building, the ADA applies one of three standards; Title

7 24, one of only two.

8

Under the ADA,

9

1. facilities built after January 26, 1993 are governed by 42 U.S.C. § 12183(a)(1);

10

2. those built before that time but altered since January 26, 1992 are governed by

11

§ 12183(a)(2); and

12

3. those built before that time but not altered since -- “existing facilities” -- are governed

13

by the “readily achievable” standard in § 12182(b)(2)(A)(iv).

14

Under Title 24,

15

1. buildings built after the effective date of any given version of that code must comply,

16

see, e.g., Title 24 (1981) § 2-105(b)(11)(B)(1); Title 24 (2002) § 101.17.11; and

17

2. alterations to existing buildings made while a given version of the code is in effect

18

must comply, see, e.g., Title 24 (1981) §§ 2-105(b)(11)(A)(5), (B)(4); Title 24 (2002)

19

§§ 101.17.11; 1134B.1.

20 There is no requirement under Title 24 that existing unaltered buildings be brought into

21 compliance; that is, there is no “readily achievable” requirement in Title 24. This Court

22 accurately summarized these standards in the PSJ Order as to which reconsideration is

23 requested, see id. at 7-10, and in its Order Granting Plaintiffs’ Motion for Class Certification.

24 Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606-07 (N.D. Cal. 2004).

25

The plaintiff in Sanford argued that the provisions of Unruh and the CDPA making a

26 violation of the ADA a violation of those statutes had the effect of rewriting Title 24 to create a

27 third -- “readily achievable” -- standard in that code that would require building owners to

28 bring existing facilities into compliance even when no alterations have taken place. This

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1 argument reflects confusion concerning the effect of Unruh and the CDPA’s reference to the

2 ADA. Prior to 1992, to prove that architectural barriers violated Unruh, a plaintiff would have

3 to prove a violation of Title 24. Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054,

4 1065 (E.D. Cal. 2006). The statute was amended in 1992 to add this language: “[a] violation

5 of the right of any individual under the [ADA] shall also constitute a violation of this section.”

6 Cal. Civ. Code § 51(f) (emphasis added); see also CDPA, Cal Civ. Code § 54(c). Following

7 this amendment, then, there were two different paths to proving an architectural violation of

8 Unruh or the CDPA: by showing a violation of the ADA; or by showing a violation of Title

9 24. For example, showing that an element is out of compliance with Title 24 new construction

10 or alterations standards provides grounds for Unruh and CDPA liability, and a showing that

11 barrier removal in an existing facility is “readily achievable” constitutes a violation of the ADA

12 and thus now Unruh and the CDPA. There is no evidence, however, that the 1992 amendment 13 was intended to rewrite Title 24 to incorporate the readily achievable standard into that code.2

14

Because such an argument is unsupported by the language of California law and

15 regulations, Plaintiffs here do not rely on it, either in their Motion for Partial Summary 16 Judgment or elsewhere, and thus this argument simply does not arise in the present litigation.3

17 III. The Sharp Case Is Similar to Other Decisions Rejected by this Court and Is Distinguishable from this Case.
18 The Sharp case alleged that a single feature -- the sink -- in a single restroom of a single
19 restaurant violated Title III of the ADA. Id., 496 F. Supp. 2d at 95. The state of the undisputed
20 record before the court was that, at the time of the defendant’s motion for summary judgment,
21

22

23

2

Defendant’s reliance on Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006)

and Presta v. Peninsula Corridor Jt. Powers Bd., 16 F. Supp. 2d 1134 (N.D. Cal. 1998) is

24 unavailing. The Bass court limited the reach of Unruh and the CDPA to exclude employment

discrimination claims. Id., 458 F.3d at 982. The Presta court held that, because intent was not

25 an element of a violation of the ADA, it was not an element of a violation of Unruh. Id., 16 F.

Supp. 2d at 1135-36. Neither case provides grounds to rewrite Title 24 to incorporate the

26 ADA’s barrier removal standard.

27

3

Defendant’s introduction of the Sanford “readily achievable” argument is

puzzling, given that Plaintiffs do not espouse it and that, if accepted by the Court, it would be

28 prejudicial to Defendant’s interests.

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1 the sink in question complied. Id. at 98. On that ground, the court held that the plaintiff’s

2 claim under the ADA was moot. Id.

3

Sharp is distinguishable from the present case on a number of grounds. First of all, the

4 plaintiffs brought suit only under the ADA; there were no state law claims for damages as there

5 are here. Furthermore, as this Court noted in distinguishing similar cases, there is no evidence

6 in Sharp “that the element[ ] in question remained subject to ‘frequent change.’” PSJ Order at

7 12 n.13. That is, in contrast to the present case, there was no evidence in the Sharp case that

8 the defendant’s personnel testified -- and the defendant confirmed in its legal briefs -- that the

9 sink in question changed frequently. In contrast, one of the elements that the Facility Leader

10 for Taco Bell’s Northern California Territory identified as being “subject to frequent change”

11 in the stores at issue here was the “[l]ocation/position of sink” in the restroom. (Decl. of Jaime

12 de Beers in Supp. of Def.’s Mot. for Modification of Class Definition (“de Beers Decl.”) ¶¶ 2,

13 6(a)(viii).)

14

In addition, because the Sharp case involved one element in one restaurant, the fact that

15 that one element had been remedied “afford[ed] [the] plaintiff the substance of the relief” he

16 requested. Id., 496 F. Supp. 2d at 98. In contrast, Plaintiffs here challenge multiple violations

17 in multiple restaurants, many of which have not been remedied. (See Decl. of Richard H.

18 Hikida in Supp. of Def. Taco Bell Corp.’s Mot. for Reconsideration of August 8, 2007 Order

19 Granting in Part Pls.’ Mot. for Partial Summ. J. ¶ 8, Table 1.)

20

Furthermore, Defendant’s statements and actions demonstrate that an injunction is

21 required to ensure continued compliance. For example, four of the restaurants that Taco Bell’s

22 Director of ADA Compliance testified, in his May 10, 2007 declaration, were either scheduled

23 to be remedied by May 2007 or had already been remedied are now described, in Taco Bell’s

24 September 21, 2007 Motion for Reconsideration, as “currently scheduled to be modified in

25 2008 or shortly thereafter.” (Compare Decl. of Steve Elmer in Support of Def. Taco Bell

26 Corp.’s Sur-Reply Mem. of Points and Authorities in Opp’n to Pls.’ Mot. for Partial Summ. J.,

27 Ex. 2 at 5 (store 2933), 7 (store 3208), 8 (store 3473), 10 (store 4284) with Mot. for Recon. at 3

28 n. 5 (store 3208), 4 n.7 (stores 2933, 3473 and 4284). See also Pls.’ Reply Br. in Supp. of

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1 Their Mot. for Partial Summ. J. (“Pls.’ Reply”) at 26-28 (describing the efforts required to

2 secure Taco Bell’s compliance with the court-approved settlement in Colo. Cross-Disability

3 Coal. v. Taco Bell Corp., No. 97-cv-2135-LTB (D. Colo.)).)

4

Taco Bell’s filings also make clear that the franchise status of Taco Bell restaurants can

5 fluctuate. Store 15319 was a corporate-owned restaurant in 2004 when Taco Bell presented a

6 list of such restaurants to the Special Master and, because of this, was surveyed by the Special

7 Master. In its portion of the Joint Statement, however, Taco Bell explained, “[a]t the time of

8 the filing of plaintiffs’ motion and the subsequent May 17, 2007 court hearing, store number

9 15319 was operated by a franchisee. It is currently operated by Taco Bell.” Id. at 11 n.3. That

10 is, during the pendency of this litigation, store 15319 has been a corporate store, then a

11 franchised store, then a corporate store again. This demonstrates the need for injunctive relief

12 to ensure compliance in new and acquired restaurants.

13

For these reasons, the Court was correct to hold “Defendant cannot satisfy its heavy

14 burden to show that the past and existing ADA violations will not recur,” and that the Court

15 “may order effective relief as to [the elements at issue in Plaintiffs’ motion] in the form of an

16 injunction requiring Defendant to (1) remedy the remainder of these elements that are out of

17 compliance; (2) maintain those elements in a compliant state; and (3) ensure that those

18 elements comply in any new or acquired restaurants.” PSJ Order at 12.

19

* * *

20

The discussion above addresses the two issues as to which this Court granted Defendant

21 leave to move for reconsideration. Plaintiffs respectfully request that, based on the above,

22 Defendant’s Motion for Reconsideration be denied.

23 IV. The Remainder of Defendant’s Arguments Are Without Merit.

24

A. Defendant is Not Permitted to Re-argue Previous Arguments.

25

Defendant’s Motion for Reconsideration repeats a number of arguments that it made in its

26 opposition and/or sur-reply. For example, it devotes five pages to rearguing evidence

27 concerning modifications to its restaurants. (Compare Mot. for Recon. at 1-5 with Sur-Reply

28 in Supp. of Taco Bell Corp.’s Mem. of Points and Authorities in Opp’n to Mot. for Partial

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1 Summ. J. (“Def.’s Sur-Reply”) at 5-7.) Similarly, Defendant reiterates that some stores

2 addressed by Plaintiffs’ Motion for Partial Summary Judgment were operated by franchisees

3 (compare Mot. for Recon. at 6 with Def.’s Sur-Reply at 8-9), and reasserts its reliance on its

4 door force policy (compare Mot. for Recon. at 7-8 with Def.’s Sur-Reply at 13, 16). Finally,

5 Defendant repeats its argument that this Court lacks supplemental jurisdiction. (Compare Mot.

6 for Recon. at 15 with Def.’s Sur-Reply at 18-20.)

7

Defendant’s conjecture that the Court failed to consider evidence or arguments before it is

8 not grounds for reconsideration. In addition, these arguments violate Civil Local Rule 7-9(c),

9 which prohibits a party moving for reconsideration from “repeat[ing] any oral or written

10 argument made by the applying party in support of or in opposition to the interlocutory order

11 which the party now seeks to have reconsidered.” These arguments constitute a classic attempt

12 by “an unhappy litigant [at] one additional chance to sway the judge.” See Nolan, 2007 WL

13 878946, at *8.

14

B. The Court’s Holding on Mootness Was Proper.

15

Sections A, B and C of Defendant’s Motion for Reconsideration argue that recent

16 changes to its stores or their franchise status render Plaintiffs’ ADA claims moot. The Court’s

17 holding on mootness -- that Defendant had not satisfied its heavy burden to demonstrate that

18 the violations would not recur and that an injunction was still warranted -- did not turn on the

19 percentage of each element that had or had not been remedied or its franchise status. Instead, it

20 turned on the facts -- conceded by Defendant and still true today -- that some elements had not

21 yet been remedied and that many elements were subject to frequent change. See PSJ Order at

22 12. Furthermore, as Taco Bell’s filings demonstrate, a restaurant’s franchise status may

23 fluctuate over a fairly short period of time. See supra at 6.

24

Defendant’s reliance on its door force policy is similarly unavailing. As Plaintiffs

25 explained when Defendant first made this argument, “implementation of a new policy does not

26 eliminate the possibility of future violations.” Clavo v. Zarrabian, No. SACV03864CJCRCX,

27 2004 WL 3709049, at *4 (C.D. Cal. May 17, 2004); see also Pls.’ Reply at 31-32 (citing cases).

28

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1

C. The Court’s Reliance on Statements in Defendant’s Earlier Brief, Especially

Supported by Testimony of Defendant’s Facilities Leader, was Proper.

2

This Court properly considered statements from Defendant’s brief -- relying on the

3

testimony of Defendant’s Facility Leader -- in reaching the conclusion that Defendant had not

4

satisfied its heavy burden of demonstrating mootness. See PSJ Order at 11 (quoting County of

5

Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). There was no need to deem the statement in

6

Defendant’s brief a “judicial admission” -- nor do Plaintiffs read the Court’s decision as having

7

done so -- in order to conclude that these statements -- unrebutted by Defendant -- demonstrate

8

that Defendant did not satisfy its heavy burden.

9

Defendant relied, in arguing for mootness, on assertions that certain elements in its

10

restaurants had been brought into compliance with the ADA and that others would be in the

11

future. In rebuttal, Plaintiffs introduced the testimony of the Facility Leader for Taco Bell’s

12

Northern California Territory that many elements in Taco Bell restaurants were “subject to

13

frequent change” (de Beers Decl. ¶¶ 2, 6), as well as language from an earlier Taco Bell brief

14

that “virtually every accessibility element [in a Taco Bell store] is subject to change over time

15

so that evidence that an element is or is not in compliance today (for purposes of determining

16

injunctive relief) is not dispositive of whether the same element was in compliance” at the time

17

of any class member visit. (Def.’s Mot. for Modification of Class Definition (“Class

18

Modification Brief”) at 3, see also id. at 9-10 (citing de Beers Decl.), 16, cited in Pls.’ Reply at

19

26.) In light of this “frequent change,” an injunction will be required to ensure continued

20

compliance.

21

Now, in asking the Court to reconsider its decision on partial summary judgment,

22

Defendant -- ignoring Ms. de Beers’s testimony entirely -- argues that the Court improperly

23

deemed the statement in Defendant’s Class Modification Brief to be a binding judicial

24

admission. (See Mot. for Recon. at 8-14.) There is no evidence, however, that this is what the

25

Court did. Rather, Plaintiffs read the decision to have held that -- in light of the evidence of

26

“frequent change” -- Defendant had not borne its “heavy burden” of demonstrating that the

27

28

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1 challenged conduct would not recur. See PSJ Order at 12. Because the premise of Section F of

2 Defendant’s Motion for Reconsideration is inaccurate, that argument should be rejected.

3

Defendant argues -- for the first time on reconsideration -- that any future changes that

4 render elements inaccessible will be isolated or temporary and that the efforts it claims to have

5 made to date demonstrate its ability to keep its stores in compliance. (Mot. for Recon. at 11-

6 12.) However, this ignores the heavy burden of proof on Taco Bell. Taco Bell’s promises of

7 future action -- and its prediction that future violations will be isolated and temporary -- cannot

8 satisfy that burden (see Pls.’ Reply at 31-32 (citing cases)), especially in light of its incomplete

9 remedies, its extensive record of noncompliance, its Facility Leader’s testimony (reiterated in

10 its Class Modification Brief) of frequent changes, and the fact that a threat of arbitration was

11 required to get it to comply with an earlier court-ordered settlement. Indeed, Taco Bell

12 announces that it “does not need indefinite Court supervision or monitoring in the form of a

13 permanent injunction to ensure future compliance” because “[t]he mere threat of another class

14 action lawsuit and its attendant costs is ample incentive to ensure future compliance.” (Mot.

15 for Recon. at 13.) Once again, its own conduct rebuts this assertion: the litigation and

16 settlement -- in early 2000 -- of a class action brought against it in Colorado under Title III of

17 the ADA did not provide any incentive to Taco Bell to bring its California stores into

18 compliance, an effort that was apparently not undertaken until late 2006, four years into the

19 present litigation. (See Sur-Reply at 9-10.)

20

D. The Antoninetti Case Is Consistent with this Court’s Holding Concerning

Certificates of Occupancy.

21

Taco Bell asserts that the decision denying the defendant’s motion for summary judgment

22

in Antoninetti v. Chipotle Mexican Grill, Inc., No. 3:05-cv-01660-J-WMC (S.D. Cal. June 14,

23

2007) (attached as an Appendix hereto) constitutes subsequent case authority on the question of

24

the evidentiary value of certificates of occupancy. To the contrary, as quoted by Taco Bell, the

25

Antoninetti court merely held that “[c]ompliance with a state building code creates a rebuttable

26

27

28

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1 presumption of compliance with the ADA.”4 Id., slip op. at 19 (emphasis added), quoted in

2 Mot. for Recon. at 15. Taco Bell submitted no evidence that the elements addressed in

3 Plaintiffs’ Motion for Partial Summary Judgment complied with Title 24 at the time they were

4 surveyed by the Special Master. Taco Bell reads the Antoninetti case as if it had stated that a

5 certificate of occupancy creates a rebuttable presumption of compliance. (See Mot. for Recon.

6 at 15.) Even if this were an accurate reading, again, Plaintiffs fully rebutted the presumption

7 with their evidence of ADA and/or Title 24 violations (see Pls.’ Mot. for Partial Summ. J., Exs.

8 1-8), which evidence, again, Defendant did not attempt to refute. See Antoninetti, slip op. at

9 19 (evidence of violations rebuts the presumption).

10

Ultimately, the Antoninetti case is consistent with this Court’s holding that “[b]ecause

11 building inspector discretion is bounded by [Title 24], to avoid summary judgment Defendant

12 must show that the architectural elements at issue either: (1) complied with Title 24; or (2) that

13 the building inspector applied a statutory or regulatory exception to the requirements of Title

14 24. Defendant concedes that the measurements are in violation of Title 24,” and failed to

15 present evidence that an unreasonable hardship exception was granted or merited. PSJ Order at

16 30, 31. That is, in the face of evidence that its restaurants were out of compliance with Title

17 24, Defendant cannot stand idle and point to the certificate of occupancy as evidence of

18 compliance. Nothing in the Antoninetti case merits reconsideration of the PSJ Order.

19

E. It Is Appropriate for this Court to Assert Supplemental Jurisdiction Over

Plaintiffs’ State Claims.

20

Given the advanced state of this litigation and the certainty of duplicative and expensive

21

state court litigation should the Court dismiss Plaintiffs’ state claims, retaining supplemental

22

jurisdiction of those claims “would most sensibly accommodate the values of economy,

23

24

25

4

Plaintiffs disagree that this is an accurate statement of the law. Only once a

26 state building code has been certified by the United States Department of Justice would it

create such a presumption. 28 C.F.R. § 36.602. California is currently at the “preliminary”

27 stage of this process. ADA Certification of State Accessibility Requirements (October 1,

2004), available at http://www.dsa.dgs.ca.gov/Access/adacert.htm (accessed September 24,

28 2007).

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1 convenience, fairness, and comity.” See Executive Software N. Am., Inc. v. U.S. Dist. Court,

2 24 F.3d 1545, 1554 (9th Cir. 1994) (internal citations omitted).

3

Defendant has challenged this Court’s supplemental jurisdiction over Plaintiffs’ state

4 claims under 28 U.S.C. § 1367(c)(1) and (2), arguing that the case raises a novel issue of state

5 law and that state claims substantially predominate over federal claims. (Def.’s Sur-Reply at

6 18-20.) Neither provision provides proper grounds for declining supplemental jurisdiction in

7 the present case. In the alternative, even if either provision should apply, the values of

8 economy, convenience, fairness, and comity dictate that supplemental jurisdiction is

9 appropriate.

10

1. This Court is Required to Follow the Ninth Circuit’s Unambiguous Holding

on the State Law Question Defendant Claims is Novel and Complex.

11

Defendant asserts that the question whether intent is a required element of an Unruh

12

claim premised on the ADA is novel and complex and thus provides grounds for this Court to

13

decline supplemental jurisdiction under section 1367(c)(1).5 However, the Ninth Circuit has

14

ruled definitively that a showing of intent is not required under those circumstances. Lentini v.

15

Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004). Although a California appellate court

16

has ruled to the contrary, see Gunther v. Lin, 144 Cal. App. 4th 223, 232 (Cal. Ct. App. 2006),

17

this Court is bound by the holding of the Ninth Circuit. “[T]he conflict internal to the Unruh

18

Act is not novel -- it has been litigated and decided by the Ninth Circuit in Lentini, and this

19

court is legally bound to follow Ninth Circuit authority.” Johnson v. Barlow, 2007 WL

20

1723617, at * 2 (E.D. Cal. 2007) (citing Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir.

21

2001) (emphasis in original)); see also Pooshs v. Altria Group, Inc., 331 F. Supp. 2d 1089,

22

1094 (N.D. Cal. 2004) (“To the extent that there is any conflict between the California Court of

23

Appeal and the Ninth Circuit, this court must follow [the Ninth Circuit] where it is

24

applicable.”).

25

26

27

5

Defendant also appears to argue that the question at issue in Sanford plays a

similar role. However, as explained above, that question does not arise in this litigation. See

28 supra at 3-4.

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1

Ultimately, whether the Court follows Gunther or Lentini, the analysis is straightforward

2 and the question, neither novel nor complex. As this Court observed during oral argument on

3 the Motion for Partial Summary Judgment, this no different from “any other common law or

4 statutory claim that arises under state law where a federal appeals court has spoken one way

5 and the state appeals court speaks another way and then the Court reads those cases and makes

6 some determination.” (Tr. of Proceedings (May 17, 2007) at 19.) Indeed, Judge Karlton of the

7 Eastern District took this approach in Wilson v. Haria and Gogri Corp., analyzing Lentini and

8 Gunther and the underlying statute and concluding that intent was not required. 479 F. Supp.

9 2d 1127, 1135-41 (E.D. Cal. 2007). In so doing, that court noted that “the issue of state law

10 presented by the instant action is not particularly novel or complex in light of the

11 overwhelming body of case law finding that proof of intent is not required.” Id. at 1138 n.15;

12 see also Hannah v. W. Gateway Reg’l Recreation Park & Dist., No. CIV S-06-571 LKK/DAD,

13 2007 WL 2795769, at *2 (E.D. Cal. Sept. 25, 2007) (“[T]he issues presented by plaintiff’s state

14 law claims are neither novel nor complex: the issue of whether intent is required to obtain

15 damages for disability discrimination under the Unruh Act has already been extensively

16 litigated and ruled upon by courts. . . . The fact that there is now an outlier case in an otherwise

17 uniform body of case law does not transform an old issue into a ‘novel’ one.”); Johnson, 2007

18 WL 1723617, at *2 (“This conflict does not represent the sort of ‘novel and complex issue of

19 unresolved state law’ contemplated by 28 U.S.C. § 1367(c)(1).”); Schwarm v. Craighead, 233

20 F.R.D. 655, 659 (E.D. Cal. 2006) (“Courts have considered claims to be complex when they

21 address issues of first impression that are numerous or of constitutional magnitude.”)

22

Section 1367(c)(1) does not provide grounds to decline supplemental jurisdiction.

23

2. State Claims Do Not Predominate Over Federal Claims.

24

The state and federal claims in this case are thoroughly intertwined, and will require

25 much of the same evidence and legal analysis. State claims thus in no way predominate over

26 federal claims.

27

28

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1

Plaintiffs bring claims under the federal Americans with Disabilities Act, and two state

2 statutes, Unruh and the CDPA. Because this case addresses barriers to individuals who use

3 wheelchairs at a chain of restaurants, it will largely require analysis of the accessibility codes

4 that each of those statutes makes applicable to places of public accommodation: under the

5 ADA, the Department of Justice Standards for Accessible Design (“DOJ Standards”), 28

6 C.F.R. pt. 36, app. A; and under Unruh and the CDPA, Title 24 (for stores built since

7 December 31, 1981) or “ANSI A117.1-1961: American National Standard Specifications for

8 Making Buildings and Facilities Accessible to and Usable by, The Physically Handicapped”

9 (“ANSI-1961”) (for stores built between July 1, 1970 and December 31, 1981). See People ex

10 rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983). The way that

11 these codes apply to new, altered, and existing buildings is described above. See supra at 3-4;

12 see also Moeller, 220 F.R.D. at 606-07.

13

Defendant argues that state claims substantially predominate over federal claims in this

14 case because California access regulations will affect the type and quantum of evidence at trial.

15 (Def.’s Sur-Reply at 19.) However, analysis of most if not all of the restaurants at issue in this

16 litigation will require application of both state and federal law, so both sets of claims will have

17 “a significant impact at to the facts at issue.” (See id.) For example, Taco Bell restaurants

18 built after January 26, 1993, are required to comply with both the DOJ Standards and Title 24.

19 All of the restaurants built between July 1, 1970 and January 26, 1993 were altered in some

20 way after 1992. In those stores, the entire facility must comply with the applicable versions of

21 Title 24 or ANSI-1961 in effect when they were constructed, and the altered portions (and

22 potentially the path of travel and restrooms) must comply with the alterations provisions of the

23 ADA, 42 U.S.C. § 12183(a)(2), and Title 24, see, e.g., Title 24 (1981) §§ 2-105(b)(11)(A)(5),

24 (B)(4); Title 24 (2002) §§ 101.17.11; 1134B.1. Finally, all of the stores built before July 1,

25 1970 were altered after 1992. Those stores are subject to the ADA’s readily achievable

26 provision, 42 U.S.C. § 12182(b)(2)(A)(iv), and the alterations provisions of the ADA and Title

27 24.

28

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1

Underscoring the appropriateness of supplemental jurisdiction in this case is the fact that,

2 although the standards have evolved over the years and some state and federal standards differ,

3 in many cases, the standards imposed by the state guidelines since 1981 or even 1970 are

4 identical to those of the federal guidelines. For example, the minimum width of a door is

5 consistent from the earliest state standards, ANSI-1961 § 5.3.1 (requiring 32 inch minimum),

6 through the DOJ Standards, id. § 4.13.5 (same), to the most recent state standards, Title 24

7 (2002), § 1133B.1.1.1.1 (same). The same is true of the maximum permissible slope of a

8 sidewalk. See ANSI-1961 § 4.2.1 (limiting the slope of walks to no more than 5%); DOJ

9 Standards § 4.3.7 (same); Title 24 (2002) § 1133B.5.1 (same). Such basic building blocks of 10 restaurant access as clear floor space,6 reach range,7 and interior door force8 have been subject

11 to the same standards under Title 24 -- for more than 20 years -- and the DOJ Standards for the

12 last 14 years. Thus, far from state law predominating over federal, the two standards are

13 intertwined in most restaurants, and for many elements a single evidentiary determination will

14 serve to demonstrate noncompliance with both standards.

15

“The mere fact that a plaintiff’s state claims outnumber his federal claims, without more,

16 is insufficient to satisfy the ‘substantially predominate’ standard. Economy and convenience

17 would be poorly served by severing the state law claims solely on this basis.” LiveOps, Inc. v.

18 Teleo, Inc., No. C05-03773 MJJ, 2006 WL 83058, at *4 (N.D. Cal. Jan. 9, 2006) (citing

19 Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 790 (3rd Cir.1995)). Similarly, given the

20 extensive overlap of state and federal claims here, economy and convenience would be equally

21 poorly served by declining supplemental jurisdiction.

22

* * *

23

24

6

Compare Title 24 (1984) § 2-1722(a) (requiring 30 inches by 48 inches) with

Title 24 (2002) § 1118B.4.1 (same) and DOJ Standards § 4.2.4.1 (same).

25

7

Compare Title 24 (1981) § 2-1722(c)-(d) (minimum 48 inches for front

26 approach and 54 inches for side approach) with Title 24 (2002) §§ 1118B.5 - .6 (same) and DOJ Standards §§ 4.2.5 - 4.2.6 (same).

27

8

Compare Title 24 (1981) § 2-3303(l)(4) (maximum five pounds) with Title 24

28 (2002) § 1133B.2.5 (same) and DOJ Standards § 4.13.11(2)(b)(same).

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1

Where none of the exceptions in section 1367(c) apply, supplemental jurisdiction is

2 mandatory. Executive Software, 24 F.3d at 1556 (“[U]nless a court properly invokes a section

3 1367(c) category in exercising its discretion to decline to entertain pendent claims,

4 supplemental jurisdiction must be asserted.”) Since neither of the section 1367(c) grounds

5 asserted by Defendant apply in this case, this Court has supplemental jurisdiction of the

6 pendent state law claims.

7

3. Even If this Court Should Hold That Section 1367(c)(1) or (2) Applies, it

Should Exercise its Discretion to Retain Supplemental Jurisdiction of

8

Plaintiffs’ State Claims.

9

Even if the Court should determine that one of the section 1367(c) categories applies,

10 supplemental jurisdiction is still appropriate here. That section provides that “district courts

11 may decline to exercise supplemental jurisdiction” if one of its provisions applies. 28 U.S.C.

12 § 1367(c) (emphasis added). As this Court has held, “[h]aving identified that a claim falls into

13 a [section 1367(c)] category, the exercise of discretion ‘is informed by whether remanding the

14 pendent state claims comports with the underlying objective of most sensibly accommodating

15 the values of economy, convenience, fairness, and comity.’” LiveOps, 2006 WL 83058, at *4

16 (quoting Executive Software, 24 F.3d at 1557 (internal citations omitted)).

17

In this case, the values of economy, convenience, fairness, and comity favor retention of

18 supplemental jurisdiction.

19

Central to the application of these values here is the fact that, should this Court dismiss

20 Plaintiffs’ state law claims, Plaintiffs will file those claims in state court. In exercising

21 discretion, a district court is to take into account the fact that dismissal under section 1367(c)

22 would result in parallel proceedings in state and federal court. Borough of West Mifflin, 45

23 F.3d at 787. The Ninth Circuit “frequently has upheld decisions to retain pendent claims on the

24 basis that returning them to state court would be a waste of judicial resources.” Imagineering,

25 Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1309 (9th Cir. 1992) (citing Schneider v. TRW, Inc.,

26 938 F.2d 986, 994 (9th Cir. 1991)).

27

28

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1

The present case has been actively litigated for almost five years, involving discovery of

2 hundreds of thousands of pages of documents, surveys of over 220 restaurants by a court-

3 appointed Special Master, the exchange of hundreds of pages of legal and factual analysis by

4 each party concerning the alleged violations, multiple depositions, and extensive motions

5 practice, including two fully briefed and decided motions concerning class certification, and

6 three summary judgment motions. Were Plaintiffs forced to file their state claims in state

7 court, it would commence a parallel proceeding that would address the same stores as the

8 present case, and duplicate much of the work the parties have accomplished here. Most if not

9 all of the restaurants at issue would be evaluated by this Court under federal law, and then the

10 same restaurants would be evaluated by the state court under both state law and -- because

11 Unruh and CDPA violations can be predicated on ADA violations -- under federal law as well.

12 While some of the evidence developed in this case might be admissible in a state court

13 proceeding, the parties would start from scratch procedurally, and the overlap and duplication

14 of the work of the two courts would be an enormous waste.

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 claim

19

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 his

20

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, 2007 WL 1723617, at * 5; see also Hannah, 2007 WL 2795769, at *2 (“[I]t would

23 hardly be economical or convenient to conduct a trial on all the elements of plaintiff’s ADA

24 claim in federal court but then require plaintiff to seek relief separately on the issue of damages

25 in state court”); Pinnock v. Solana Beach Do It Yourself Dog Wash, Inc., No. 06cv1816 BTM

26 (JMA), 2007 WL 1989635, at *3 (S.D. Cal. July 3, 2007) (holding, in a case involving ADA,

27 Unruh and CDPA claims, that “the Court’s exercise of supplemental jurisdiction would best

28

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1 advance economy, convenience, fairness, and comity. . . . . To [decline supplemental

2 jurisdiction] would create the danger of courts rushing to judgment, increased litigation costs,

3 and wasted judicial resources.”); Yates v. Belli Deli, No. C07-01405 WHA, 2007 WL

4 2318923, at *7 (N.D. Cal. Aug. 13, 2007) (holding, in a case involving ADA, Unruh and

5 CDPA claims, that “[i]t would be inefficient to try the claims separately, so the exercise of 6 supplemental jurisdiction is appropriate.”)9

7

Because of the certainty of waste and duplication should this Court dismiss the state

8 claims -- and especially in light of the advanced stage of this litigation -- Plaintiffs respectfully

9 urge this Court to retain supplemental jurisdiction.

10

11

12

13

14

15

16

17

18

19

9

Although Defendant has cited to cases that decline supplemental jurisdiction

over Unruh and CDPA claims, in each case, a comparison of the case number and the date of

20 the decision reveals cases that have been pending approximately one year, in many instances less. See Morgan v. El Torito Rests., Inc., No. 07 CV 0223 DMS (BLM) (S.D. Cal. July 11,

21 2007); Morgan v. Am. Stores Co. LLC, No. 06 CV 2437 JM (RBB) (S.D. Cal. June 29, 2007); Cross v. Plaza Camino Real, No. 07-CV-318-IEG (RBB) (S.D. Cal. June 22, 2007) (S.D. Cal.

22 June 22, 2007); Equal Access Ass’n Suing on Behalf of Roy Davis Gash v. PFS, LLC, No. 07 CV 158 WQH (LSP), 2007 U.S. Dist. LEXIS 40672 (S.D. Cal. June 4, 2007); Kohler v. Mira

23 Mesa Marketplace W., LLC, No. 06cv2399 WQH (POR), 2007 WL 1614883 (S.D. Cal. June 4, 2007); Wilson v. PFS, LLC, No. 06CV1046 WQN (NLS), 493 F.Supp.2d 1122 (S.D. Cal.

24 2007); Cross v. Boston Market Corp., No. 07cv486 J (LSP) (S.D. Cal. May 29, 2007); Cross v. Pac. Coast Plaza Investments, L.P., No. 06 CV 2543 JM (RBB), 2007 WL 951772 (S.D. Cal.

25 Mar. 6, 2007); Triple AAA Ass’n for Children with Developmental Disabilities v. Del Taco Inc., No. 06cv2199 DMS (WMC) (S.D. Cal. Feb. 26, 2007).

26 Plaintiffs also submit that these cases improperly disregarded the potential for
27 duplication and waste when a plaintiff is forced to pursue similar claims in parallel state and federal proceedings.

28

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1

Conclusion

2

For the reasons set forth above, Plaintiffs respectfully request that this Court deny

3 Defendant’s Motion for Reconsideration.

4 Respectfully submitted,

5

6

FOX & ROBERTSON, P.C.

7

8

BY: /s/ Amy F. Robertson

Amy F. Robertson

9

Counsel for Plaintiffs Francie Moeller, Edward

10

Muegge, Katherine Corbett and Craig Thomas

Yates

11

12 Date: October 5, 2007

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:02-cv-05849-PJH Document 335 Filed 10/12/2007 Page 1 of 6

1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 RICHARD H. HIKIDA (SBN 196149) 3161 Michelson Drive, Suite 1000
3 Irvine, California 92612 Telephone: (949) 732-6500
4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com; hikidar@gtlaw.com 5
6 Attorneys for Defendant TACO BELL CORP.

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10 FRANCIE E. MOELLER, et al.,
11 Plaintiffs,
12 vs.
13 TACO BELL CORP.,
14 Defendant.
15
16

Case No. C 02 5849 MJJ ADR
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TACO BELL CORP.’S MOTION FOR RECONSIDERATION OF AUGUST 8, 2007 ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
[Appendix of Case Authorities filed concurrently herewith]

17

DATE:

n/a [submitted]

TIME:

n/a [submitted]

18

CTRM:

11

JUDGE: Hon. Martin J. Jenkins

19

20

21

22

23

24

25

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 A. Plaintiffs Have Failed to Successfully Distinguish the Sharp Decision.

3

Plaintiffs’ attempt to distinguish the decision in Sharp v. Rosa Mexicano, D.C., LLC, 2007 WL

4 2137301 (D.D.C. July 26, 2007) is unavailing. First and foremost, plaintiffs’ opposition avoids the key

5 question of whether the alleged disability discrimination is reasonably expected to recur. (Opp’n at

6 6:14, 7:18, 9:1.) Plaintiffs ignore the fact that the Sharp decision, which relies on two district court

7 decisions within the Ninth Circuit, makes it clear that structural modifications “’are unlikely to be

8 altered in the future.’” 2007 WL 2137301, at *4 (quoting Indep. Living Resources v. Oregon Arena

9 Corp., 982 F. Supp. 698, 774 (D. Or. 1997)); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31

10 (C.D. Cal. 2005). Plaintiffs have failed to distinguish this key holding, which is telling.

11

Second, the purported evidence of “frequent change”, i.e., Taco Bell’s legal brief,1 is not a

12 judicial admission as addressed in Taco Bell’s initial memorandum. Indeed, plaintiffs concede that no

13 such judicial admission exists. (Opp’n at 8:24-25.) Any evidentiary value of Taco Bell’s legal brief,

14 which Taco Bell disputes, is legally trumped as a matter of law by Sharp’s holding that structural

15 modifications “’are unlikely to be altered in the future.’” 2007 WL 2137301, at *4.

16

Moreover, plaintiffs recently argued in support of their bellwether trial proposal that “many of

17 the elements may not have changed” over the “short period of time between the beginning of the

18 damages statute of limitations (December 2001) and the survey of the restaurants (2004 to 2005).”

19 (Joint Status Conference Statement at 7:25-27 [docket #323].) Taco Bell submits that given plaintiffs

20 have been successful in obtaining essentially the form of relief they sought by making such statement to

21 the Court, plaintiffs are judicially estopped from maintaining their former position that elements are

22 subject to frequent change. New Hampshire v. Maine, 532 U.S. 747, 750-51 (2001) (addressing judicial

23 estoppel factors). Plaintiffs cannot have it both ways. They cannot take the position that injunctive

24 relief is necessary because of frequent changes and at the same time argue that alleged changes aren’t so

25 frequent after all. Plaintiffs would derive an unfair advantage or impose an unfair detriment on Taco

26 Bell if they are not estopped. Id. at 751.

27

Third, the contention that “many” of the alleged accessibility barriers have not been remedied is

28 1

Plaintiffs conveniently ignore that this Court did not rely upon Jamie de Beers’s declaration.

1

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1 misleading given that the vast majority of the 180 stores at issue in plaintiffs’ Motion have been

2 modified. That plaintiffs no longer attempt to analyze the percentage of stores that have been modified

3 as to the issues raised in plaintiffs’ Motion is the most telling indication that plaintiffs, themselves,

4 believe any request for injunctive relief is now moot.

5

Fourth, plaintiffs’ reliance upon alleged events occurring in Colorado Cross-Disability Coalition

6 v. Taco Bell Corp., No. 97-cv-2135-LTB (D. Colo.) (Opp’n at 5:28-6:3), is, as addressed in Taco Bell’s

7 Sur-Reply, a transparent attempt to bias the Court against Taco Bell. (Sur-Reply of 5/10/07 at 14:8-22

8 [docket #280]; Fed. R. Evid. 402, 403.) If the Court relied on such information, which was not cited by

9 the Court in its August 8, 2007 decision, then the Court committed clear error by resolving a credibility

10 question that should have been resolved at trial.

11

Fifth, plaintiffs make no attempt to distinguish Neff v. American Dairy Queen Corp., 58 F.3d

12 1063 (5th Cir. 1995) (holding that a restaurant franchisor did not “operate” franchised restaurants), cert.

13 denied, 516 U.S. 1045 (1996).

14

Sixth, plaintiffs’ criticism of Taco Bell for voluntarily providing updated information as to the

15 status of a mere four stores out of the 180 stores at issue in plaintiffs’ Motion (Opp’n at 5:20-28) is not

16 well taken, and ignores the undisputed expense (over $6 million) spent to modify the remainder.

17

Seventh, the absence of state law damages claims in Sharp is irrelevant for purposes of whether

18 injunctive relief claims should have been dismissed as moot. Indeed, Taco Bell’s position is that even

19 plaintiffs’ state law injunctive relief claims should be dismissed as moot.

20

Finally, plaintiffs’ criticism of the purported delay in making modifications, (Opp’n at 9:18), is

21 amazing given plaintiffs’ counsel’s recent threat to characterize such modifications as spoliation.

22 (Hikida Decl. of 5/10/07 ¶ 5 [docket #284].) Plaintiffs can’t have it both ways and should be estopped

23 especially given their role in stipulating to the Special Master survey procedure, which took more than a

24 year and is still being addressed to date. (Order of 9/24/07 [docket #326].) To sum up, the analysis in

25 Sharp as to structural modifications being unlikely to be altered in the future remains good law, is not an

26 aberration, and is directly applicable here. Plaintiffs’ analysis suggests nothing to the contrary.

27 B. The Applicability of the Readily Achievable Barrier Removal Standard to State Law

28

Claims Should Be Decided in the First Instance by the California Courts.

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1

It is axiomatic that a judge is the sole arbiter of the law and its application to the facts. Pinal

2 Creek Group v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1043 (D. Ariz. 2005). Thus, plaintiffs’

3 assertion that they are not seeking to apply the “readily achievable” legal standard to their application of

4 claims brought under state law, (Opp’n at 3:3-5), is insignificant.

5

Plaintiffs admit in their opposition that “a showing that barrier removal in an existing facility is

6 ‘readily achievable’ constitutes a violation of the ADA and thus now Unruh and the CDPA.” (Opp’n at

7 4:10-12) (emphasis added). Thus, for stores that were constructed before January 26, 1993, viewed as

8 existing facilities, plaintiffs are arguing that the readily achievable standard applies to establish liability

9 under the Unruh Act and the CDPA. Thus, plaintiffs are freely relying upon the readily achievable

10 standard in order to demonstrate Taco Bell’s liability under not only federal law (i.e., the ADA), but also

11 under California law (e.g., the Unruh Act and the CDPA). Presumably, plaintiffs are drawing a

12 distinction between cases involving the ADAAG versus Title 24 of the California Building Standards

13 Code. As courts have noted, however, the ADAAG provides “valuable guidance” “for determining

14 whether an existing facility contains architectural barriers.” Pascuiti v. New York Yankees, 87 F. Supp.

15 2d 221, 226 (S.D.N.Y. 1999). Plaintiffs fail to address, however, what weight, if any, Title 24 provides

16 “for determining whether an existing facility contains architectural barriers” particularly given that

17 California accessibility law expressly provides for exceptions to rigid adherence to the literal 18 requirements of Title 24.2 Indeed, Title 24 expressly contains a disproportionality analysis for 19 alterations that is virtually identical to the disproportionality analysis applicable under the ADA.3 Thus,

20 the question is to what degree, if any, did the California Legislature incorporate the cost-benefit analysis

21
2

Compare Cal. Health & Safety Code § 19957 (In cases of practical difficulty, unnecessary

22 hardship, or extreme differences, a building department responsible for the enforcement of this part may

23

grant exceptions to the literal requirements of the standards and specifications required by this part . . .”) (emphasis added) with Pascuiti v. New York Yankees, No. 98 CIV. 8186(SAS), 1999 WL 1102748, at *4

24 (S.D.N.Y. Dec. 6, 1999) (noting the cost/benefit analysis for analyzing “undue hardship” employment disability discrimination claims under the federal Rehabilitation Act and the “similar approach” for Title

25 III ADA claims regarding the removal of an architectural barrier).

3

Compare Title 24, § 1134B.2.1, exception 1, with 28 C.F.R. § 36.403(a) (“An alteration . . . shall

26 be made so as to ensure that . . . the path of travel to the altered area and the restrooms . . . are readily

27

accessible to and usable by individuals with disabilities . . . unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration.”); 28 C.F.R. § 36.403(f)(1) (“Alterations . . . will

28 be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.”) (emphasis added).

3

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1 of the readily achievable barrier removal standard, a key component of the compromise struck in the

2 ADA’s passage, by amending the Unruh Act and the CDPA in 1992 and 1996, respectively. Taco Bell

3 submits that plaintiffs failed to answer that question and made no attempt to engage in any analysis of

4 the legislative history of such amendments. Taco Bell submits that Judge Burrell correctly exercised

5 restraint in Sanford v. Del Taco, Inc., 2006 WL 2669351, at *5 (E.D. Cal. Sept. 18, 2006), by refusing to

6 decide this state law question. Given that plaintiffs have expressed that “a showing that barrier removal

7 in an existing facility is ‘readily achievable’ constitutes a violation of the ADA and thus now Unruh and

8 the CDPA,” (Opp’n at 4:10-12) (emphasis added), that legal question should be decided in the first

9 instance by the California courts.

10 C. Supplemental Jurisdiction Should Not Be Exercised.

11

In Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904 (7th Cir. 2007) (Posner, J.), the

12 Seventh Circuit recently affirmed the dismissal of a state law claim because of the existence of 13 unresolved issues of state law4 even though the state law claim had been tried once before in federal

14 district court and had to be tried again on remand, which suggested substantial federal judicial and

15 party resources had already been expended to resolve the state law claim. Id. at 906-08.

16

In Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir.), cert. denied, 501 U.S.

17 1218 (1991), the Second Circuit held, “The judicial economy factor should not be the controlling factor,

18 and it may be appropriate for a court to relinquish jurisdiction over pendent claims even where the court

19 has invested considerable time in their resolution.” Id. at 564 (emphasis added); see also Dunton v.

20 County of Suffolk, 729 F.2d 903, 910 (2d Cir. 1984) (“Even if the federal claims are discovered to be

21 patently meritless only after the trial begins, once that discovery is made the state claims must be

22 dismissed along with the federal ones.”) (emphasis added).

23

In Farley v. Williams, No. 02-CV-0667C(SR), 2005 WL 3579060 (W.D.N.Y. Dec. 30, 2005)

24 (Curtin, J.), the district court, citing the Kidder, Peabody decision, held that:

25

26 4

Judge Posner’s analysis implicitly relied upon the “compelling” nature of an unresolved issue of

27

state law, 28 U.S.C. § 1367(c)(1), Williams Electronics, 479 F.3d at 907, which the Ninth Circuit has recognized as reason in and of itself to remand pendent claims. Executive Software North America v.

28 United States District Court, 24 F.3d 1545, 1557 n.9 (9th Cir. 1994). Plaintiffs rely heavily upon the Executive Software decision in their opposition. (Opp’n at 10:22-11:2; 15:2-4; 15:16.)

4

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“Although the case has been pending with this court for some time, and considerable

1

effort has been expended to bring the proper parties before the court and to oversee the

scheduling of discovery, very little of the court’s time or resources have been devoted to

2

the resolution of these claims.”

3 Id. at *6 (emphasis added). Similarly, to date, this Court has refrained from deciding whether to apply

4 Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006) to this case. Thus, the reality is that the

5 Court has not expended a significant effort to resolve pending state law questions.

6

Plaintiffs’ assertions that the ADA and state claims are “thoroughly intertwined” and that “much

7 of the same evidence” shall be required in trying them are misleading. In Martinez v. Longs Drug

8 Stores, Inc., 2005 WL 3287233 (E.D. Cal. Nov. 28, 2005) (Levi, J.), the district court held that sixteen

9 unsuccessful accessibility claims were not related to the five on which the ADA plaintiff succeeded

10 because “each is a distinct alleged violation requiring separate evidence”. Id. at *3 (emphasis added).

11 Similarly, in Hooper v. Calny Inc., No. CIV-S-03-0167 DFL/GGH, slip op. (E.D. Cal. Apr. 25, 2005)

12 (Levi, J.), Judge Levi, in awarding prevailing party attorney’s fees to the ADA plaintiff, held that each

13 of the 24 alleged violations “represent different and unrelated ‘objectives’ or ‘claims’” and “are

14 premised on different facts and require the application of different sections of the [ADAAG] and the

15 CBC to determine liability.” Id. at 10:18-23 (emphasis added); see also White v. GMRI, Inc., No. CIV.

16 S-04-0465 DFL CMK, slip op. at 12:10-14 (E.D. Cal. Aug. 22, 2005) (Levi, J.); White v. Save Mart

17 Supermarkets, 2005 WL 2675040, at *4 (E.D. Cal. Oct. 20, 2005) (England, J.). In addition, plaintiffs

18 effectively admitted to the requirement of separate evidence in their portion of the Joint Case

19 Management Statement filed on January 19, 2007 by admitting that whether the California access

20 regulations are applicable in this case “will have a significant effect on the amount and type of discovery

21 necessary to try the case.” (JCMS filed 1/19/07 at 4, ¶ 6 [docket #249]) (emphasis added).

22

Finally, “no reasons have been advanced as to why the litigation could not proceed in state court

23 with very little duplication of effort.” Farley, 2005 WL 3579060, at *6. “The discovery done here can

24 be used there.” Applewhite v. Jernberg Industries, Inc., 1995 WL 733414, at *2 (N.D. Ill. Dec. 5, 1995).

25 Plaintiffs’ fear of duplication of effort amounts to pure speculation and nothing more.

26

GREENBERG TRAURIG, LLP

27 Dated: October 12, 2007 28
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By: /s/ RICHARD H. HIKIDA Attorneys for Defendant TACO BELL CORP.
5

 
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1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

FRANCIE E. MOELLER, et al., 13

Plaintiffs, 14

15 vs.

16 TACO BELL CORP.,

17

Defendant.

18

CASE NO. C 02-5849 MJJ ADR

TACO BELL CORP.’S RESPONSE TO PLAINTIFFS’ SUBMISSION OF RECENT DECISION PURSUANT TO LOCAL RULE 7-3(D) [DOCKET #339]

DATE: TIME: CTRM: JUDGE:

N/A [SUBMITTED] N/A N/A Hon. Martin J. Jenkins

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

On October 25, 2007, plaintiffs submitted to the Court a recent Eleventh Circuit decision entitled

3 Sheely v. MRI Radiology Network, P.A., __ F.3d __, 2007 WL 3087215 (11th Cir. Oct. 24, 2007) (2-1

4 decision) (Marcus, J.) [docket #339], as a decision allegedly relevant to the issue of mootness raised in

5 Taco Bell Corp.’s motion for reconsideration of the August 8, 2007 order granting in part plaintiffs’

6 motion for partial summary judgment. Such majority decision is not only distinguishable, if anything, it

7 actually supports Taco Bell’s position that the Court erred in granting partial summary judgment in

8 favor of plaintiffs.

9 I. The Majority Decision in Sheely v. MRI Radiology Network, P.A. Is Distinguishable.

10

In Sheely, the plaintiff, who is legally blind and aided by a guide dog, commenced a Title III

11 ADA action against an entity that owned and operated a diagnostic imaging facility at which her minor

12 son had an appointment to receive an MRI. The plaintiff accompanied her minor son to the facility.

13 The plaintiff was not permitted to take her dog beyond the main waiting room even though other parents

14 who wished to accompany their minor children were allowed to accompany their children to a holding

15 area at the end of a hallway beyond the main waiting room. At the time of the incident, the defendant

16 had an unwritten “policy” that service animals were permitted only in the main waiting room area. Id. at

17 *2. The record also indicated that a similar incident involving an alleged service animal had previously

18 occurred at the same facility, and that the service animal issue had arisen previously. Id. at *3.

19

After the federal ADA action was filed, the defendant moved for summary judgment almost nine

20 months into the lawsuit and announced that it had implemented a new, written service animal policy two

21 days earlier that rendered all of the plaintiff’s claims moot. Id. at *3.

22

The plaintiff cross-moved for summary judgment. The district court held that the plaintiff’s

23 claims for declaratory and injunctive relief under the ADA were moot because of the defendant’s

24 voluntary cessation of the allegedly wrongful conduct. Id. at *4. On appeal, the panel majority reversed

25 and remanded the mootness ruling.

26

The panel majority held that the district court failed to acknowledge or apply the “basic factors”

27 that the Eleventh Circuit and the U.S. Supreme Court found to be important in determining mootness

28

1
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1 wherein a private defendant has voluntarily ceased the conduct at issue. The Eleventh Circuit then

2 proceeded to announce three specific factors, without citation to any specific case authority as follows:

3

(1) whether the challenged conduct was isolated or unintentional, as opposed to a

4

continuing and deliberate practice; (2) whether the defendant’s cessation of the offending

5

conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3)

6

whether, in ceasing the conduct, the defendant has acknowledged liability.”

7 Id. at *6 (emphasis added). Applying the foregoing factors to the “undisputed record,” id. at *6, which

8 the panel majority took in the light most favorable to the plaintiff, id. at *1, even though the plaintiff

9 cross-moved for summary judgment, id. at *4, the panel majority found that the case was not moot, id.

10 at *6.

11

First, the panel majority found that the “undisputed” testimony of the defendant’s employees

12 strongly suggested that the plaintiff’s treatment was the result of a years-long policy created by the

13 defendant’s owner, communication through the defendant’s ranks, and enforced on multiple occasions,

14 sometimes vehemently. Id. at *7. Thus, the panel majority, in essence, held that the defendant’s

15 unwritten policy to exclude service animals from the facility at issue was a deliberate or intentional

16 practice to discriminate against visually-impaired persons.

17

Second, the panel majority found that the defendant failed to even make any profession not to

18 revive the challenged practice. Id. at *8. This omission was important because the panel majority

19 recognized that a defendant’s assertion that it has no intention of reinstating the challenged practice is

20 “one of the factors to be considered in determining the appropriateness of granting an injunction against

21 the now-discontinued acts.” Id. at *6 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633

22 (1953)). The panel majority also noted that the record “does suggest” that the defendant was motivated

23 by a desire to avoid liability. Id. at *8.

24

Third, the panel majority held that the defendant’s failure to acknowledge wrongdoing ensured

25 that a live dispute between the parties remained. Id. at *8. The panel majority noted that the defendant

26 had created a “discretionary policy” and might revert to the old policy. Id. at *10.

27

Sheely is distinguishable. First, unlike the circumstances in Sheely wherein the Eleventh Circuit

28 made improper findings of fact on appeal, this Court has made no factual finding that Taco Bell has a

2
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1 policy to discriminate against mobility-impaired customers. Indeed, plaintiffs oppose the application of

2 a legal standard premised upon intentional discrimination notwithstanding Gunther v. Lin, 144 Cal.

3 App. 4th 223, 50 Cal. Rptr. 3d 317 (Cal. Ct. App. 2006) (holding that intentional discrimination was

4 required to recover under the Unruh Act). Second, unlike the defendant in Sheely who apparently made

5 no disclaimer or profession not to revive its challenged practice, Taco Bell has affirmatively asserted in

6 its various papers submitted to the Court that it has no intention of subjecting itself to future litigation by

7 reinstalling the offending store elements such as allegedly inaccessible queue lines, entrance doors, and

8 indoor seating. (See, e.g., Def.’s Sur-Reply of 5/10/07 at 11:16-19; 13:14-16; 14:4-6; 14:11-13

9 (“Obviously, Taco Bell has engaged in expensive modifications and has no desire whatsoever to

10 encounter yet another ADA class action.”) [docket #280]; Mot. Reconsideration of 9/21/07 at 13:6-7;

11 13:14-23 [docket #319]; Reply in Supp. of Mot. Reconsideration of 10/12/07 at 1:14-15, 2:24-26

12 [docket #335]. Third, unlike the circumstances in Sheely, the facts at hand indicate long-term

13 modifications made to fixtures at significant expense. Thus, the concern expressed in Sheely that the

14 defendant in that case might revert back to its former unwritten policy excluding service animals has no

15 application in the instant action. Plaintiffs’ reliance upon Sheely is akin to comparing apples and

16 oranges.

17 II. The Sheely Majority Opinion and Its Dissenting Opinion Both Support the Proposition

18

that This Court Erred by Granting Partial Summary Judgment in Plaintiffs’ Favor.

19

The dissenting opinion’s analysis as well as the panel majority’s recognition that a defendant’s

20 assertion that it has no intention of reinstating the challenged practice is “one of the factors to be

21 considered in determining the appropriateness of granting an injunction against the now-discontinued

22 acts,” Id. at *6 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)), both suggest the

23 flaw in this Court’s granting of partial summary judgment in favor of plaintiffs.

24

The dissenting opinion in Sheely correctly points out that improper fact-finding and credibility

25 determinations by the panel majority affected the outcome in Sheely. Significantly, the dissenting

26 opinion in Sheely noted that the panel majority had engaged in improper fact-finding on appeal by

27 finding that the defendant was likely to renew its challenged conduct in the future, a factual

28 determination that was within the sole province of the district court. Sheely, 2007 WL 3087215, at *24.

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1 In particular, the dissenting opinion noted that the panel majority effectively granted summary judgment

2 to the plaintiff on the issue of mootness by denying the defendant the opportunity to resolve in its favor

3 disputed issues of fact regarding its new policy. Id. at *24. For example, whether the challenged

4 conduct was the result of a “years-long policy” or an isolated incident is a disputed issue of fact. Id. at

5 *25. In addition, the dissenting opinion noted that the panel majority made a credibility determination

6 regarding the defendant’s motivation for implementing a new policy toward service animals. Id. at *25.

7 The dissenting opinion viewed the evidence as to defendant’s motivation as suggesting a genuine

8 motivation for enacting the new policy (i.e., to come into compliance with the ADA). Id. at *25-*26.

9 The dissenting opinion viewed the defendant’s motivation as an issue of fact to be resolved by the

10 district court. Id. at *26. Further, the dissenting opinion noted that the panel majority questioned the

11 sincerity of the defendant’s intentions to adhere to its new policy, which constituted a credibility finding

12 within the sole province of the trial court. Id. The dissenting opinion suggested that the case should

13 have been remanded with instructions to “either try the case or, at a minimum, conduct an evidentiary

14 hearing to make findings of fact on the issue of future harm.” Id. at *25.

15

In United States v. W. T. Grant Co., 345 U.S. 629 (1953), the seminal U.S. Supreme Court

16 decision on the voluntary cessation exception to the mootness doctrine, the U.S. Supreme Court held

17 that despite the voluntary cessation of allegedly illegal conduct, “[t]he case may nevertheless be moot if

18 the defendant can demonstrate that ‘there is no reasonable expectation that the wrong will be 19 repeated.’”1 Id. at 633 (emphasis added). The Supreme Court went beyond addressing a federal court’s

20 power to hear and determine a case (i.e., mootness) and also addressed a federal court’s power to grant

21 injunctive relief given that injunctive relief was the relief sought in the case. As to the latter power, the

22 Supreme Court clarified that the “moving party must satisfy the court that [injunctive] relief is needed.”

23 Id. “The necessary determination is that there exists some cognizable danger of recurrent violation,

24 something more than the mere possibility which serves to keep the case alive.” Id. (emphasis added).

25

26 1

In County of Los Angeles v. Davis, 440 U.S. 625 (1979), the U.S. Supreme Court clarified the

27

two prongs that must be met before a case can be declared moot: First, if it “can be said with assurance that ‘there is no reasonable expectation . . .’ that the alleged violation will recur” and, second, if

28 “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. at 631.

4

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1 Although the Supreme Court noted that a disclaimer of an intention to revive the alleged wrong is not,

2 alone, sufficient to render a case moot, “it is one of the factors to be considered in determining the

3 appropriateness of granting an injunction against the now-discontinued acts.” Id. (emphasis added).

4

In Sample v. Johnson, 771 F.2d 1335 (9th Cir. 1985), the Ninth Circuit explored the mootness

5 doctrine and, in particular, what must be shown to establish that a plaintiff will likely be injured again.

6 Although the Ninth Circuit noted there had been “scant analysis” on this topic, the Ninth Circuit held,

7 “There must be a ‘demonstrated probability’ that plaintiff will again be among those injured.” Id. at

8 1340. The Ninth Circuit added, “The likelihood of the injury recurring must be calculable and if there is

9 no basis for predicting that any future repetition would affect the present plaintiffs, there is no case or

10 controversy.” Id. “The Supreme Court has stated that plaintiffs must demonstrate that a ‘credible

11 threat’ exists that they will again be subject to the specific injury for which they seek injunctive or

12 declaratory relief.” Id. Significantly, the Ninth Circuit held that regardless of judicial economy or the

13 importance of the question presented, “a court is without jurisdiction if there is not a sufficient

14 likelihood of recurrence with respect to the party now before it.” Id. at 1342. The Ninth Circuit then

15 addressed the degree of probability required to be shown by the plaintiff as to the likely recurrence of

16 injury and held that “demonstrated probability” required “a very significant possibility.” Id. at 1343.

17 Further, the Ninth Circuit squarely placed “the burden for showing a likelihood of recurrence firmly on

18 the plaintiff.” Id. at 1342. In support, the plaintiffs cited City of Los Angeles v. Lyons, 461 U.S. 95

19 (1983), wherein the U.S. Supreme Court emphasized that it is the plaintiff’s burden to demonstrate a

20 case or controversy that would justify equitable relief. Id. at 105. Finally, the Ninth Circuit held that

21 the plaintiff’s burden “can not be met with a merely subjective showing.” 771 F.2d at 1343. “An

22 attestation of plaintiff’s fear that the injury might recur will not suffice to demonstrate the capability of

23 repetition of an injury.” Id. “[T]he ‘essential showing’ is objective, i.e. directly or inferentially

24 statistical.” Id.; City of Los Angeles, 461 U.S. at 107 n.8 (“It is the reality of the threat of repeated

25 injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.”).

26

Thus, the Ninth Circuit’s decision in Sample v. Johnson thoroughly analyzed the mootness

27 doctrine and its interplay with a federal court’s power to impose injunctive relief. Subsequently, the

28 Ninth Circuit noted that the “cognizable danger” that the moving party must demonstrate in predicting

5
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1 the likelihood of future violations must be based on appropriate findings supported by the record.

2 Factors that a district court may consider in making this finding include:

3

“the degree of scienter involved; the isolated or recurrent nature of the infraction; the

4

defendant’s recognition of the wrongful nature of his conduct; the extent to which the

5

defendant’s professional and personal characteristics might enable or tempt him to

6

commit future violations; and the sincerity of any assurances against future violations.”

7 Federal Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989) (emphasis added).

8

Given that Taco Bell was the nonmovant with respect to plaintiffs’ motion for partial summary

9 judgment, all inferences to be drawn from the record should have been drawn in Taco Bell’s favor

10 especially as to the sincerity of Taco Bell’s assurances against future alleged violations, which were

11 supported by evidence of accessibility enhancements costing over $6 million over the past year alone.

12 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non-movant is to

13 be believed, and all justifiable inferences are to be drawn in his favor.”); Shoom, Inc. v. Electronic

14 Imaging Systems of America, Inc., No. C 05-03434 MJJ, 2006 WL 1529983, at *4 (N.D. Cal. June 1,

15 2006) (Jenkins, J.) (“If the pleadings and other submitted materials raise issues of credibility or disputed

16 questions of fact, the court may, in its discretion, order a preliminary hearing to resolve the contested

17 issues. . . . Likewise, where the jurisdictional facts are ‘intertwined with the merits’ of the action, it is

18 preferable that determination of jurisdiction be made at trial.”) (quoting Data Disc, Inc. v. Systems Tech.

19 Assocs., Inc., 557 F.2d 1280, 1285 & n.2 (9th Cir. 1977)). Thus, the Court should not have granted

20 partial summary judgment in favor of plaintiffs because the Court apparently made credibility

21 determinations, weighed evidence, and did not draw all reasonable inferences from the record in Taco

22 Bell’s favor as the nonmovant.

23

24 DATED: November 12, 2007

GREENBERG TRAURIG, LLP

25

26

By /s/

Richard H. Hikida

27

Attorneys for Defendant

TACO BELL CORP.

28

6
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UnitUenidteStdatStesateDisstDriiscttricCtouCroturt For thFeorNtohrteheNronrthDiesrtnricDtisotfricCtaloiforCanliiafornia

1

2

3

IN THE UNITED STATES DISTRICT COURT

4 FOR THE NORTHERN DISTRICT OF CALIFORNIA
5

6 MOELLER ET AL,
7 Plaintiff,
8 v.
9 TACO BELL CORP.,
10 Defendant.
11

No. C02-05849 MJJ ORDER
/

12 The Court has read and considered the parties respective positions, as set forth in their joint and
13 updated case management statements, regarding Plaintiffs' objection to providing supplemental
14 responses to Interogatory #1, and Plaintiffs' objection to Interrogatory #17 and 18. The Court has
15 also reviewed Urhausen v. Longs Drug Stores Cal., 155 Cal. App. 4th 254, 262-266 (Cal Ct. of App.
16 2007). Having considered the arguments of the parties, the Court now enters the following ruling:
17

18 Interrogatory #1: The Court OVERRULES Plaintiffs' objection an finds discovery of information
19 regarding circumstances tending to establish a denial of equal access (compliance) is relevant to the
20 question of liability. As such, Plaintiffs shall supplement their response to Interrogatory No.1 as
21 soon as possible - but no later than March 10, 2008
22

23 Interrogatory #17 and 18: The Court GRANTS, without prejudice, Plaintiffs' objection to these
24 interrogatories. The issue of question of standing and/or damages is not relevant at this juncture of
25 the proceeding. The court has determined that the case will be litigated in phases and informed the
26 parties that the question of liability will be the focus of phase one of the litigation. Accordingly,
27 discovery at this juncture of the proceeding has been tailored to focus on the question of liability.
28 After a determination of the question(s) of liability, with respect to the Bellweather Restaurants, the

Court will take up the question of standing and damages and the information sought in

Case4:02-cv-05849-PJH Document354 Filed01/11/08 Page2 of 2

United States District Court For the Northern District of California

1 Interrogatories #17 and 18 will be relevant. Defendant's reliance upon Urhausen does not support

2 Defendant's current requests for the discovery reflected in Interrogatories 17 and 18. In Urhausen,

3 the California appellate court held that a showing of a denial of equal access is a prerequisite to

4 recovery of damages. Therefore, subsequent to a determination of liability, when the Court takes

5 up the question of damages, Defendant, relying on Urhausen, will have the opportunity to propound

6 and receive answers to Interrogatory #17 and 18.

7

8 IT IS SO ORDERED.

9

10

11 Dated: 12

1/11/2008

MARTIN J. JENKINS UNITED STATES DISTRICT JUDGE

13

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 Case4:02-cv-05849-PJH Document367 Filed03/24/08 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MUELLER ET AL,

No. C02-05849 MJJ

12 13 v.

Plaintiff,

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION

14 TACO BELL CORP.,

15

Defendant.

/

16

17

Before the Court is Defendant Taco Bell’s (“Defendant”) Motion for Reconsideration of the

18 Court’s August 8, 2007 order granting in part Plaintiff’s motion for summary judgment. (Docket

19 No. 319.) Pursuant to Civil Local Rule 7-9(b), the moving party must show the existence of a

20 material difference in fact or law, the emergence of new material facts or a change of law, or a

21 manifest failure by the Court to consider material facts or dispositive legal arguments presented to

22 the Court. See Civ. L.R. 7-9(b). After careful review of Defendant’s Motion, Plaintiff’s Opposition,

23 Defendant’s Reply and other relevant documents in the record, the Court finds that Defendants have

24 not met their burden under Rule 7-9(b). The Court therefore DENIES Defendant’s Motion for

25 Reconsideration.

26 IT IS SO ORDERED.

27

28 Dated: March 21, 2008

MARTIN J. JENKINS UNITED STATES DISTRICT JUDGE

 
 Case 3:02-cv-05849-PJH Document 374 Filed 05/08/2008 Page 1 of 37

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
910 - 16th Street, Suite 610
3 Denver, Colorado 80202
Tel: (303) 595-9700
4 Fax: (303) 595-9705
Email: tfox@foxrob.com
5
LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823
835 Mandana Blvd.
7 Oakland, CA 94610
Tel: (510) 419-0940
8 Fax: (501) 419-0948
Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11 GREENBERG TRAURIG, LLP

Gregory F. Hurley, Cal. Bar No. 126791

12 Richard H. Hikida, Cal. Bar No. 196149

3161 Michelson Drive, Suite 1000

13 Irvine, CA 92612-4410

Telephone: (949) 732-6500

14 Facsimile: (949) 732-6501

Email: hurleyg@gtlaw.com

15

Attorneys for Defendant

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

18

FRANCIE E. MOELLER et al, 19

Case No. C 02-05849 PJH JL

20 v.

Plaintiffs,

JOINT CASE MANAGEMENT STATEMENT

21

TACO BELL CORP.,

22

23

Defendant.

24

25

Pursuant to this Court’s April 10, 2008 Order Setting Case Management Conference,

26 the parties hereby submit this Joint Case Management Statement.

27

28

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1 1. Jurisdiction and Service.

2

a. Plaintiffs’ Statement.

3

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

4 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims brought

5 under the laws of the State of California. Defendant was served in December, 2002.

6

b. Defendant’s Statement.

7

The parties dispute whether the Court should exercise supplemental jurisdiction over

8 the pendent state law monetary claims because of the novelty or complexity of trying such state

9 law claims, the substantial predominance of the state law claims over the ADA claim, and the

10 dismissal of all claims over which the Court has original jurisdiction.

11

Although Taco Bell submits that plaintiffs must join as a party the landlords of stores at

12 which Taco Bell is the tenant or franchisee operators of stores that are not operated by Taco

13 Bell, plaintiffs have, to date, not served or attempted to join such parties pursuant to Fed. R.

14 Civ. P. 19.

15 2. Facts.

16

a. Plaintiffs’ Statement.

17

Plaintiffs provided their portion of this Statement to Defendant, and then received

18 Defendant’s portion. To avoid burdening the Court, Plaintiffs have not responded to each

19 assertion made by Defendant, but would like to note that they respectfully disagree with a

20 number of such assertions.

21

This is a disability access class action, filed in December 2002, alleging that there are

22 architectural barriers and discriminatory policies in place at the approximately 220 corporate

23 California Taco Bell restaurants that deny full and equal access to members of class of

24 customers who use wheelchairs or scooters, in violation of title III of the Americans with

25 Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., California’s Unruh Civil Rights Act

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

27 Code § 54.

28

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1

The architectural barriers include, for example: (1) access violations in parking lots,

2 such as parking spaces and access aisles that are too narrow, and paths of travel to the

3 restaurant with significant slopes and cross slopes; (2) entry and restroom doors that are too

4 heavy for class members to open on their own; (3) queue lines – the U-shaped lines in which

5 customers line up to place their orders – that are too narrow for people who use wheelchairs or

6 scooters to navigate; (4) seating areas with no, or too few, accessible seating positions; (5)

7 condiment, napkin, beverage and utensil dispensers that are not accessible; and (6) restrooms

8 that do not comply with accessibility regulations. By Order dated August 8, 2007, the Court

9 granted in part, and denied in part, Plaintiffs’ motion for partial summary judgment, holding

10 that seating areas, restroom door forces and certain entrance door forces at specified restaurants

11 were in violation of state and/or federal accessibility regulations. (Docket No. 307)

12

Construction and alteration dates.

13

The dates that the restaurants at issue were constructed or altered are important facts in

14 this case. The standard applicable to evaluate the accessibility of each restaurant depends on

15 the date it was constructed and the dates of any alterations. Under the ADA, all buildings

16 constructed after January 26, 1993, and any portion of an older building that was altered after

17 January 26, 1992, must comply with design specifications promulgated by the Department of

18 Justice (the “DOJ Standards”). Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606 (N.D. Cal.

19 2004). Buildings constructed before 1993 and not altered after 1992 must be made accessible

20 to the extent that it is “readily achievable” to do so. Id. Likewise, under California law, all

21 buildings constructed or altered after July 1, 1970, must comply with design specifications

22 governing the accessibility of various architectural elements. Id. at 607. From December 31,

23 1981 until the present, comprehensive and detailed standards, very similar to the DOJ

24 Standards, have been set forth in Title 24 of the California regulatory code (“Title 24"). Id.

25

The parties have stipulated to the construction dates of the vast majority of restaurants

26 at issue in this case (approximately 200 restaurants were constructed after 1970 and thus must

27 comply with regulations in effect at the time of their construction). In addition, in response to

28

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1 Plaintiffs’ Requests for Admissions, Defendant has admitted to many alterations in this case,

2 although there is a legal dispute as to the relevance of these alterations.

3

Measurement of Architectural Elements in Defendant’s Restaurants.

4

A second set of facts concerns the measurement of the architectural elements in the

5 restaurants at issue. This is important to determine whether the restaurants comply with

6 accessibility regulations in effect at the time they were constructed or altered.

7

To determine these measurements, in 2004, the parties jointly requested, and the Court

8 ordered, the appointment of a Special Master to survey all of the restaurants at issue in this

9 case. (See Order Appointing Special Master (Docket No. 101).) During the surveys of the first

10 20 restaurants -- often referred to as the “pilot program” -- counsel for the parties and Taco Bell

11 operational personnel accompanied the Special Master to observe how he measured and

12 evaluated the elements at issue. Based on the experiences during the pilot program, the parties

13 jointly drafted the survey instrument that the Special Master used to survey the remainder of

14 the restaurants. (Id. Ex. B.) These surveys involved detailed measurements of various

15 architectural elements throughout each restaurant. The survey process took approximately a

16 year and was completed in June, 2005.

17

The Special Master surveys revealed literally thousands of violations in the 220

18 restaurants at issue here. (See Docket Nos. 216-240.)

19

The Experiences of Class Members

20

Plaintiffs have been contacted by almost 2,000 class members, who have reported

21 significant problems with access at Defendant’s restaurants.

22

Disputed Facts

23

Defendant disputes the methodology used by the Special Master to take certain

24 measurements.

25

Under both the ADA and state access regulations, certain architectural elements that do

26 not comply with a measurement specified in the regulations may nevertheless comply if they

27 fall within a construction “tolerance” of the measurement. DOJ Standards § 3.2. The parties

28

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1 have reached stipulations with respect to a number of construction tolerances, but others

2 remain in dispute.

3

Defendant has argued that by fixing some of its restaurants, and by promising to fix

4 others in the future, Plaintiffs’ claims for injunctive relief are moot. There is a factual dispute

5 as to the adequacy of Defendant’s remedial efforts. This dispute is now largely irrelevant

6 because the Court has rejected Defendant’s mootness argument even as to injunctive relief,

7 holding that even if Defendant had adequately fixed various architectural barriers, “this Court

8 may order effective relief as to those elements in the form of an injunction requiring Defendant

9 to (1) remedy the remainder of these elements that are out of compliance; (2) maintain those

10 elements in a compliant state; and (3) ensure that those elements comply in any new or

11 acquired restaurants.” Moeller v. Taco Bell Corp., 2007 WL 2301778, *8 (N.D. Cal. Aug. 8,

12 2007) (Docket No. 307.) In any event, even assuming Plaintiffs’ injunctive claims became

13 moot, Plaintiffs’ damages claims would not.

14

A factual dispute exists as to whether Defendant’s policies concerning queue lines

15 provide equivalent facilitation to people who use wheelchairs or scooters for mobility. In its

16 August 8, 2007 Order Denying in Part and Granting in Part Plaintiffs’ Motion For Partial

17 Summary Judgment, the Court held that these queue lines, which are too narrow for people

18 who use wheelchairs or scooters to get through, do not comply with the architectural

19 specifications of California and federal accessibility guidelines. Id. at *9-10. Taco Bell

20 contends that people who use wheelchairs or scooters can approach the service counter via a

21 separate “auxiliary access” to the side of the queue line, which Plaintiffs asserted was not

22 appropriate because it is was segregated, and because other customers waiting in the queue line

23 often got angry at what they perceived as a disabled person “cutting” in line. Based on the

24 declaration of Defendant’s expert, who uses a wheelchair, asserting that he personally did not

25 have a problem with using the auxiliary line, the Court held that a disputed issue of fact exists

26 as to whether the auxiliary access provided equivalent facilitation. Id. at *12. Class members

27 who have communicated with class counsel report that attempting to deal with the queue line

28 and the experience of being shunted off to the side is discriminatory and humiliating.

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1

b. Defendant’s Statement.

2

Plaintiffs’ recitation of the facts omits to mention that the majority of the approximately

3 220 California company-owned stores at issue have been recently modified comprehensively

4 by Taco Bell voluntarily to enhance their accessibility, and that many of the remaining stores

5 over which Taco Bell currently operates and has control shall be modified in the near future.

6

In addition, the Court found a genuine issue of material fact as to whether queue lines at

7 Taco Bell’s California company-owned stores violate either federal or state law and whether

8 exterior door opening force at stores constructed before April 1, 1994 violated state law.

9 (Order of 8/8/07 at 36; docket #307.) Significantly, as to the remaining elements addressed in

10 such motion, the Court did not impose any injunctive relief. Indeed, plaintiffs’ motion for

11 partial summary judgment expressly refrained from seeking such relief. (Pls.’ MPSJ at 1:7-10;

12 docket #255; Pls.’ Reply in Supp. MPSJ at 1:18-21; docket #271.)

13

Disputed Facts

14

Plaintiffs challenge the “adequacy” of Taco Bell’s voluntary modification efforts to

15 comprehensively enhance the accessibility of the majority of its current California

16 company-owned stores.

17

The parties currently disagree as to the accuracy of many of the dimensions, values and

18 measurements of customer accessibility-related elements recorded by the Special Master after

19 he was appointed by the Court on October 5, 2004 to survey and record dimensions, values,

20 and measurements at virtually all California Taco Bell company-owned restaurants, which he

21 conducted in 2004 and 2005. (Order of 10/5/04; docket #101.) In particular, the parties

22 disagree as to the Special Master’s measurement methodology as to a number of elements.

23

The parties also disagree as to applicable construction tolerances for numerous

24 elements. As plaintiffs have previously acknowledged, all dimensions are subject to

25

26

27

28

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1 conventional building industry tolerances for field conditions.1 (ADA Standards for

2 Accessible Design (“ADAAG”), 3.2; see 28 C.F.R. Part 36, App. A.)

3

The parties also disagree as to whether the alleged architectural barriers at issue actually

4 hinder or otherwise deprive mobility-impaired class members of full and equal treatment under 5 the ADA.2 Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp. 2d 1357, 1368

6 (S.D. Fla. 2001) (Moore, J.) (“Deviation from the standards is relevant but not determinative; it

7 is one consideration from which the court may conclude that noncompliance impedes access.

8 At trial, a defendant may be able to rebut this evidence by showing that despite the technical

9 noncompliance, the challenged accommodation in fact allows disabled persons effective

10 access.”) (emphasis added); Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1067

11 (E.D. Cal. 2006) (“[N]on-compliance with ADAAG standards can demonstrate a prima facie

12 barrier, which the defendants may rebut by demonstrating that, despite the non-conformance

13 with the guidelines, the alleged barrier is not actually hindering equal access by the plaintiff.”)

14 (emphasis added).

15

The parties also disagree as to whether the removal of the alleged architectural barriers

16 would be “readily achievable” or “easily accomplishable and able to be carried out without

17 much difficulty or expense” within the meaning of 42 U.S.C. § 12181(9).

18

The parties also disagree as to whether the so-called “alterations” that plaintiffs claim

19 Taco Bell has allegedly admitted in response to plaintiffs’ second set of requests for admissions

20

21

1

The burden of proving a tolerance for particular measurements is on plaintiffs.

Cherry, et al. v. The City College of San Francisco, et al., No. C 04-04981 WHA, slip op. at

22 8:8-9:13 (N.D. Cal. Jan. 12, 2006) (Alsup, J.); Torres v. Rite Aid Corp., 412 F. Supp. 2d 1025,

1037 & n.5 (N.D. Cal. 2006) (Alsup, J.) (holding that the plaintiff was not entitled to summary

23 judgment because it was his burden to “introduce evidence that the industry disallows any

deviation.”) (“At trial, the plaintiff will have the burden of proving that [the defendant]

24 exceeded such tolerances.”).

25

2

Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp. 2d 1357, 1369

(S.D. Fla. 2001)(“injunctive relief would not be appropriate for de minimis violations that ‘do

26 not materially impair the use of an area for its intended purpose, . . . [or] pose any apparent

danger to persons with disabilities.’”) (quoting Parr v. L & L Drive-Inn Restaurant, 96 F.

27 Supp. 2d 1065, 1086 n.26 (D. Haw. May 16, 2000) (Yamashita, Mag. J.)); Independent Living

Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698, 783 (D. Or. 1997) (Ashmanskas, Mag.

28 J.) (court “will not require defendant to re-mount the alarms a few inches lower”).

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1 propounded on January 9, 2008 are, in fact, “alterations” within the meaning of the ADA or

2 whether they are mere modifications that did not trigger an “alteration” legal standard. Indeed,

3 contrary to plaintiffs’ assertion, Taco Bell’s discovery responses dated March 7, 2008 expressly

4 disavowed making any “admission” that any “alterations” under the ADA or Title 24 were

5 made.

6

The parties also disagree as to whether the requested alterations to the path of travel to

7 the altered area and the restrooms serving such area are disproportionate to the overall alleged

8 “alterations.” In this regard, the parties disagree as to whether plaintiffs can satisfy their

9 burden of demonstrating that all of the requested modifications can be made without exceeding

10 20% of the cost of the actual alleged “alterations”. 28 C.F.R. § 36.403(f)(1). Such

11 disproportionality analysis applies to both plaintiffs’ ADA claim as well as to plaintiffs’ state

12 law claims. (Cal. Code of Regs., Title 24, § 1134B.2.1, Exception 1.)

13

To the extent that the Court chooses to exercise supplemental jurisdiction over

14 plaintiffs’ state law claims for money damages, the parties also dispute whether plaintiffs can

15 demonstrate that each and every class member was individually denied equal access on a

16 particular occasion during a particular store visit that occurred within the limitations period.

17 Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 183, 266 Cal. Rptr. 804 (Cal. Ct. App. Feb.

18 23, 1990) (Merrill, J.) (“[T]o maintain an action for damages pursuant to section 54 et seq. an

19 individual must take the additional step of establishing that he or she was denied equal access

20 on a particular occasion.”)(emphasis added). Without such proof, individual class members

21 are not entitled to recover statutory minimum damages under state law.

22

The parties also disagree as to whether each and every individual class member seeking

23 monetary relief under California law qualifies as having a “physical disability” within the

24 meaning of applicable state law and uses a wheelchair or electronic scooter for mobility. (Cal.

25 Gov’t Code § 12926.)

26

The parties also disagree as to whether California had any binding accessibility

27 standards existing prior to the July 1, 1982 effective date of the original version of Title 24.

28 Indeed, this Court has not recognized any applicable accessibility standards preceding Title 24's

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1 original 1982 version. Mannick v. Kaiser Found. Health Plan, No. C 03-5905 PJH, 2006 WL

2 2168877, at *16 (N.D. Cal. July 31, 2006) (Hamilton, J.) (“Buildings existing at the time of

3 Title 24's enactment in 1982 are exempt from compliance unless ‘alterations . . . are made to

4 such buildings or facilities.’”).

5 3. Legal Issues.

6

a. Plaintiffs’ Statement.

7

Under Unruh, a violation of the ADA constitutes a violation of Unruh. There exists a

8 legal issue as to whether proof of intentional discrimination is necessary for Unruh claims that

9 are premised on violations of the ADA. The Ninth Circuit in Lentini v. California Center for

10 the Arts, 370 F.3d 837 (9th Cir. 2004) held that such proof is not needed, while a California

11 Court of Appeal reached the opposite conclusion in Gunther v. Lin, 144 Cal. App. 4th 223

12 (Cal. Ct. App. 2006). The Ninth Circuit recently certified this question to the California

13 Supreme Court. See Munson v. Del Taco, Inc., --- F.3d ----, 2008 WL 1700525 (9th Cir. Apr.

14 14, 2008).

15

b. Defendant’s Statement.

16

The parties dispute whether Taco Bell’s voluntary comprehensive accessibility-related

17 modifications at the majority of company-owned California Taco Bell stores have rendered

18 plaintiffs’ request for injunctive relief subject to dismissal based upon the mootness doctrine.

19 Jones v. Taco Bell Corp., No. S-04-1030 GEB GGH, 2005 WL 1406098, at *2 (E.D. Cal. June

20 14, 2005) (Burrell, J.) (dismissing ADA claims based upon conditions that were fixed even

21 after commencement of the action); Sharp v. Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB),

22 2007 WL 2137301, at *4 (D.D.C. July 26, 2007) (Bates, J.)(“The alleged discrimination cannot

23 reasonably be expected to recur because ‘structural modifications . . . are unlikely to be altered

24 in the future.’”) (quoting Indep. Living Resources v. Oregon Arena, 982 F. Supp. 698, 774 (D.

25 Or. 1997)); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (holding

26 that installation of grab rails by restaurant rendered moot plaintiff’s ADA complaint requesting

27 installation of such rails, finding no basis to conclude the challenged conduct would be

28

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1 repeated); see also Pereira v. Ralphs, No. 07-841 PA (FFMx), slip op. at 3-7 (C.D. Cal. Oct. 2 25, 2007) (Anderson, J.) [docket #91].3

3

The parties dispute whether Taco Bell’s comprehensive remedial plan as to the

4 remaining unmodified stores that shall be modified in the near future renders plaintiffs’

5 injunctive relief claims moot. Access 4 All, Inc. v. Casa Marina Owner, LLC, 458 F. Supp. 2d

6 1359, 1364-65 (S.D. Fla. Oct. 3, 2006) (King, J.) (“Defendant’s remedial plan [to remodel the

7 entire facility at issue, a hotel, and bring it up to compliance with the ADA] . . . renders

8 Plaintiffs’ claims moot, as a matter of law, and subjects Plaintiffs’ Complaint to dismissal.”).

9

The parties also dispute whether the Court should exercise supplemental jurisdiction

10 over the pendent state law monetary claims because of the novelty or complexity of trying such

11 state law claims, the substantial predominance of the state law claims over the ADA claim, and 12 the dismissal of all claims over which the Court has original jurisdiction.4 See, e.g., Yates v.

13

14

3

Given that plaintiffs have previously cited what appeared at the time to be a

favorable court ruling in Pereira v. Ralphs, No. 07-841 PA (FFMx) (C.D. Cal. July 2, 2007)

15 (Anderson, J.), see (Pls.’ Submission of Recent Decision Pursuant to Local Rule 7-3(D) filed

on 8/6/07, docket #306), it is worth noting that Judge Anderson ultimately dismissed that

16 action based upon the mootness doctrine.

17

4

In Executive Software North America, Inc. v. United States District Court for

the Central District of California, 24 F.3d 1545 (9th Cir. 1994), a decision previously cited by

18 plaintiffs, the Ninth Circuit held, “‘Under Gibbs, a federal court should consider and weigh in

each case, and at every stage of the litigation, the values of judicial economy, convenience,

19 fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in

that court involving pendent state-law claims.’” Executive Software, 24 F.3d at 1552 (quoting

20 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)) (emphasis added); see also United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966) (“Similarly, if it appears that

21 the state issues substantially predominate, whether in terms of proof, of the scope of the issues

raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed

22 without prejudice and left for resolution to state tribunals.”)(emphasis added); id. at 726

(“Needless decisions of state law should be avoided both as a matter of comity and to promote

23 justice between the parties, by procuring for them a surer-footed reading of applicable

law.”)(emphasis added). Thus, a federal district court’s consideration of whether to exercise

24 supplemental jurisdiction is a continuing inquiry that remains open throughout every stage in a

case. At the Court’s invitation, (Tr. of H’rg of 9/27/07 at 7:9-12; docket #330), Taco Bell has

25 cited examples of cases wherein pendent state law claims were dismissed even after extensive

federal court proceedings had occurred. (TBC’s Reply of 10/12/07 at 4:11-5:3; docket #335.)

26 For example, in Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904 (7th Cir. 2007)

(Posner, J.), the Seventh Circuit recently affirmed the dismissal of a state law claim because of

27 the existence of unresolved issues of state law even though the state law claim had been tried

once before in federal district court and had to be tried again on remand, which suggested

28

(continued...)

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1 Union Square, No. C 07-04087 JSW, 2008 WL 346418, at *3 (N.D. Cal. Feb. 7, 2008) (White,

2 J.) (declining to exercise supplemental jurisdiction over pendent state law accessibility claims

3 filed by Craig Yates, one of the four named plaintiffs in the instant action, based upon the

4 “persuasive” “reasoning” of the “majority of judges in the California district courts” who cited

5 the conflict between the California intermediate appellate court decision in Gunther v. Lin, 144

6 Cal. App. 4th 223, 50 Cal. Rptr. 3d 317 (2006) (holding that intentional discrimination was

7 required to recover under the Unruh Act) and the prior Ninth Circuit decision in Lentini v.

8 California Center for the Arts, 370 F.3d 837 (9th Cir. 2004)); see also Jones, 2005 WL

9 1406098, at *2 (dismissing pendent state law claims against Taco Bell because the district

10 court had dismissed all claims over which it had original jurisdiction). Indeed, even the Ninth

11 Circuit has recently certified the question as to the meaning of the Unruh Act to the California

12 Supreme Court because of its own uncertainty as to whether the Unruh Act requires intentional

13 discrimination. Munson v. Del Taco, Inc., No. 06-56208, 2008 WL 1700525, at *1 (9th Cir.

14 Apr. 14, 2008) (“Comity and federalism counsel that the California Supreme Court, rather than

15 this court, should answer these [certified] questions.”).

16

The parties also dispute whether the Court should be applying multiple sets of legal

17 standards, e.g., both federal and state accessibility standards, in the instant action. Although

18 plaintiffs claim that California’s Title 24 standards are “very similar” to the DOJ Standards,

19
4(...continued) 20 substantial federal judicial and party resources had already been expended to resolve the state
law claim. Id. at 906-08. In Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556 (2d 21 Cir.), cert. denied, 501 U.S. 1218 (1991), the Second Circuit held, “The judicial economy
factor should not be the controlling factor, and it may be appropriate for a court to relinquish 22 jurisdiction over pendent claims even where the court has invested considerable time in their
resolution.” Id. at 564 (emphasis added); see also Dunton v. County of Suffolk, 729 F.2d 903, 23 910 (2d Cir. 1984) (“Even if the federal claims are discovered to be patently meritless only
after the trial begins, once that discovery is made the state claims must be dismissed along 24 with the federal ones.”) (emphasis added). In Farley v. Williams, No. 02-CV-0667C(SR), 2005
WL 3579060 (W.D.N.Y. Dec. 30, 2005) (Curtin, J.), the district court, citing the Kidder, 25 Peabody decision, held that: “Although the case has been pending with this court for some
time, and considerable effort has been expended to bring the proper parties before the court and 26 to oversee the scheduling of discovery, very little of the court’s time or resources have been
devoted to the resolution of these claims.” Id. at *6 (emphasis added). Similarly, to date, this 27 Court has refrained from deciding whether to apply Gunther v. Lin, 144 Cal. App. 4th 223 (Cal.
Ct. App. 2006) to this case. 28

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1 they are in many instances materially different than federal ADA standards especially as to

2 facilities constructed before January 26, 1993, which are, in general, subject to the “readily

3 achievable” legal standard. Otherwise, why have plaintiffs been so insistent upon applying

4 such non-ADA standards, which only apply at most to plaintiffs’ pendent state law claims for

5 injunctive relief and monetary damages and not to any of plaintiffs’ ADA federal claims?

6 Recent federal court decisions have clarified that the ADAAG should apply to ADA claims as

7 to “new construction” and not a set of non-ADA standards such as California’s Building

8 Standards Code. Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL

9 512426, at *1 (E.D. Cal. Feb. 12, 2007) (Levi, J.) (holding that the California Building Code is

10 “irrelevant for ADA purposes” because “[t]he ADA Accessibility Guidelines for Buildings and

11 Facilities (ADAAG) are the exclusive standards for judging compliance with the ADA”);

12 Chapman v. Pier 1 Imports, 2006 WL 1686511, at *7 (E.D. Cal. June 19, 2006) (Karlton, J.)

13 (“[T]he court adopts by reference the analysis articulated in Eiden with respect to the ADAAG

14 and the CBC. As in Eiden, I conclude that compliance with the ADAAG, and not another

15 standard, constitutes compliance with the ADA requirements for new construction.”); id. at *7

16 n.11 (“[T]he court notes that because Congress directed that the Department of Justice, in

17 conjunction with the Architectural and Transportation Barriers Compliance Board (“Access

18 Board”), issue the ADAAG, and that these standards constitute binding regulation, the court is

19 not authorized to evaluate Title III disability discrimination claims under any other standard,

20 and to determine what engineering or architectural modifications are necessary, or whether

21 such modifications would be feasible and desirable.”); id. at *7 (“[T]he court concludes that the

22 ADAAG constitutes the exclusive standards under Title III of the ADA”.); Sanford v. Del

23 Taco, Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351, at *2 (E.D. Cal. Sept. 18, 2006)

24 (Burrell, J.) (“The ADA Accessibility Guidelines (‘ADAAG’) provides the standard for

25 determining a violation of the ADA.”).

26

Indeed, plaintiffs’ reliance upon a complex analysis of their state law claims, which

27 requires the historical review of prior versions of Title 24 dating back to the original version

28

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1 that went into effect on July 1, 1982, is an additional reason why this Court should decline to

2 exercise supplemental jurisdiction over plaintiffs’ state law claims.

3

To the extent that the Court does not apply the mootness doctrine, the parties also

4 dispute whether plaintiffs can satisfy their burden of demonstrating via expert testimony5 that

5 the removal of alleged architectural barriers at the numerous Taco Bell stores that were

6 constructed before January 26, 1993 is “readily achievable” insofar as the nature and cost of the

7 action needed are “easily accomplishable” and “able to be carried out without much difficulty

8 or expense.” 42 U.S.C. § 12181(9). As this Court has previously recognized, the evidentiary

9 burden of production falls squarely upon the ADA plaintiff. Mannick v. Kaiser Foundation

10 Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *12 (N.D. Cal. June 9, 2006)(“In

11 view of plaintiff’s failure to meet his burden of coming forward with evidence to show that

12 creating an accessible patient room was readily achievable, defendants are under no obligation

13 to prove the affirmative defense that barrier removal is not readily achievable.” (emphasis

14 added). Placing such burden upon the ADA plaintiff is consistent with F.R.E. Rule 407.

15

Taco Bell anticipates that plaintiffs will argue that the “readily achievable” legal

16 standard does not apply to “existing facilities” constructed before January 26, 1993 because

17 they were “altered” sometime after January 26, 1992. 42 U.S.C. § 12183(a)(2). Taco Bell

18 submits, however, that plaintiffs’ reliance upon an “alteration” legal standard is flawed because

19 an exception applies to the “alteration” standard if the requested alterations to the path of travel

20 to the altered area and the restrooms serving such area are disproportionate to the overall

21 alleged “alterations.” In this regard, the parties also dispute whether plaintiffs can satisfy their

22

5

The “readily achievable” barrier removal standard is the subject of expert

23 testimony, which is premature at this juncture. Pascuiti v. New York Yankees, 1999 WL

1102748, at *4 (S.D.N.Y. Dec. 6, 1999) (“The plaintiffs in this case must consider the four 24 factors identified in § 12181(9) and proffer evidence, including expert testimony, as to the ease

and inexpensiveness of their proposed method of barrier removal.”) (emphasis added); 25 Colorado Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999, 1009 (10th Cir.

2001) (“Perhaps most importantly, Plaintiff’s expert testimony failed to demonstrate that under 26 the particular circumstances installing a ramp would be readily achievable.”). Indeed, on

November 30, 2007, plaintiffs themselves objected to their required production of specific 27 architectural drawings and precise cost estimates, see Colorado Cross, 264 F.3d at 1007-09,

based upon their own need for expert testimony. 28

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1 burden of demonstrating that all of the requested modifications can be made without exceeding

2 20% of the cost of the actual “alterations”. 28 C.F.R. § 36.403(f)(1). Such disproportionality

3 analysis applies to both plaintiffs’ ADA claim as well as to plaintiffs’ state law claims. (Cal.

4 Code of Regs., Title 24, § 1134B.2.1, Exception 1.) Although Taco Bell anticipates that

5 plaintiffs shall argue that the disproportionality analysis does not apply to plaintiffs’ state law

6 claims premised upon non-ADA standards because Taco Bell did not apply for a unreasonable

7 hardship exemption from the local building department charged with enforcing accessibility

8 standards, such reasoning ignores that by suing to obtain injunctive relief under state law,

9 plaintiffs have affirmatively taken on the enforcement role typically held by local building

10 officials such that a neutral arbiter, i.e., the Court, can and should be equipped to conduct the

11 disproportionality analysis consistent with Taco Bell’s right to due process. Indeed, the

12 analogous disproportionality analysis under the regulations implementing the ADA

13 countenance that the Court shall conduct such disproportionality analysis, not a local building

14 official.

15

Even assuming that an “alterations” standard has been triggered within the meaning of

16 the ADA or state law, the parties dispute whether plaintiffs can demonstrate that the requested

17 modification would be “readily achievable”. See Mannick v. Kaiser Foundation Health Plan,

18 Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *11 (N.D. Cal. June 9, 2006) (Hamilton, J.)

19 (holding that even assuming that remodeling of a hospital patient room triggered the alteration

20 standard, the sought-after renovation was not readily achievable) (“Moreover, even if it [(i.e.,

21 remodeling at the hospital at issue)] had [triggered an obligation to provide an accessible

22 patient room on the medical-surgical floors], the undisputed evidence shows that a renovation

23 of a medical-surgical patient room to include a fully accessible bathroom was not ‘readily

24 achievable,’ given the cost of the renovation and the impact on hospital operations.”).

25

The parties also dispute whether Taco Bell has already made so-called alterations “to

26 the maximum extent feasible.” 28 C.F.R. § 36.402(a)(1); 42 U.S.C. § 12183(a)(2).

27

As for the stores that are considered “new construction” because they were constructed

28 after January 26, 1993, 42 U.S.C. § 12183(a)(1), the parties also dispute whether Taco Bell will

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1 show that departures from particular scoping standards set forth in the ADAAG are permissible

2 because they provide equivalent facilitation in the form of substantially equivalent access to

3 and usability of the facility. (ADAAG, 2.2.)

4

As for stores that plaintiffs claim as being subject to the version of Title 24 in effect at

5 the time of store construction,6 the parties dispute whether Taco Bell will show, inter alia, that

6 departures from particular scoping standards set forth in the Title 24 are permissible because

7 they provide equivalent facilitation in the form of substantially equivalent access to and

8 usability of the facility. Title 24, § 1127B.1, Exception 1 (exterior features); Title 24, §

9 1129B.4, Item 3, Exception 1 (exterior parking features); Title 24, § 1133B.1.1.1.1, Exception

10 3 (entrances, exits, and paths of travel); Title 24, § 1133B.3.2, Exception 1 (entrances, exits,

11 and paths of travel); Title 24, § 1104B.5, Item 1, Exception 1 (dining facilities); Title 24, §

12 1115B.1, Exception (restroom facilities). For example, merely because a store does not satisfy

13 the version of Title 24 in effect at the time of store construction does not preclude reliance

14 upon technical guidelines contained in the ADAAG, which constitute “other designs” within

15 the meaning of ADAAG, 2.2. Thus, Taco Bell challenges plaintiffs’ assumption that they can

16 demonstrate liability via noncompliance with Title 24 standards even if analogous ADA

17 standards are “lower” or nonexistent.

18

The parties also dispute whether the imposition of punitive damages as requested by

19 Plaintiffs would violate the United States Constitution, including but not limited to, the Fifth,

20 Eighth, and Fourteenth Amendments, and the corresponding provisions of the California

21 Constitution. In addition, because of the imposition of unclear standards, the imposition of

22 punitive damages is unconstitutionally vague or overbroad in violation of the United States and

23 California Constitutions.

24

25

26

27

6

Plaintiffs’ assumption that the first version of Title 24 went into effect on

December 31, 1981 is inaccurate. The first version of Title 24 did not go into effect until July 28 1, 1982.

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1 4. Motions.

2

a. Plaintiffs’ Statement.

3

In February 2004, the Court certified the proposed class, setting the beginning of the

4 statute of limitations period for damages at December 2001. (Docket No. 84).

5

On December 7, 2004, the Court denied Defendant’s motion to modify the definition of

6 the class to exclude class damages claims. (Docket No. 148).

7

On October 5, 2004, the Court granted the parties’ joint request to appoint a Special

8 Master to survey all of the restaurants at issue in this case. (Docket No. 101).

9

On August 10, 2005, the Court issued its first summary judgment decision, addressing

10 several disputed legal issues. (Docket No. 188.)

11

On August 8, 2007, the Court granted in part, and denied in part, Plaintiffs’ motion for

12 partial summary judgment, holding that seating areas, restroom door forces and certain entrance

13 door forces at specified restaurants were in violation of state and/or federal accessibility

14 regulations. (Docket No. 307).

15

By order dated March 24, 2008, the Court denied Defendant’s motion to reconsider the

16 decision granting in part, and denying in part, Plaintiffs’ motion for partial summary judgment.

17 (Docket No. 367.)

18

Plaintiffs’ motion to compel Taco Bell’s production of correspondence with the

19 contractor it retained to make alterations in its stores is currently pending. (See Docket No.

20 361.)

21

The parties have submitted to Judge Larson a Joint Statement of Issues in connection

22 with Plaintiffs’ efforts to compel Defendant to state the reasons why it contends that certain

23 measures it has already taken to remove architectural barriers were not readily achievable.

24 (Docket No. 373.)

25

b. Defendant’s Statement.

26

On October 19, 2004, plaintiffs filed a motion for partial summary judgment,

27 addressing only 20 of the approximately 220 stores at issue, which the Court refused to rule

28 upon because the Court deemed it premature (plaintiffs later withdrew such motion).

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1

Subsequently, the parties submitted legal briefs to the Court as to certain disputed legal

2 issues. (Docket ##161, 178.) On August 10, 2005, the Court issued a published order holding

3 that the currently-defined class does not have standing to challenge the accessibility of various

4 elements such as inaccessible hardware such as locks and flush controls and toilet paper rollers

5 because such elements do not fall within the scope of the mobility-impaired class members.

6 (Order of 8/10/05 at 5:13-6:28; Docket #188; see also Moeller v. Taco Bell Corp., No. C

7 02-5849 MJJ, 2005 WL 1910925, at *3-*4 (N.D. Cal. Aug. 10, 2005).) The Court refrained

8 from ruling as to the “de minimis” exception until further development of the factual record.

9 Id. at 5:11-12. As for the “equivalent facilitation” exception, (ADAAG 2.2), the Court clarified

10 that such exception was not intended to apply to only “new technology” as asserted by

11 plaintiffs. Id. at 4:7-8.

12

Subsequently, on February 23, 2007, plaintiffs once again moved for partial summary

13 judgment, but this time addressed only a small sample of elements (exterior and interior door

14 opening force, queue lines, and indoor seating) at approximately 180 stores, but expressly

15 refrained from seeking injunctive relief. (Pls.’ MPSJ at 1:7-10; docket #255; Pls.’ Reply in

16 Supp. MPSJ at 1:18-21; docket #271.)

17

On August 8, 2007, the Court granted plaintiffs’ motion in part and denied it in part,

18 and expressly found a genuine issue of material fact as to whether queue lines at Taco Bell’s

19 California company-owned stores violate either federal or state law and whether exterior door 20 opening force at stores constructed before April 1, 1994 violated state law.7 (Order of 8/8/07

21 at 36; docket #307.) Significantly, as to the remaining elements addressed in such motion, the

22 Court did not award any injunctive relief. Thus, the Court’s observations, cited by plaintiffs,

23 about the mere potential for issuing an injunction, (Order of 8/8/07 at 12:15-19; docket #307),

24 without actually doing so constitutes obiter dictum. Indeed, the Court subsequently reiterated

25 that he had not imposed any injunctive relief via his August 8, 2007 ruling. (Tr. of H’rg of

26

7

Notwithstanding plaintiffs’ counsel’s hearsay reference to their alleged

27 communications with unidentified class members, plaintiffs failed to proffer in support of their

motion any admissible evidence from any class member averring to the alleged hindrance 28 posed by Taco Bell’s customer service alternative facilitation.

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1 9/18/07 at 5:2-4; docket #340) (“Clearly, I didn’t make any resolution . . . regarding the

2 question of injunctive relief on the motion that I already heard.”).

3

On September 21, 2007, Taco Bell moved for reconsideration of such order, (Docket

4 #319), which the Court had granted leave to file. (Tr. of H’rg of 9/18/07; docket #340.) On

5 March 24, 2008, the Court denied the motion without any explanation before resigning on

6 April 4, 2008. (Order of 3/24/08 at 1; docket #367.)

7

On February 15, 2008, plaintiffs moved to compel the production of correspondence

8 between Taco Bell’s defense attorneys in the instant action and Taco Bell’s in house counsel,

9 on one hand, and Taco Bell’s consultant, Alianza Development International, LLC (“Alianza”),

10 on the other hand, despite Taco Bell’s invocation of the attorney-client privilege and attorney

11 work-product doctrine. (Docket ##363-364.) Alianza has provided project management

12 services to Taco Bell and specifically overseen virtually all of the comprehensive 13 modifications8 made by contractors9 to the majority of Taco Bell’s California company-owned

14 stores between 2006 and the present, which are intended to voluntarily enhance the

15 accessibility of such stores. Such motion is currently pending.

16

On April 30, 2008, the parties filed a Joint Statement of Issues regarding a discovery

17 dispute as to whether Taco Bell must further supplement its response to an interrogatory

18 seeking the basis for Taco Bell’s position that the removal of certain alleged architectural

19 barriers at certain Taco Bell company-owned stores at issue is not “readily achievable” within

20

21

22

23

24

25

8

Taco Bell disagrees with plaintiffs’ characterization of such modifications as

“alterations” presumably within the technical definition of an “alteration” in the ADA. 28 26 C.F.R. § 36.402.

27

9

Given that Taco Bell has never described or represented that Alianza is a

general contractor, Taco Bell is uncertain as to why plaintiffs have characterized Alianza as a 28 “contractor.”

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1 the meaning of the ADA.10 To date, the magistrate judge assigned to hear discovery disputes in

2 this action has not requested formal briefing.

3

Taco Bell anticipates filing a motion for summary judgment or, in the alternative,

4 summary adjudication based upon the mootness doctrine and other arguments. Taco Bell

5 intends to seek leave of court to file an oversized brief and permission to file a separate

6 statement of facts. The Court remarked, “I certainly would be of a mind to hear such a motion.

7 I think it’s a question of when.” (Tr. of H’rg of 9/27/07 at 5:20-21; docket #330.) Indeed, the

8 Court, referring expressly to Taco Bell’s contemplated “mootness motion”, noted, “I may have

9 to embrace some of those questions in this particularized proceeding [i.e., the mini trial] we’re

10 talking about.” Id. at 11:7-8. Thus, contrary to plaintiffs’ assertion, the mootness question is

11 not “largely irrelevant” even according to the predecessor judge assigned to hear this action.

12 5. Amendment of Pleadings.

13

a. Plaintiffs’ Statement.

14

The deadline to move for leave to join third parties was February 28, 2007. (Order to

15 Continue Deadline to File Motion for Leave to Join Third Parties and Stay Remainder of

16 Pretrial Dates, Oct. 3, 2006, Docket No. 213).

17

b. Defendant’s Statement.

18

Plaintiffs have failed to join as a party the landlords of stores at which Taco Bell is the

19 tenant or franchisee operators of stores that are not operated by Taco Bell. Plaintiffs have, to

20 date, not served or attempted to join such parties pursuant to Fed. R. Civ. P. 19.

21

22

23

24

10 To date, Taco Bell has already provided to plaintiffs the names of multiple

witnesses, produced a mountain of relevant documents addressing both the “nature and cost” of 25 the modifications voluntarily made by Taco Bell, 42 U.S.C. § 12181(9), and specifically

addressed the fact that the requested actions sought by plaintiffs would not be “easily 26 accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §

12181(9). Taco Bell has also offered to supplement its response to clarify its reliance upon the 27 disruption to store operations as an example of the difficult nature of the requested

modifications. Plaintiffs continue to seek relief from the Court. 28

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1 6. Evidence Preservation.

2

a. Plaintiffs’ Statement.

3

Plaintiffs’ Counsel have retained and preserved all hard-copy and electronic documents

4 and other materials in their possession relevant to this litigation.

5

b. Defendant’s Statement.

6

Taco Bell has internally circulated memoranda to its restaurant general managers and/or

7 other employees specifically identified by Taco Bell as potentially having relevant documents,

8 and insisted upon strict compliance with Taco Bell’s document preservation policy including

9 electronically-stored data or other evidence that may be potentially relevant to the instant

10 action.

11 7. Disclosures

12

a. Plaintiffs’ Statement

13

Plaintiffs have fully and timely complied with the initial disclosure requirements of

14 Fed. R. Civ. P. 26 and have repeatedly supplemented those disclosures. Plaintiffs’s disclosures

15 include the following types of documents and information: names and addresses of class

16 members (over 1,600); photographs of Taco Bell stores; and documents relating to Taco Bell

17 restaurants obtained from building departments.

18

b. Defendant’s Statement.

19

Taco Bell has fully and timely complied with the initial disclosure requirements and has

20 repeatedly supplemented those disclosures. The disclosures made have included potential

21 witnesses and the identity of relevant documents. For example, Taco Bell has provided

22 photographs of modified elements at numerous Taco Bell California company-owned stores

23 and detailed written explanations addressing how and why plaintiffs’ modification requests

24 have become moot.

25

26

27

28

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1 8. Discovery.

2

a. Plaintiffs’ Statement

3

The parties have exchanged a good deal of discovery since the case was filed in 2002.

4 In September, 2007, Judge Jenkins ordered that the parties prepare for a “bellwether” trial of 20

5 stores, see infra ¶ 15; since that time, discovery has focused on matters relevant to that trial.

6

The Pretrial Order dated September 28, 2007 (Docket No. 329) provided that each party

7 would have 20 depositions, 100 interrogatories, 100 document requests, and unlimited requests

8 for admission.

9

Plaintiffs respectfully request that they be permitted to propound an additional 25

10 interrogatories. By way of background, in a set of interrogatories dated December 11, 2007,

11 Plaintiffs requested that Defendant provide its position and defenses with respect to each of the

12 elements in the 20 bellwether stores that Plaintiffs had identified as being in violation of

13 applicable standards. Although it required only six interrogatories to make the request, those

14 interrogatories addressed approximately 1,500 violations. Both parties and the court

15 acknowledged that it was likely reasonable to count it as more than six requests. (See Tr. of

16 Proceedings (1/9/2008) at 16-31 (Docket No. 358.) Plaintiffs argued that the information was

17 essential for them to prepare for trial. Judge Jenkins agreed, and permitted Plaintiffs to

18 propound those six interrogatories in full. (Id. at 31.)

19

However it may have been appropriate to count those interrogatories, Defendant has

20 objected to any further interrogatories since that time as being over the allotted number. For

21 example, Defendant has challenged the methodology of the jointly-selected Special Master;

22 Plaintiff propounded an interrogatory asking the grounds for such challenges. Defendant

23 refused to respond on the grounds that Plaintiffs were over the numerical limit. Plaintiffs

24 respectfully request the flexibility to inquire into additional matters without having to request

25 leave of court each time, and thus request an additional 25 interrogatories.

26

Finally, Plaintiffs have pending before Magistrate Judge Larson a motion to compel

27 originally briefed before Judge Jenkins as well as a Joint Statement of Issues concerning a

28 second discovery matter.

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1

b. Defendant’s Statement

2

The scope of discovery already taken in this action has been affected by the bifurcation

3 of the trial in this action into two different stages. Stage I is intended to address injunctive

4 relief and Stage II is intended to address damages under the state law claims. On February 25,

5 2005, the Court adopted the Joint Pre-Trial Order submitted jointly by the parties wherein the

6 parties stated that they “agree that Stage I of these proceedings will determine equitable relief

7 for the class in this case.” (Joint Pre-Trial Briefing Schedule and Order of 2/25/05 at 3:4-5;

8 docket #169) (emphasis added).

9

Although this Court subsequently further limited the scope of a Stage I trial by ordering

10 a mini trial currently scheduled for November 10, 2008, (Pretrial Order of 9/28/07; docket

11 #329), as to a limited number of stores at issue in this action, (Order of 10/18/07; docket #338),

12 the fact remains that such so-called “Bellwether” mini trial shall address only plaintiffs’

13 injunctive relief claims (pertaining to 20 stores only) and not plaintiffs’ state law damages

14 claims.

15

Consistent with the foregoing distinction, plaintiffs have thus far refused to answer

16 Taco Bell’s discovery requests addressing their damages claims. For example, plaintiffs have

17 objected to discovery as to whether class members have a “disability” within the meaning of

18 the ADA that renders them mobility-impaired on the ground that it is premature during Stage I.

19 (Pls.’ Response to TBC’s Second Set of Interrogatories of 1/10/05 at 2:15-16) (objecting to

20 interrogatory No. 1 because “the information it seeks is not relevant to Stage 1 proceedings in

21 this case”). Plaintiffs have objected to Taco Bell’s interrogatories and document inspection

22 requests based on the ground that such discovery is beyond the scope of Stage I. (Pls.’

23 Response to TBC’s Second Set of Interrogatories of 1/10/05 at 3:15-16, 3:25-26, 4:7-8,

24 4:15-16) (objecting to interrogatory Nos. 2, 3, 4, 5); (Pls.’ Response to TBC’s Second Request

25 for Production of Documents of 1/10/05 at 3:7-8, 3:14-15, 4:3-4, 5:7-8) (objecting to inspection

26 demands Nos. 4, 5, 7, 11). Indeed, this Court has recently precluded discovery as “unripe” on

27 the basis that it pertained to damages claims. (Order of 1/11/08 at 1:24-25; docket #354; order

28 of 1/18/08 at 3:13-14; docket #359; Tr. of H’rg of 1/9/08 at 10:2; 11:16-23; 35:24; 36:3-4;

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1 37:22-23; 42:12; 43:12; docket #358; see also Minutes of 1/9/08; docket #353.) Presumably,

2 such discovery shall be permissible in Stage II. Thus, the parties will need an opportunity to

3 conduct discovery as to plaintiffs’ damages claims after Stage I proceedings have been

4 completed.

5

As for discovery relating to plaintiffs’ injunctive relief claims to be resolved during

6 Stage I, plaintiffs have propounded over the years 11 sets of interrogatories, 9 sets of document

7 inspection demands, and 3 sets of requests for admissions. Plaintiffs have received in response

8 a mountain of information and documents addressing Taco Bell’s modifications at its 9 California company-owned stores.11 Plaintiffs have also taken numerous depositions including

10 multiple PMK depositions of Taco Bell’s corporate designees as to numerous topics. In

11 addition, plaintiffs’ counsel have conducted site inspections of four comprehensively modified

12 stores in October 2006 and more recently of 13 comprehensively modified stores with their

13 retained expert in March 2008. Thus, plaintiffs’ counsel have firsthand knowledge of the

14 extent of comprehensive modifications to numerous Taco Bell stores, but have inexplicably

15 refused to withdraw their injunctive relief claims as to such stores to date. If anything, despite

16 the mountain of information within plaintiffs’ possession to evaluate the fact that plaintiffs’

17 injunctive relief claims are moot, plaintiffs have recently engaged in what appear to be

18 questionable discovery tactics, which appear vexatious and intended to manufacture discovery

19 disputes to bias the Court against Taco Bell and its counsel.

20

Although the Court’s September 28, 2007 Pretrial Order allowed plaintiffs to propound

21 100 interrogatories, (Docket #329), plaintiffs exhausted such limit via their 13 interrogatories

22 propounded on October 17, 2007, their allegedly “6" interrogatories propounded on December

23

24

25
11 On February 25, 2005, the Court adopted the Joint Pre-Trial Order submitted by 26 the parties wherein the parties stated that they “agree that Stage I [of these proceedings] will
not require a determination of the history of changes that each element at Taco Bell restaurant 27 may have undergone during the class period, except to the extent necessary to resolve any
dispute regarding the accessibility standard that applies to a particular element at a particular 28 restaurant.” (Doc. #169 at 3:5-8.)

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1 11, 2007,12 and their 2 interrogatories propounded on December 20, 2007. To make matters

2 worse, as of January 4, 2008, which is when Taco Bell provided plaintiffs with its portion of an

3 Update to the Joint Status Conference Statement ultimately filed on January 5, 2008 (docket

4 #350), which briefed the discovery dispute as to the counting of plaintiffs’ interrogatories,

5 plaintiffs had failed to offer any extension of time to respond to the December 11, 2008

6 interrogatories, which was literally 10 days before Taco Bell’s responses were then due.

7

On January 9, 2008, the Court conducted a Status Conference and addressed the precise

8 issue of whether plaintiffs had exceeded the 100 interrogatory limit. The Court repeatedly 9 acknowledged, on the record, that plaintiffs had, in fact, exceeded such limit,13 but that the

10 Court would allow the “augmentation” of such limit conditioned upon an extension of time for

11 Taco Bell to respond by March 10, 2008. (Tr. of H’rg of 1/9/08 at 18:1-5; 19:12-19; 20:14-16;

12 30:21-31:20; 43:19-20; 58:2-4; 58:4-7; 58:8-10; 59:3-6; docket #358.)

13

14

12 On December 11, 2007, plaintiffs propounded by e-mail what purported to be

six interrogatories, but which were, in reality, far more. Such interrogatories incorporated by

15 reference 267 pages of documents addressing approximately 1,500 measurements of the

elements taken by the Special Master as part of his Interim Survey Reports regarding the so-

16 called 20 Bellwether stores. The bulk of the documents consist of 266 pages of so-called

Bellwether charts e-mailed to Taco Bell on November 30, 2007. The additional document

17 incorporated by reference is page 4 of plaintiffs’ November 30, 2007 response to Taco Bell’s

Interrogatory No. 2.

18

Arguably, plaintiffs propounded approximately 8,000 interrogatories via their

December 11, 2007 interrogatories. The December 11th Interrogatories Nos. 1-5 each

19 pertained to 1,492 elements [1,492 x 5 = 7,460]. Interrogatory No. 6 pertained to 415

elements. Thus, 7,460 + 415 = 7,875. Collaboration Properties, Inc. v. Polycom, Inc., 224

20 F.R.D. 473, 475 (N.D. Cal. 2004) (Chen, Mag. J.) (single interrogatory seeking information

about 26 separate products in a patent case held to contain 26 discrete subparts), cited in The

21 Rutter Group, California Practice Guide: Federal Civil Procedure Before Trial ¶ 11:1689

(2007). Based upon a pragmatic approach to counting plaintiffs’ December 11, 2007

22 interrogatories, there is little doubt that each element that is the subject of the six

interrogatories introduces a line of inquiry that is separate and distinct from the inquiry made

23 by the element that preceded it so that the 8,000 subparts “must be considered” “separate

interrogator[ies]” “no matter how [the six interrogatories are] designated.” Willingham v.

24 Ashcroft, 226 F.R.D. 57, 59 (D.D.C. 2005) (Facciola, Mag. J.). Noting that the responses

would require addressing over 1,400 elements, the Court remarked at the January 9, 2008

25 Status Conference that “that’s quite a response.” (Tr. of H’rg of 1/9/08 at 28:14-15; docket

#358.)

26

13 (Tr. of H’rg of 1/9/08 at 16:14-16; docket #358) (“it’s hard form me to see

27 where you could argue that those -- that’s one interrogatory. You know, I think you’ve got

trouble here.”); id. at 16:22-23 (“you clearly have more than one interrogatory with respect to

28 each of these matters”).

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1

Despite Taco Bell’s efforts to convince plaintiffs that they had exceeded the 100

2 interrogatory limit via their October 17, 2007, December 11 and 20, 2007 interrogatories,

3 plaintiffs steadfastly refused to acknowledge such position, let alone, acknowledge that they

4 had exceeded propounding “6" interrogatories via their December 11, 2007 interrogatories until

5 the January 9, 2008 Status Conference itself after the Court had already stated, on the record,

6 its position that plaintiffs had exceeded the 100 interrogatory limit. (Tr. of H’rg of 1/9/08 at

7 21:14-17) (“Ms. Robertson: I think the Court is exactly right. They’re trying to figure out --

8 you know, yes, it’s absolutely more than one interrogatory. It’s more than six interrogatories.

9 And I think the way to go about it is as the Court suggested.”).

10

During such January 9, 2008 Status Conference, the Court also expressly granted leave

11 for plaintiffs to augment their interrogatory limit to propound discovery as to allegedly “2" 12 interrogatories,14 (Tr. of H’rg of 1/9/08 at 58:4-7), which plaintiffs had been threatening to

13 propound since December 20, 2007, but once again the Court ensured that Taco Bell would

14 receive a reasonable extension of time to respond by March 10, 2008. (Tr. of H’rg of 1/9/08 at

15 34:9-13; 59:24-25; Order of 1/18/08 at 2:20-24; docket #359.) Following the issuance of the

16 January 18, 2008 order containing the Court’s augmentation rulings, (Order of 1/18/08 at

17 2:20-24, 3:9-10; docket #359), plaintiffs ultimately served their modified “2" interrogatories

18 with leave of Court on January 22, 2008.

19

Despite all of the foregoing, two days later, on January 24, 2008, plaintiffs inexplicably

20 proceeded to serve “3" additional interrogatories, which appear to be once again far more than

21 the stated number of interrogatories in reality, without seeking leave of court. Taco Bell

22 objected to such interrogatories on February 28, 2008, inter alia, noting the violation of the 100

23 14 One of the interrogatories sought the factual basis for construction tolerances
24 relating to more than 67 elements. The other interrogatory incorporated by reference plaintiffs’ second set of requests for admissions seeking 100 admissions, and sought the factual basis for
25 potential denials of such requests. The Court held such RFA-related interrogatory to be overbroad and refused to allow “contention” interrogatories pertaining to requests for
26 admissions 1-22 and 98-100. (Tr. of H’rg of 1/9/08 at 58:8-10) (“I am not allowing augmentation as to the goings-on in the parties in the draft order. Take those off the table.”);
27 see also id. at 18:14-22; 58:16-19. The Court also noted the impropriety of using interrogatories premised upon requests for admissions in order to avoid the interrogatory limit.
28 Id. at 17:5-25; 18:14-22; 22:20-23:2; 23:4-6.

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1 interrogatory limit. Thereafter, plaintiffs failed to meet and confer at all in response to any of

2 Taco Bell’s objections.

3

Upon reading plaintiffs’ portion of the JCMS received via e-mail on the morning of

4 May 7, 2008 (one day before the JCMS was due), Taco Bell learned for the first time that

5 plaintiffs now seek a blanket request for 25 additional unspecified interrogatories. As an initial

6 matter, plaintiffs have not made a genuine effort to meet and confer as to such request prior to

7 seeking relief from the Court. Moreover, plaintiffs seek to avoid satisfying the good cause

8 standard for such augmentation of the interrogatory limit, and seek to avoid having to request

9 leave of court “each time”. With all due respect, requesting leave of court is not a meaningless

10 gesture. Given that the interrogatory limit has already been subject to abuse, Taco Bell objects

11 to such request. If plaintiffs seek further augmentation of the 100 interrogatory limit, then they

12 should be required to identify the precise interrogatory they intend to propound, satisfy the

13 good cause standard by demonstrating why they need to further exceed the 100 interrogatory

14 limit, and provide Taco Bell with a reasonable opportunity to respond including an appropriate

15 extension of time, if necessary. Thus, Taco Bell submits that the Court should insist that

16 plaintiffs comply with the good cause standard each and every time they seek to propound any

17 additional interrogatories.

18 9. Class Actions.

19

a. Plaintiffs’ Statement.

20

On February 23, 2004, the Court certified the following class:

21

All individuals with disabilities who use wheelchairs or electric scooters for

mobility who, at any time on or after December 17, 2001, were denied, or are

22

currently being denied, on the basis of disability, full and equal enjoyment of the

goods, services, facilities, privileges, advantages, or accommodations of

23

California Taco Bell corporate restaurants.

24 Moeller, 220 F.R.D. at 613-14 (Docket No. 84).

25

26

27

28

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1

b. Defendant’s Statement.

2

On February 24, 2004, the Court certified a class under Rule 23(b)(2).15 Notice has not

3 been provided to any class members providing them with an opportunity to opt out of Stage II,

4 i.e., the damages stage, of this action.

5

Taco Bell submits that the individualized proof required for class members to recover

6 state law damages is not suited for class action treatment, and that the Court should revisit

7 Judge Jenkins’ class certification of the damages claims in this action (order of 2/24/04; docket 8 #84), which is ambiguous because it is silent as to whether it includes deterrence claims.16

9 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 444 (N.D. Cal. 1994)

10 (Henderson, C.J.) (“a federal court has the discretion to revisit at any time all or any part of a

11 class certification order in an action pending before it”).

12 10. Related Cases.

13

a. Plaintiffs’ Statement.

14

It is Plaintiffs’ understanding that a number of individual disability access cases against

15 Taco Bell have been stayed pending the resolution of the present litigation. The only case

16 Plaintiffs believe is technically related to this one is Saldana-Neily v. Taco Bell of America,

17 Inc., Case No. C 04-04571-PJH (N.D. Cal.).

18

19

15 The class consists of: “All individuals with disabilities who use wheelchairs or

20 electric scooters for mobility who, at any time on or after December 17, 2001, were denied, or

are currently being denied, on the basis of disability, full and equal enjoyment of the goods,

21 services, facilities, privileges, advantages, or accommodations of California Taco Bell

corporate restaurants.” (Order of 2/23/04 at 15; docket #84.)

22

16 In Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal.

23 1994) (Henderson, C.J.), then-Chief Judge Henderson refused to certify for class treatment

monetary claims based upon a deterrence theory of liability:

24

“[T]he fact that [deterrence] claims are actionable is not dispositive of the

question of whether they ought properly to be certified as part of a class action.

25

Unlike claims based on actual theater visits, claims alleging incidents of

deterrence are not susceptible to clear, direct proof. As a consequence,

26

‘deterrence’ claims raise individual-specific issues that would substantially

increase the complexity of the case, were they certified as part of this class

27

action.”

Id. at 453. “Exercising this discretion, the Court rules that plaintiffs’ deterrence claims

28 are inappropriate for class certification.” Id. at 453.

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1

b. Defendant’s Statement.

2

Numerous cases including a case captioned Saldana-Neily v. Taco Bell of America,

3 Inc., et al., No. C 04-04571 PJH (N.D. Cal. filed Oct. 28, 2004), have either been stayed or

4 dismissed without prejudice subsequent to the inception of this action.

5 11. Relief.

6

a. Plaintiffs’ Statement.

7

The class seeks an injunction requiring Taco Bell to bring its corporate stores in

8 California into compliance with Title III of the ADA, Unruh, and the CDPA, including but not

9 limited to achieving and maintaining compliance with the DOJ Standards and Title 24 and

10 implementing policies sufficient to ensure that class members do not experience discrimination

11 on the basis of disability. The class seeks minimum statutory damages of $4,000 (under Unruh,

12 see Cal. Civ. Code § 52(a)) or $1,000 (under the CDPA, see Cal. Civ. Code § 54.3) for each

13 instance on which a class member was denied equal access to a Taco Bell corporate restaurant

14 in California from December 17, 2001 to the date of that class member’s damages trial.

15 Finally, the class seeks its reasonable attorneys’ fees and costs.

16

b. Defendant’s Statement.

17

The complaint seeks injunctive relief under the federal ADA claim and pendent state

18 law claims. The complaint also seeks monetary damages under the state law claims. If liability

19 is established, “to maintain an action for damages pursuant to section 54 et seq. an individual

20 must take the additional step of establishing that he or she was denied equal access on a

21 particular occasion.” Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 183, 266 Cal. Rptr.

22 804 (Cal. Ct. App. Feb. 23, 1990) (Merrill, J.) (emphasis added). Without such proof,

23 individual class members are not entitled to recover statutory minimum damages under

24 California law.

25 12. Settlement and ADR.

26

a. Plaintiffs’ Statement.

27

The parties have attempted mediation on three occasions: a four-day mediation (two

28 two-day sessions) with the assistance of Judge Edward Infante (JAMS) in the summer of 2004;

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1 a one-day meeting among the parties in January 2006; and a half-day mediation in March 2008

2 with the assistance of Judge William Cahill (JAMS). None of these sessions was successful.

3 Plaintiffs remain open to future opportunities to discuss settlement, but do not believe it would

4 be productive to delay the litigation toward such end.

5

b. Defendant’s Statement.

6

The parties have participated unsuccessfully in mediation on two separate occasions

7 first in or about May and July 2004 and more recently in March 2008.

8 13. Consent to Magistrate Judge For All Purposes.

9

a. Plaintiffs’ Statement.

10

Plaintiffs do not consent to a magistrate for all purposes.

11

b. Defendant’s Statement.

12

Defendant does not consent to have a magistrate judge conduct all further proceedings.

13 14. Other References.

14

a. Plaintiffs’ Statement.

15

Plaintiffs understand that the Court has referred discovery issues to Magistrate Judge

16 Larson. In addition, as noted above, Judge Jenkins appointed a Special Master to survey the

17 stores at issue in the litigation.

18

b. Defendant’s Statement.

19

On October 5, 2004, the Court appointed a Special Master, Bob Evans, to conduct

20 surveys of approximately 220 Taco Bell California company-owned stores (less 20 stores

21 previously inspected by Mr. Evans that were part of an initial Pilot Program), and prepare

22 written interim survey reports reflecting his dimensions, values, or measurements to be

23 completed by June 30, 2005. The Special Master surveyed the stores and determined whether

24 an element was compliant or non-compliant based solely on the new construction standards of

25 the ADAAG and the then-most recent version of the California Building Standards Code set

26 forth in Title 24 of the California Code of Regulations. Thus, any determination of

27 non-compliance by the Special Master did not take into consideration any defenses or

28 exceptions provided under the ADA or state law. Similarly, the Special Master did not

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1 determine whether any particular element was compliant or non-compliant at any time other

2 than during his visit to a particular store.

3

Pursuant to section 7(d) of the order appointing the Special Master, the parties were

4 supposed to meet and confer once a month to discuss disputes regarding dimensions, values, or

5 measurements in the interim survey reports, but such meet and confer process did not occur

6 because of delays in receiving the Special Master’s interim survey reports. Indeed, plaintiffs

7 expressly requested that the parties hold off on sending disputed issues to the Special Master so

8 that he could complete the surveys on time. In a letter to defense counsel dated June 17, 2005,

9 plaintiffs expressed their desire to “start our meet and confer process” after the final batch of

10 Special Master reports were scheduled to be received on or about June 30, 2005. In the

11 summer of 2005, Taco Bell requested plaintiffs’ permission to confer with the Special Master

12 about how measurements for various elements were taken. Plaintiffs refused. Ultimately, the

13 Court granted Taco Bell permission to inquire as to the Special Master’s measurement

14 methodology as to certain elements, which the Special Master provided in December 2007.

15 Because Taco Bell has invoked paragraph 7(d), the Court has refused to entertain the Special

16 Master’s measurements as findings of fact. (Order of 9/24/07; docket #324.)

17

Plaintiffs’ recitation omits to mention that plaintiffs unilaterally filed without leave of

18 Court the Special Master’s Interim Survey Reports and not the Final Survey Reports that were 19 expressly contemplated by the order appointing the Special Master.17 (Order of 10/5/04 at

20 11:5-12:6; docket #101.) On January 12, 2007, Taco Bell responded, with leave of court, by

21 filing 379 pages of objections. (Objections of 1/12/07; docket #247.) As mentioned above, the

22 Court has refused to enter any findings of fact to date. (Order of 9/24/07; docket #324.)

23

24

25 17 In April through June 2006, plaintiffs provided Taco Bell with approximately
26 220 “meet and confer” charts. Taco Bell responded with specific written chart responses

corresponding with approximately 20 specific stores, but due to the redundancy of certain 27 issues, subsequently served approximately 248 pages of responses on October 18, 19, 2006 and

December 7, 2006. To the extent plaintiffs assert that Taco Bell never provided such 28 responses, as appears to be the case at the January 9, 2008 Status Conference, (Tr. of H’rg of

1/9/08 at 23:12; Docket #358), such contention is misleading.

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1 15. Narrowing of Issues.

2

a. Plaintiffs’ Statement.

3

Judge Jenkins had bifurcated the trial into a liability phase and a remedial phase. The

4 liability phase was to establish whether there were violations of the ADA or California law in

5 the restaurants at issue during the class period. It was not to address relief, whether injunctive

6 or monetary. (See Tr. of Proceedings (9/27/07) at 19 (Docket No. 330); Tr. of Proceedings

7 (1/9/08) at 10-11 (Docket No. 358).) A second, remedial, phase was to address both injunctive

8 relief and class damages.

9

In September, 2007, Judge Jenkins ordered that the liability phase was to be addressed

10 first through a “bellwether” trial of 20 stores. This will provide an opportunity to resolve legal

11 and factual issues common to all 220 stores in the course of a more limited and efficient trial.

12 The parties met and conferred and have selected the 20 stores, which was memorialized by

13 order of Judge Jenkins. (Docket No. 338.) Since that time, discovery has gone forward

14 relating to issues to be tried during the bellwether trial.

15

In addition, Plaintiffs believe that the issues for trial can be significantly narrowed

16 through a dispositive motion addressing a number of remaining elements as to which the law

17 and facts are either undisputed or may be resolved as a matter of law.

18

Following the bellwether trial, Plaintiffs have proposed that the parties meet and confer

19 and present to the Court their proposals for applying the results of that trial to the remaining

20 restaurants, which should also considerably streamline the remaining issues.

21

b. Defendant’s Statement.

22

On August 10, 2005, the Court held that the currently-defined class does not have

23 standing to challenge the accessibility of various elements such as locks and flush controls

24 because such elements do not fall within the scope of the mobility-impaired class members.

25 (Order of 8/10/05 at 5:13-6:28; Docket #188.)

26

Pursuant to the parties’ request, this Court has already bifurcated the action so that

27 Stage I pertains to injunctive relief claims and Stage II pertains to the state law damages claims.

28 (Joint Pre-Trial Briefing Schedule and Order of 2/25/05 at 3:4-5; docket #169) (adopting the

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1 Joint Pre-Trial Order submitted jointly by the parties wherein the parties stated that they “agree

2 that Stage I of these proceedings will determine equitable relief for the class in this case”)

3 (emphasis added). This Court has further bifurcated the Stage I trial by ordering a mini trial as

4 to 20 stores only to be conducted on November 10, 2008 at 8:30 a.m. (Docket #338.)

5

Taco Bell contends that Stage I will include a determination of which elements

6 surveyed by the Special Master were in compliance with applicable accessibility standards on

7 the date surveyed.

8

Taco Bell believes that a Stage I liability determination will not result in any

9 presumptions of liability for damages in Stage II because even if a class member with a

10 qualifying disability were to show that he or she visited a Taco Bell restaurant at which an

11 architectural element was found to have been out of compliance with applicable standards at

12 the time such element was surveyed during Stage I of these proceedings, the class member

13 nonetheless would have the burden to show (1) the architectural element was out of compliance

14 with applicable standards at the time of the class member’s visit to the restaurant; (2) the class

15 member, in fact, attempted to access the out-of-compliance element; and (3) the class member

16 was hindered or obstructed in his or her access to or enjoyment of the restaurant as a result of

17 the failure of the element to comply with applicable standards. Taco Bell contends, however,

18 that a Stage I determination that a particular architectural element was in compliance with the

19 applicable standards will establish that there was no violation during Stage II for all class

20 members who encountered the architectural element in the same condition as when it was

21 surveyed.

22

Although plaintiffs argue that the upcoming mini trial shall merely address “liability”

23 without regard to injunctive relief, liability cannot be determined without a concurrent

24 determination as to the appropriate remedy. The Court cannot make a determination of liability

25 without considering whether the relief sought is appropriate. San Francisco Baykeeper, Inc. v.

26 Browner, 147 F. Supp. 2d 991, 996 (N.D. Cal. 2001) (Legge, J.) (“Plaintiffs’ present motion

27 for summary judgment deals only with the issues of liability, and not with remedies. But

28

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1 because the claims of the complaint . . . seek equitable relief, the issues of liability and remedy

2 are not so neatly divided.”).

3

Given that it is black letter law that a Title III ADA claim can only provide injunctive

4 relief and no monetary damages, a so-called Bellwether trial as to 20 stores only makes sense if

5 such trial addresses plaintiffs’ injunctive relief claims. Otherwise, such a limited trial would

6 not materially advance the resolution of the claim over which this Court has original

7 jurisdiction. After all, if the Court determines that no injunctive relief should be awarded to

8 plaintiffs, then plaintiffs’ ADA claim should be dismissed, and the Court should decline to

9 exercise supplemental jurisdiction over plaintiffs’ state law claims for monetary damages

10 because of the novelty or complexity of trying such state law claims, the substantial

11 predominance of the state law claims over the dismissed ADA claim, and because of the

12 dismissal of all claims over which the Court had original jurisdiction.

13

Although plaintiffs appear to argue, as before, that a Stage I trial shall establish

14 evidentiary presumptions that will apply during Stage II, it is worth noting that this Court

15 consistently refused to adopt plaintiffs’ position despite having various opportunities to do so.

16 The preclusive effect, if any, of the mini trial should await the outcome of such trial.

17

Finally, plaintiffs’ assumption that legal and factual issues “common to all 220 stores”

18 shall be resolved via the mini trial is overly optimistic. As for the approximately half of the

19 stores at issue that are subject to the “readily achievable” legal standard because they were

20 constructed before January 26, 1993, it is black letter law that barrier removal is decided on a

21 case-by-case basis in light of the particular circumstances at the facility at issue. Colorado 22 Cross Disability Coalition v. Hermanson Family Ltd.,18 264 F.3d 999, 1009 (10th Cir. 2001)

23 (holding that the ADA regulations state that whether removal of a barrier is readily achievable

24 is subject to a case by case inquiry and applying such requirement “in light of the particular

25

26

27

28

18 Plaintiffs’ lead counsel in the instant action was also lead counsel in Colorado

Cross-Disability.

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1 circumstances”).19 In this regard, during the Court-ordered selection of up to 20 stores subject

2 to the mini trial, Taco Bell expressly noted that it did not believe that the 20 stores selected for

3 the mini trial would be representative of the issues to be litigated at trial as to other stores.

4 (Letter from G. Hurley to Court of 10/8/07 at 1; Docket #332.)

5 16. Expedited Schedule.

6

a. Plaintiffs’ Statement.

7

The bellwether approach described in paragraph 15, supra, will expedite the resolution

8 of common issues.

9

b. Defendant’s Statement.

10

This action should not be handled on an expedited basis.

11 17. Scheduling.

12

a. Plaintiffs’ Statement.

13

Judge Jenkins had set this case for a two-week trial to the bench starting November 10,

14 2008. It is Plaintiffs’ understanding that this date is not available as a first setting on this

15 Court’s calendar.

16

Plaintiffs respectfully propose the following deadlines.

17 Designation of experts and expert reports:
18 Designation of supplemental
19 or rebuttal expert and reports

September 11, 2008 October 1, 2008

20 Expert and fact discovery cutoff November 28, 2008

21 Dispositive motion deadline

December 19, 2008

22 Dispositive motion hearing

To be discussed at Case Management Conference.

23 Pretrial conference

To be discussed at Case Management Conference.

24 19 28 C.F.R. Pt. 36, App. B, at 647; see also Panzica v. Mas-Maz, Inc., No. CV 05-
25 2595 (ARL), 2007 WL 1732123, at *8 (E.D.N.Y. June 11, 2007) (Lindsay, Mag. J.) (“Whether
the removal of an architectural barrier is readily achievable is to be decided on a case-by-case 26 basis utilizing all of the statutory factors.”); Guzman v. Denny’s Inc., 40 F. Supp. 2d 930, 935
(S.D. Ohio Feb. 4, 1999) (Dlott, J.) (quoting 56 Fed. Reg. 35544, 35568) (“Whether or not any 27 of these measures is readily achievable is to be determined on a case-by-case basis in light of
the particular circumstances presented and the factors listed in the definition of readily 28 achievable”) (DOJ final rule).

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1 Trial: Plaintiffs respectfully request that the bellwether trial be commenced as soon as

2 possible. Since this case was filed in December 2002, several class members have died.

3 Further, there are several significant legal and factual disputes between the parties, and one of

4 the purposes of the bellwether trial is to resolve these disputes. Until that occurs, there is no

5 realistic chance of settlement. Finally, because the bellwether trial is to the Court, it does not

6 need to be tried in one setting, but rather can be tried a week at a time as the Court’s schedule

7 permits.

8

b. Defendant’s Statement.

9

On September 28, 2007, this Court issued a Pretrial Order (docket #329) setting forth

10 cut-off dates for non-expert discovery (June 27, 2008), designation of experts (July 11, 2008),

11 expert reports (July 18, 2008), designation of supplemental/rebuttal experts (August 1, 2008),

12 expert discovery cut-off (August 22, 2008), the hearing of dispositive motions (October 7, 2008

13 at 9:30 a.m.), the pretrial conference date (November 4, 2008 at 3:30 p.m.), and trial date

14 (November 10, 2008 at 8:30 a.m.). Given that the current pretrial dates are premised upon the

15 predecessor judge’s calendar, if this Court is unable to conduct such mini trial on November

16 10, 2008, then Taco Bell is amenable to such mini trial on whatever subsequent date is

17 available to the Court.

18 18. Trial.

19

a. Plaintiffs’ Statement.

20

The bellwether trial will be to the Court. Plaintiffs predict it will take two to three

21 weeks. Because it is to the Court, Plaintiffs respectfully propose that if more time is needed

22 than is available on the Court’s docket starting on August 10, 2009, the trial be adjourned and

23 reconvened at a later date.

24

b. Defendant’s Statement.

25

As previously mentioned in headings 8 and 15, supra, pursuant to the parties’

26 agreement, this Court bifurcated the trial with Stage I to address injunctive relief and Stage II to

27 address damages. Although this Court subsequently further limited the scope of a Stage I trial

28 by ordering a mini trial currently scheduled for November 10, 2008 as to only 20 stores at issue

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1 in this action, the fact remains that such so-called “Bellwether” trial shall address only

2 plaintiffs’ injunctive relief claims (pertaining to 20 stores only) and not plaintiffs’ state law

3 damages claims.

4 19. Disclosure of Non-party Interested Entities or Persons.

5

a. Plaintiffs’ Statement.

6

The parent company of defendant Taco Bell Corporation is Yum! Brands, Inc.

7 Plaintiffs are not aware of any other party that has either (i) a financial interest in the subject

8 matter in controversy or in a party to the proceeding; or (ii) any other kind of interest that could

9 be substantially affected by the outcome of the proceeding.

10

b. Defendant’s Statement.

11

Taco Bell Corp. and Taco Bell’s parent, Yum! Brands, Inc., have a financial interest.

12

13 20. 14 15 16 17 18

Such Other Matters as May Facilitate the Just, Speedy and Inexpensive Disposition of this Matter. a. Plaintiffs’ Statement. Nothing at this time. b. Defendant’s Statement. None.

19

20

21

22

23

24

25

26

27

28

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1 2 3 4 Respectfully submitted, 5 6 7 May 8, 2008 8 9 10 11 12 13
May 8, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. C 02-05849 PJH JL Joint Case Management Statement

FOX & ROBERTSON, P.C. BY: /s/ Timothy P. Fox
Timothy P. Fox Counsel for Plaintiffs Francie Moeller, Edward Muegge, Katherine Corbett and Craig Thomas Yates GREENBERG TRAURIG, LLP BY: /s/Gregory F. Hurley
Gregory F. Hurley Counsel for Defendant Taco Bell Corp.
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6

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UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 Francie E. Moeller,

No. C 02-5849 PJH (JL)

12

Plaintiff,

13

v.

14 Taco Bell Corporation, et al.,

ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION TO COMPEL DISCOVERY (Docket # 361)

15

Defendants.

________________________________/

16

17

The Court received briefing and heard argument on Plaintiffs’ motion for an order

18 compelling Defendant to produce documents and information, withheld by Defendant as

19 privileged, related to modifications and alterations made by Alianza Development

20 International, LLC (“Alianza”) at the 20 Taco Bell corporate restaurants that were the

21 subject of the trial formerly scheduled to begin on November 10, 2008 (“Bellwether

22 Restaurants”). (Docket # 361).

23

While this discovery motion was under submission, the district court issued a case

24 management and scheduling order (Docket # 386) which sets the discovery deadlines for

25 Plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) well into mid-2009. The

26 hearing on dispositive motions on the subject of ADA liability will be held September 23,

27 2009.

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1

But even before that issue is considered, the parties will brief Defendant’s motion for

2 partial summary judgment on the statute of limitations as applied to claims under both the

3 Fair Housing Act and the ADA. The hearing on that motion will be held September 23,

4 2008. If successful, Taco Bell claims that its motion would significantly narrow the scope

5 and complexity of the case given that approximately half of the stores at issue are “new

6 construction” because they were built after January 26, 1993. If successful, Taco Bell’s

7 motion would also clarify that plaintiffs have to meet the “readily achievable” legal standard

8 for approximately 110 stores that were constructed before January 26, 1993 instead of the

9 potentially complex “alterations” legal standard and its 20% disproportionality analysis. 28

10 C.F.R. § 36.403(a) & (f)(1).

11

This Court finds that the contours of this case may be significantly altered by the

12 district court’s ruling on Taco Bell’s motion for partial summary judgment on the statute of

13 limitations and that the time line for discovery on ADA liability has been extended. The

14 discovery which is the subject of the motion before this Court may or many not be relevant,

15 depending on the district court’s ruling. Accordingly, in the interest of judicial economy and

16 to facilitate the case’s progress with less distraction and expense, this Court hereby denies

17 Plaintiffs’ motion without prejudice to renewal later in the case.

18

IT IS SO ORDERED.

19 DATED: July 8, 2008

20

__________________________________

21

JAMES LARSON

Chief Magistrate Judge

22

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UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 Francie E. Moeller,

No. C 02-5849 PJH (JL)

12

Plaintiff,

13

v.

14 Taco Bell Corporation, et al.,

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL ANSWERS TO INTERROGATORY 6 (Docket # 392)

15

Defendants.

________________________________/

16

Introduction

17

Plaintiffs’ motion to compel answers to Interrogatory 6 came on for hearing. All

18

discovery has been referred by the district court (Hon. Phyllis J. Hamilton) pursuant to 28

19

U.S.C. §636(b) and Civil Local Rule 72. Brad Seligman, THE IMPACT FUND, appeared for

20

Plaintiff. Richard Hikida, GREENBERG TRAURIG, appeared for Defendant Taco Bell. The

21

matter having been fully considered, and good cause appearing, it is hereby ordered that

22

the motion is granted.

23

Background

24

This case is an ADA access case brought as a class action against Taco Bell,

25

pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. §12181 et seq.

26

27

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Taco Bell took certain measures (“Completed Measures”) to remedy or remove

2 architectural barriers in its restaurants that impeded access to people who use wheelchairs

3 or scooters for mobility. However, it contends that the Completed Measures were not

4 readily achievable for purposes of Title III of the Americans with Disabilities Act, 42 U.S.C.

5 §12181 et seq. Plaintiffs seek an order compelling Taco Bell to disclose the reasons,

6 documents, and witnesses supporting this contention.

7

Title III defines “readily achievable” as “easily accomplishable and able to be carried

8 out without much difficulty or expense,” and sets forth factors relevant to this analysis,

9 including the cost and operational impact of barrier removal measures, and the defendant’s

10 resources. 42 U.S.C. §12181(9). Plaintiffs have identified with great specificity the precise

11 measures that they contend Taco Bell should take to remove barriers in its California

12 restaurants. Taco Bell has asserted as a defense in this litigation that the changes sought

13 by Plaintiffs are not readily achievable. (Answer to Amended Complaint, filed Aug. 13,

14 2003, Docket # 37).

15

To explore the bases for this defense, on December 11, 2007, Plaintiffs served

16 interrogatories on Taco Bell, including Interrogatory 6, which asked Taco Bell to identify for

17 which of specific barriers, identified by Plaintiffs, Taco Bell contended removal was not

18 readily achievable and to state, for each: (1) the basis for that contention, all documents

19 supporting that contention, and all persons with knowledge relating to such contention. (Ex.

20 1 to Declaration of Timothy Fox ISO motion to compel).

21

In its response, and throughout the meet and confer process, Taco Bell responded

22 that none of the measures identified by Plaintiffs, even restriping a parking space or

23 lowering a restroom grab bar, would be readily achievable. Taco Bell objected that the

24 interrogatory was burdensome, as it addresses “415 elements throughout 226 pages of

25 documents.” (See Ex. 2 to Fox Declaration). Taco Bell also objects that it has already

26 produced a “mountain of evidence” supporting its contention, that Plaintiffs have failed to

27 meet their evidentiary burden of showing that barrier removal is readily achievable, and that

28

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1 Taco Bell cannot give particularized responses without expert assistance (Joint Statement

2 at 4-6 - filed April 30, 2008, at Docket # 373).

3

Analysis and Conclusion

4

Taco Bell cannot reasonably rely solely on the document production option of FRCP

5 33(d) to respond to a contention interrogatory. U.S. Securities and Exchange Commission

6 v. Elfindepan, S.A., 206 F.R.D. 574 (M.D.N.C. 2002) (finding that responding to contention

7 interrogatory with documents imposed unequal burden on party propounding the

8 interrogatory).

9

In the Elfindepan case the court laid out the formula for deciding when to permit

10 33(d) to be used generally:

11

[When a party files a motion to compel]. At that time, such party must make a prima

12

facie showing that the use of Rule 33(d) is somehow inadequate to the task of answering the discovery, whether because the information is not fully contained in

13

the documents, is too difficult to extract, or other such reasons. The burden then shifts to the producing party to justify use of Rule 33(d) instead of answering the

14

interrogatories.

15

U.S. S.E.C. v. Elfindepan, S.A. 206 F.R.D. 574, 576 (M.D.N.C.,2002)(Internal citations omitted)

16 The court in that case found that the party which propounded the interrogatory met its
17 burden to show that 33(d) was inappropriate by showing that the answering party was
18 relying on a witness who gave conflicting answers, and whose testimony was spread over a
19 number of transcripts and voluminous documents. The court found that this would make it
20 difficult for the party which propounded the interrogatory to know upon which documents the
21 responding party would rely as the source of its contentions. The burden then shifted to the
22 party attempting to use Rule 33(d):
23

24

The producing party must satisfy a number of factors in order to meet its justification burden. First, it must show that a review of the documents will actually reveal

25

answers to the interrogatories. In other words, the producing party must show that the named documents contain all of the information requested by the interrogatories.

26

Crucial to this inquiry is that the producing party have adequately and precisely specified for each interrogatory, the actual documents where information will be

27

found. Document dumps or vague references to documents do not suffice. Depending on the number of documents and the number of interrogatories, indices

28

may be required.

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2

A second burden imposed on the producing party is to justify the actual shifting of the perusal burden from it to the requesting party. Rule 33(d) by its nature, of course,

3

contemplates shifting the burden, but its text also explicitly establishes the minimum threshold to be that “the burden of deriving or ascertaining the answer [must be]

4

substantially the same for the party serving the interrogatory as for the party served ....” Fed.R.Civ.P. 33(d).

5

Id. at 574, 576- 577 (Internal citations omitted)

6

But most significantly, the court held:

7 Plaintiff fails to meet its burden for another reason. As shown next, defendants

8

propounded contention interrogatories. Rule 33(d) may not be used as a substitute

for answering such interrogatories. Only plaintiff can identify its own contentions and

9

the burden on defendants to try and divine plaintiff's contentions from documents

obviously imposes a greatly unequal burden on defendants.

10

11

Id. at 574, 577 (Emphasis added)

12

See also Fresenius Med. Care Holding Inc. V Baxter Int’l Inc., 224 F.R.D. 644, 652

13 (N.D.Cal. 2004) (“reliance upon Rule 33(d) is misplaced” in responding to contention

14 interrogatories). The court in Fresenius expressly found that the burden of extracting

15 answers to contention interrogatories from documents was unequal and unfairly fell on the

16 party propounding the interrogatories.

17

Fresenius, however, also seeks the identity of the individual that Baxter contends had

actual notice of the patents-in-suit. Baxter attempts to rely upon Rule 33(d), but its

18

reliance upon Rule 33(d) is misplaced. Rule 33(d) was not designed to save a party

the effort of extracting information from a limited universe of documents. SEC v.

19

Elfindepan, S.A., 206 F.R.D. 574 (M.D.N.C.2002). Baxter identified only thirteen

documents in which the information can be found. Additionally, Baxter is more

20

familiar with its contentions than is Fresenius, so the burden is not equal.

21

Fresenius, Id. at 652

22

Accordingly, when a party responds to contention interrogatories by relying on FRCP

23 33(d) it is highly likely that this imposes an unequal burden on the party who propounded the

24 interrogatories. Consequently, relying exclusively on document production pursuant to

25 FRCP 33(d) to answer contention interrogatories is under most circumstances

26 impermissible.

27

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1

Plaintiffs offer a specific example which shows how hard it would be for them to

2 guess at Taco Bell’s rationale for asserting that a measure is not readily achievable.

3 Plaintiffs attached to their Opening Brief an invoice showing that Taco Bell restriped an

4 accessible parking space at one of its restaurants at a cost of less than $500. (Ex. 3 to Fox

5 Decl.) Plaintiffs infer that this document supports a contention that this measure is readily

6 achievable. Taco Bell to the contrary contends that this document is irrelevant because it

7 “involved a contractor whose bid or work was not overseen by Taco Bell’s project

8 managers,” and that Plaintiffs only “discern[] what they believe to be the precise cost

9 estimate for line striping” at that restaurant. (Opposition at 12 n. 12)

10

This demonstrates why Taco Bell should not be permitted to rely exclusively on Rule

11 33(d) in responding to Plaintiffs’ contention interrogatories: Taco Bell appears to be

12 contesting the obvious meaning of the document it produced: that a $500 receipt for striping

13 a parking space means that it cost $500 to stripe that parking space. In fairness to Taco

14 Bell, the document is a bid, not a receipt, but the exchange between the parties illustrates

15 the problem. If Taco Bell doesn’t expressly answer the interrogatory, but merely produces

16 documents, it is free to deny their obvious meaning and require Plaintiffs to attempt to read

17 Taco Bell’s mind, which is exactly the kind of “unequal burden” that the court rejected in the

18 Fresenius case.

19 During the meet and confer process, Taco Bell’s counsel offered to supplement Taco
20 Bell’s response to Interrogatory 6 by stating that the requested measures were not “readily
21 achievable” even after Taco Bell had made the modifications, because they were not “easily
22 accomplishable” and “able to be carried out without much difficulty or expense.” Counsel
23 offers to repeat this assertion with respect to each of the 415 measures Plaintiffs identified
24 as necessary to remove barriers to access at Taco Bell’s restaurants. (See Hikida
25 Declaration In Opposition at ¶17) This is not an appropriate response to Interrogatory 6.
26 Mere conclusions are not substitutes for answers stating not only Taco Bell’s contentions,
27 but on which specific facts, documents and witnesses it relies to support those contentions.
28

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1

Lack of 30(b)(6) Depositions doesn’t excuse Taco Bell

2

Taco Bell argues that Plaintiffs are maintaining their own ignorance, by failing to take

3 30(b)(6) depositions of persons most knowledgeable regarding 24 modifications at 13 of the

4 “Bellwether” stores regarding the “impact of the measures” “including without limitation the

5 cost of each such measure, the effect of each such measure on the expenses and

6 resources of the particular restaurant at issue, the effect of each such measure on the

7 overall financial resources of Taco Bell Corp. and Yum! Brands, Inc., and the impact on

8 operations of each such measure.” (Hikida Decl. ¶24; Opposition at 23:11-16). Taco Bell is

9 also complaining that it shouldn’t have to answer regarding its contentions until after

10 Plaintiffs depose its witnesses. This is reverse reasoning. Plaintiffs cannot competently

11 depose Taco Bell’s witnesses without knowing what its contentions are and what it relies on

12 to support them, including which witnesses support which contentions. If Taco Bell has

13 enough of a basis to assert that every single measure it has already taken was not readily

14 achievable, then it should be able to back up this contention with facts, documents, and

15 witnesses.

16 Non-discovery Issues
17 Plaintiffs at the hearing on this motion raised the question whether Taco Bell’s failure
18 to respond as to specific remedial measures might waive a measure-by-measure defense to
19 the claim that remedial measures are readily achievable. The parties in their pleadings also
20 raised the issue of their respective burdens of proof to show that remedial measures are or
21 are not readily achievable and whether an aggregate costs analysis may be used to
22 calculate achievability or whether individual remedial measures must be evaluated for
23 achievability. Taco Bell also complains that Plaintiffs have not commenced site inspections
24 “immediately” as ordered by the district court.
25

26

This Court finds that these are questions outside the scope of the discovery referral,

27 and are questions to be decided by the trial court.

28

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1

Order

2

This Court finds that Defendant’s responding to a contention interrogatory with

3 documents, pursuant to FRCP 33(d), imposes an unequal burden on Plaintiffs to discern

4 Defendant’s contentions. Accordingly, Plaintiffs’ motion to compel further responses to

5 Interrogatory 6 is granted. This Court orders Defendant to provide a concise narrative

6 response to Plaintiffs’ Interrogatory Number 6. Defendant shall identify the specific facts,

7 reasons and documents supporting its contention that any particular measure that it has

8 already taken to remedy or remove an architectural barrier was not readily achievable.

9 Compliance shall be due within twenty days of the issuance of this order.
10 IT IS SO ORDERED.
11

12

DATED: August 28, 2008

13

14

__________________________________

15

JAMES LARSON

Chief Magistrate Judge

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1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY(SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

7

8
UNITED STATES DISTRICT COURT 9

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 FRANCIE MOELLER, et al.,

14

Plaintiffs,

15 vs.

16 TACO BELL CORP.,

17

Defendant.

18

19

CASE NO. C 02-5849 PJH JL

NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT OF TACO BELL CORP.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[Declarations of Steve Elmer and Richard H. Hikida filed concurrently herewith]

DATE: TIME: CTRM: JUDGE:

October 29, 2008 9:00 a.m. 3, 17th Floor Hon. Phyllis J. Hamilton

20

21

22

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

23

PLEASE TAKE NOTICE that on October 29, 2008, at 9:00 a.m., or as soon thereafter as the

24 motion may be heard before the Honorable Phyllis J. Hamilton in Courtroom 3 of this Court, 450

25 Golden Gate Avenue, San Francisco, California, defendant Taco Bell Corp. hereby moves for partial

26 summary judgment.

27

This motion is based upon this Notice of Motion, the Memorandum of Points and Authorities in

28 support thereof, the concurrently-filed Declarations of Steve Elmer and Richard H. Hikida, all other

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1 papers and pleadings on record with this Court, and upon such other arguments and items as may be

2 presented to the Court at the hearing of this matter.

3 DATED: September 3, 2008

GREENBERG TRAURIG, LLP

4

5

By /s/

Gregory F. Hurley

6

Attorneys for Defendant

TACO BELL CORP. 7

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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION .................................................................................................................................. 1
4

5 II. STATEMENT OF THE ISSUES TO BE DECIDED........................................................................... 1

6 7 III. STATEMENT OF FACTS .................................................................................................................. 1

8

A. Plaintiffs Commenced This Action on December 17, 2002 ..................................................... 1

9

10

B. Plaintiffs Have Alleged the Existence of “Alterations” at 85 Stores Between January 27,

1992 and December 16, 2001 at Stores Constructed Before January 26, 199.......................... 2 11

12

C. Plaintiffs Have Alleged That 91 Stores Were Constructed After January 26, 1993 and

13

Before December 17, 2001 ....................................................................................................... 2

14 D. A Number of So-Called “New Construction” Taco Bell Stores Were Previously Owned

15

or Operated by Former Owners or Operators Such That They Are “Existing Facilities”

Whose Elements Were Constructed By Non-Taco Bell Owners or Operator .......................... 3 16

17

E. Each of the Four Class Representatives Claim to Have Visited Taco Bell Stores and to

18

Have Noticed Alleged ADA Violations Before the Applicable One-Year Limitations

Period ........................................................................................................................................ 4

19

20

1. Katherine Corbett........................................................................................................... 4

21

22

2. Francie Moeller.............................................................................................................. 4

23 3. Edward Muegge ............................................................................................................. 5
24

25

4. Craig Yates..................................................................................................................... 5

26

27

F. Plaintiffs Can Easily Find Out the Identity of the Owner and Operator of a Particular Store By Contacting the County Assessor’s Office.................................................................. 6

28

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1

G. Taco Bell’s Employees or Witnesses Such as Ed Medina Have Passed Away or Are No Longer Available to Testify...................................................................................................... 6

2

3 IV. ARGUMENT....................................................................................................................................... 6

4 A. Legal Standard .......................................................................................................................... 6
5

6

1. The Policies Underlying the Statute of Limitations Promote Justice By Encouraging

7

Litigants to Promptly File Suit to Prevent Unfair Litigation on Stale and Forgotten

Matters .......................................................................................................................... 6

8

9

2. The Applicable Statute of Limitations at Issue in the Instant Action Is One Year........ 8

10

11

B. The ADA Claim Against “New Construction” Stores that Were Constructed After January 26, 1993 and Before December 17, 2001 Is Time-Barred........................................................ 9

12

13

1. Garcia v. Brockway ....................................................................................................... 9

14 2. The FHA and the ADA Use the Same Language to Describe a Discriminatory Act .. 13
15

16

3. The Garcia Rule Applies Equally to ADA Actions Including the Instant Action ...... 13

17

18

a. Plaintiffs Have Alleged That 91 Stores Were Constructed After January 26,

1993 and Before December 17, 2001 ............................................................. 14

19

20

b. Plaintiffs Have Known About Alleged Architectural Barriers at Taco Bell

21

Stores Beyond the Applicable One-Year Limitations Period ......................... 15

22 c. Plaintiffs Could Have Obtained Information as to Owner, Operator, Lessor

23

and Lessee Information via Public Records Searches .................................... 15

24

d. Given that Article III Standing Exists Based on One Alleged Barrier, There

25

Was Nothing to Preclude the Class Members From Seeking Injunctive

26

Relief as to Any of the Alleged Barriers Prior to the Commencement of This Action...................................................................................................... 15

27

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e. The Ninth Circuit Seeks to Avoid Piecemeal Compliance with the ADA by Broadly Construing Article III Standing, Which Means that All Claims

2

Should Have Been Brought Without Delay.................................................... 16

3

f. Public Policy Counsels Against Stale Claims Being Delayed, Which

4

Results in Stale Evidence................................................................................ 16

5

1. Taco Bell’s Employees or Witnesses Such as Ed Medina Have

6

Passed Away or Are No Longer Available to Testify .......................... 16

7

2. Taco Bell Has Been Deprived of the Opportunity to Elicit Testimony

8

from Disabled Individuals Who Otherwise Would Have Been Class

Members Had They Not Passed Away During the 1990s and the

9

Early Portion of This Decade................................................................ 17

10 C. Plaintiffs’ “Alteration” Claims Are Time-Barred ................................................................... 17
11

12

1. Speciner v. Nationsbank, N.A. ..................................................................................... 17

13 2. Frame v. City of Arlington, Texas................................................................................ 18
14

15

3. Alterations Between January 27, 1992 and December 16, 2001 Are Time-Barred .... 18

16

17 V. CONCLUSION................................................................................................................................... 19

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1

TABLE OF AUTHORITIES

2 Federal Cases

Page

3

American Pipe & Constr. Co. v. Utah, 4 414 U.S. 538 (1974)................................................................................................................................ 7

5 Bagley v. CMC Real Estate Corp.,
6 923 F.2d 758 (9th Cir. 1991) ................................................................................................................. 7

7 Del. State College v. Ricks, 449 U.S. 250, 256-57, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980)........................................................... 11
8
9 Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) ........................................................................................................ 15, 16
10 Frame v. City of Arlington, Texas,
11 No. 4:05-cv-470-Y, slip op. (N.D. Tex. Mar. 31, 2008)................................................................. 13, 18
12 Garcia v. Brockway, 13 526 F.3d 456 (9th Cir. 2008) (Kozinski, C.J.) (en banc), petition for cert. filed, 77 U.S.L.W. 3075
(U.S. July 31, 2008) (No. 08-140) ................................................................................................. passim 14
Landreth v. United States, 15 850 F.2d 532 (9th Cir. 1988) .................................................................................................................. 7
16 Ledbetter v. Goodyear Tire & Rubber Co., 17 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007) .......................................................................................... 11

18 Maldonado v. Harris, 370 F.3d 945 (9th Cir. 2004) .................................................................................................................. 8
19

20 N.L.R.B. v. Cal. Sch. of Prof. Psych., 583 F.2d 1099 (9th Cir. 1978) ................................................................................................................ 7
21 Order of Railroad Telegraphers v. Railway Express Agency,
22 321 U.S. 342 (1944)................................................................................................................................ 7

23 Pickern v. Best Western Timber Cove Lodge Marina Resort,

24

No. CIV. S-00-1637 WBS/DA, 2002 WL 202442, at *5 (E.D. Cal. Jan. 18, 2002) ............................. 8

25 Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004)......................................................................................... 14, 15
26

27

Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622 (D. Md. 2002) ...................................................................................... 8, 13, 17, 18

28

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1

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977)................................................................ 11

2 United States v. Kubrick,
3 444 U.S. 111, 125, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979)............................................................ 7, 12

4 United States v. Marolf, 5 173 F.3d 1213 (9th Cir. 1999) ................................................................................................................ 7
6 United States v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996) ................................................................................................................. 7
7 Wood v. Carpenter,
8 101 U.S. 135 (1879)................................................................................................................................ 7
9
10 State Cases

11 Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (Cal. 1988)................................................................................................................ 7, 8
12

13

Jordache Enter., Inc. v. Brobeck, Phleger & Harrison, 18 Cal. 4th 739 (Cal. 1998)................................................................................................................. 7, 8

14 Lilly-Brackett Co. v. Sonnemann,
15 157 Cal. 192 (Cal. 1910)......................................................................................................................... 7

16 17 Federal Statutes 18 42 U.S.C. § 12182(a) .......................................................................................................................... 14, 15

19 42 U.S.C. § 12183(a)(1)................................................................................................................ 13, 14, 15

20 42 U.S.C. § 1983......................................................................................................................................... 8
21 42 U.S.C. § 3602(i)(1) .............................................................................................................................. 12 22
42 U.S.C. § 3604(f)(2) .............................................................................................................................. 12 23
42 U.S.C. § 3604(f)(3)(C)............................................................................................................. 10, 12, 13 24
25 42 U.S.C. § 3613(a)(1)(A) .................................................................................................................. 10, 12

26 42 U.S.C. § 3614(a) .................................................................................................................................. 13

27

28
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1 State Statutes 2 Cal. Civ. Proc. Code § 335.1 ...................................................................................................................... 8

3 Cal. Civ. Proc. Code § 340.3 ...................................................................................................................... 8

4 Federal Regulations
5
6 28 C.F.R. § 36.402(a)(1)........................................................................................................................... 18

7 28 C.F.R. § 36.403(a).................................................................................................................................. 1

8 28 C.F.R. § 36.403(f)(1) ............................................................................................................................. 1 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

MEMORANDUM OF POINTS AND AUTHORITIES

2

I

3

INTRODUCTION

4

Taco Bell Corp.’s (“Taco Bell”) motion, if granted, would significantly narrow the scope and

5 complexity of the case given that approximately half of the stores at issue are “new construction”

6 because they were constructed after January 26, 1993. Taco Bell’s motion would also clarify that

7 plaintiffs have to meet the “readily achievable” legal standard for approximately 110 stores that were

8 constructed before January 26, 1993 instead of the potentially complex “alterations” legal standard and

9 its 20% disproportionality analysis. 28 C.F.R. § 36.403(a) & (f)(1).

10

II

11

STATEMENT OF THE ISSUES TO BE DECIDED

12

Is plaintiffs’ ADA claim premised upon violation of “new construction” standards subject to

13 dismissal based upon the statute of limitations?

14

Is plaintiffs’ ADA claim premised upon alleged “alterations” standards subject to dismissal

15 based upon the statute of limitations?

16

III

17

STATEMENT OF FACTS

18 A. Plaintiffs Commenced This Action on December 17, 2002.

19

Plaintiffs commenced the instant action on December 17, 2002. (Original Compl. of 12/17/02;

20 Docket #1; Declaration of Richard H. Hikida of 9/3/08 (“Hikida decl.”) ¶ 3 Ex. 2.) The original

21 Complaint alleged that Taco Bell discriminated against plaintiffs and members of the putative class,

22 inter alia, based upon the following:

23

“d. Failing to design and/or construct restaurants built for first occupancy after

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

24

disabilities;

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

25

feasible, the altered portions of the restaurants are readily accessible to and usable by

individuals with disabilities, including individuals who use wheelchairs;

26

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

feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking

27

fountains serving the altered area, are readily accessible to and usable by individuals with

disabilities . . . .”

28

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1 (Original Compl. of 12/17/02 ¶ 53.) On February 5, 2003, Taco Bell filed an Answer to the original

2 Complaint, which included the third affirmative defense of statute of limitations. (Answer of 2/5/03 at

3 6:1-3; Docket #12; Hikida decl. ¶ 4 Ex. 3.) On August 4, 2003, plaintiffs pled the foregoing same

4 allegations in their First Amended Complaint, which added a state law claim under section 54.3 of the

5 California Disabled Persons Act (Cal. Civ. Code § 54.3). (First Am. Compl. of 8/4/03 ¶ 54; docket #36;

6 Hikida decl. ¶ 5 Ex. 4.) On December 21, 2004, Taco Bell filed its First Amended Answer to the

7 Plaintiffs’ First Amended Complaint, which included the second affirmative defense of statute of

8 limitations. (Answer of 12/21/04 at 5:14-16; Docket #155; Hikida decl. ¶ 6 Ex. 5.)

9 B. 10

Plaintiffs Have Alleged the Existence of “Alterations” at 85 Stores Between January 27, 1992 and December 16, 2001 at Stores Constructed Before January 26, 1993.

11

In April through June 2006, plaintiffs produced to Taco Bell as part of the litigation in this action

12 various Meet and Confer charts setting forth store-specific contentions for approximately 220 stores.1

13 (Hikida decl. ¶ 7.) Plaintiffs alleged in their Meet and Confer charts numerous purported “alterations”

14 that occurred between January 27, 1992 and December 16, 2001 at Taco Bell company-owned stores

15 constructed before January 26, 1993. In particular, plaintiffs have alleged the existence of “alterations”

16 that occurred during this time period at 85 stores, that is, store numbers 112, 137, 176, 283, 526, 567,

17 829, 863, 955, 991, 1034, 1827, 2241, 2297, 2423, 2700, 2755, 2756, 2778, 2801, 2812, 2848, 2861,

18 2910, 2914, 2915, 2918, 2930, 2933, 2961, 2968, 2971, 2984, 3027, 3046, 3064, 3070, 3078, 3089,

19 3090, 3096, 3119, 3125, 3132, 3184, 3196, 3207, 3208, 3209, 3222, 3390, 3398, 3420, 3471, 3498,

20 3555, 3579, 3904, 3948, 4027, 4034, 4054, 4168, 4192, 4204, 4211, 4284, 4311, 4325, 4342, 4343,

21 4355, 4356, 4466, 4510, 4518, 4558, 4578, 4617, 4704, 4799, 4951, 5019, 5081, 5138. (Hikida decl. ¶ 8

22 Ex. 7.)

23 C. 24

Plaintiffs Have Alleged That 91 Stores Were Constructed After January 26, 1993 and Before December 17, 2001.

25

Plaintiffs have claimed via Meet and Confer Charts that 91 stores were constructed after January

26 26, 1993 and before December 17, 2001 (i.e., store numbers 99, 5512, 5513, 5539, 5570, 5636, 5641,

27

1
28

The “meet and confer” process was contemplated by paragraphs 7(d) and 7(e) of the Order

Appointing Special Master filed on October 5, 2004. (Docket #101.)

2

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1 9407, 9414, 9417, 9427, 9454, 9489, 15319, 15362, 15379, 15455, 15507, 15508, 15570, 15573, 15614,

2 15625, 15723, 16140, 16276, 16336, 16370, 16381, 16478, 16520, 16534, 16812, 16819, 16909, 17181,

3 17224, 17243, 17363, 17435, 17471, 17473, 17529, 17556, 17572, 17576, 17751, 17984, 17997, 18003,

4 18112, 18315, 18377, 18577, 18606, 18687, 18701, 18808, 18901, 19289, 19298, 19344, 19389, 19413,

5 19498, 19509, 19515, 19532, 19591, 19744, 19950, 20052, 20175, 20180, 20190, 20204, 20241, 20310,

6 20353, 20566, 20578, 20635, 20646, 20676, 20690, 20758, 20893, 21000, 21018, 21047, 21226.)

7 (Hikida decl. ¶ 9 Ex. 8.) This is supported by certificates of occupancy issued by respective local

8 municipalities. (Declaration of Steve Elmer of 9/3/08 (“Elmer decl.”) ¶ 2 Ex. 1.)

9 D. A Number of So-Called “New Construction” Taco Bell Stores Were Previously Owned or

10

Operated by Former Owners or Operators Such That They Are “Existing Facilities”

Whose Elements Were Constructed By Non-Taco Bell Owners or Operators. 11

12

Plaintiffs have also claimed via Meet and Confer Charts that 13 additional stores are subject to

13 “new construction” standards because they were allegedly constructed after January 26, 1993 and before

14 December 17, 2001 (i.e., store numbers 124, 459, 1934, 3049, 3053, 3079, 3083, 3112, 3117, 3136,

15 3137, 3145, 3152), (Hikida decl. ¶ 10 Ex. 9), but they are, in reality, “existing facilities” that were

16 constructed before January 26, 1993 and were, in any event, previously owned and/or operated by non17 Taco Bell owners or operators.2 (Elmer decl. ¶ 3 Exs. 7-18.)

18

In addition, plaintiffs have also claimed via Meet and Confer Charts that 14 additional stores are

19 subject to “new construction” standards because they were allegedly constructed after January 26, 1993

20 and before December 17, 2001 (i.e., store numbers 15507, 15508, 15723, 16534, 17473, 17984, 18315,

21 18577, 19515, 19532, 19950, 20241, 20310, 20676), (Hikida decl. ¶ 12 Ex. 11), but they are, in reality,

22 subject to “existing facilities” standards because they were previously owned and/or operated by non-

23 Taco Bell owners or operators who presumably constructed the allegedly non-compliant elements at 24 issue.3 (Elmer decl. ¶ 5 Exs. 22-23.)

25

2

Similarly, store numbers 1687, 2007, 3007, which plaintiffs characterize as having been

26 constructed either within the 1 year limitations period or after the commencement of this action, (Hikida

27

decl. ¶ 11 Ex. 10), are “existing facilities” as well. (Elmer decl. ¶ 4 Exs. 19-21.) Such stores were previously owned and/or operated by non-Taco Bell owners or operators. Id.

3
28

Indeed, separate and apart from the 30 stores mentioned above, there were 60 prior operators at

Taco Bell store numbers 158, 176, 567, 1034, 1496, 2241, 2297, 2423, 2755, 2756, 2812, 2848, 2861,

3

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1 E. 2

Each of the Four Class Representatives Claim to Have Visited Taco Bell Stores and to Have Noticed Alleged ADA Violations Before the Applicable One-Year Limitations Period.

3

1. Katherine Corbett

4

Named plaintiff and class representative Katherine Corbett has been a Taco Bell customer for a

5 long time. (Corbett Dep. of 7/2/03 at 28-29; Hikida decl. ¶ 13 Ex. 12.) At the time of her July 2003

6 deposition, Corbett had used a wheelchair for mobility for 22 years. (Corbett Dep. at 13.) At the time

7 of her July 2003 deposition, Corbett had visited Taco Bell stores 2-3 times per month over the past 5

8 years. (Corbett Dep. at 29.) Corbett estimated that she frequently stopped off to get a drink at store

9 #4951, located in Novato, California, between 1990 and 1995, and continued to stop by that store 1-2

10 times per year since 1995. (Corbett Dep. at 103.) Corbett claims that store #4951 is not easy to get

11 around in. (Corbett Dep. at 103.)

12

2. Francie Moeller

13

As of her June 2003 deposition, named plaintiff Francie Moeller had patronized Taco Bell stores

14 since the 1970s and had visited on a fairly regular basis. (Moeller Dep. of 6/11/03 at 15; Hikida decl. ¶

15 14 Ex. 13.) Moeller estimated that she visited Taco Bell stores about 4-5 times per year, at minimum.

16 (Moeller Dep. at 15.)

17

Moeller has claimed to have encountered barriers at store #3948, which is located in Santa Rosa,

18 California for as long as she has visited that store, which she estimates as commencing in 1996 as soon

19 as she moved to the Santa Rosa area of California. (Moeller Dep. at 22-23.) Moeller claimed to have

20 encountered a barrier to access at store #3948 more than 2 years before her June 11, 2003 deposition.

21 As of the time of her June 2003 deposition, Moeller claimed to have visited store #4211, which is also

22 located in Santa Rosa, California, 4-6 times per year for at least 5-6 years. (Moeller Dep. at 63.)

23

24

25

26 2910, 2914, 2915, 2933, 2961, 2971, 3027, 3046, 3064, 3070, 3071, 3077, 3078, 3089, 3090, 3096,

27

3119, 3125, 3128, 3129, 3130, 3132, 3160, 3207, 3208, 3241, 3390, 3398, 3420, 3471, 3473, 4168, 4204, 15507, 15508, 15723, 16534, 17473, 17984, 18315, 18577, 19515, 19532, 19950, 20241, 20310,

28 20676. (Elmer decl. ¶ 6.) Plaintiffs have offered no explanation as to why they did not pursue timely claims against such prior operators.

4

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1

3. Edward Muegge

2

As of the time of his June 2003 deposition, named plaintiff Edward Muegge had been a Taco

3 Bell customer for 10-15 years or probably more. (Muegge Dep. of 7/3/03 at 52; Hikida decl. ¶ 15 Ex.

4 14.) Muegge began to use a scooter to visit Taco Bell stores as of 1999. (Muegge Dep. at 52.)

5 Muegge’s first visit to store #4211, which is located in Santa Rosa, California, was in 1999. (Muegge

6 Dep. at 65.) Muegge states that he first visited #4558 probably in 1999 and perhaps in the year 2000.

7 (Muegge Dep. at 81-82, 92.) Muegge has visited Taco Bell stores 2-3 per month since he began to use a

8 scooter for mobility. (Muegge Dep. at 73.) Muegge has “frequented Taco Bell quite a bit.” (Muegge

9 Dep. at 73.)

10

4. Craig Yates

11

Named plaintiff Craig Yates has been a Taco Bell patron since 1972. (Yates Dep. of 6/12/03 at

12 22; Hikida decl. ¶ 16 Ex. 15.) Yates has visited Taco Bell stores for once a month, at minimum, for 31

13 years. (Yates Dep. at 22.) Yates claims to have become disabled on or about May 21, 1995. (Yates

14 Dep. at 6.) As of Yates’ June 2003 deposition, Yates had visited store #4951, which is located in

15 Novato, California, for at least 6 years. (Yates Dep. at 23.) Although Yates complains about the

16 accessibility of the queue line at store #4951, he acknowledged at the time of his June 2003 deposition

17 that he was not able to make it through the queue line at that store “a couple of years ago.” (Yates Dep.

18 at 27, 29.) Yates has admitted that he goes to the exit of the queue line to place his order once a month

19 for six years. (Yates Dep. at 34.)

20

Yates became a plaintiff because he heard about the opportunity to sue Taco Bell via a

21 newsletter about a year before his June 2003 deposition (i.e., approximately June 2002). (Yates Dep. at

22 13.)

23

At the time of his 2003 deposition, Yates had been a licensed contractor for over 25 years.

24 (Yates Dep. at 9.) As a contractor, Yates has worked on light industrial/commercial office complexes.

25 (Yates Dep. at 21.)

26

27

28

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1 F. 2

Plaintiffs Can Easily Find Out the Identity of the Owner and Operator of a Particular Store By Contacting the County Assessor’s Office.

3

An ADA litigant can easily learn the identity of an owner or operator of a particular store by

4 contacting the County Assessor’s Office. (Hikida decl. ¶ 17 Ex. 16.) Indeed, that is precisely how ADA

5 litigants learn which proper defendants including the owner or landlord of the premises to sue at the

6 outset of a Title III ADA action. Id. Indeed, plaintiffs in the instant action appear to have obtained

7 literally thousands of pages of building permit and related documents pertaining to the California

8 company-owned Taco Bell stores maintained by local municipalities without the issuance of a subpoena,

9 thereby demonstrating the ease in which such information is publicly available. (Hikida decl. ¶ 18 Exs.

10 17-21.)

11 G. 12

Taco Bell’s Employees or Witnesses Such as Ed Medina Have Passed Away or Are No Longer Available to Testify.

13

Taco Bell’s Facility Manager throughout the 1990s, Ed Medina, has passed away and is

14 unavailable to testify at trial on Taco Bell’s behalf. (Elmer decl. ¶ 7.) Similarly, additional Taco Bell

15 employees who are potential witnesses because they participated in Taco Bell’s accessibility

16 modifications are no longer employed by Taco Bell and so Taco Bell can no longer compel them to

17 testify on its behalf (albeit the subpoena process remains available to the extent that Taco Bell can

18 determine their current address). Id.

19

IV

20 21 A.

Legal Standard

ARGUMENT

22

1. The Policies Underlying the Statute of Limitations Promote Justice By Encouraging

23

Litigants to Promptly File Suit to Prevent Unfair Litigation on Stale and Forgotten

24

Matters.

25

The Supreme Court of the United States has addressed the policies underlying the statute of

26 limitations as follows:

27

“Statute of limitations, which ‘are found and approved in all systems of

28

enlightened jurisprudence, represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the

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right to be free of stale claims in time comes to prevail over the right to prosecute them.’

1

These enactments are statutes of repose; and although affording plaintiffs what the

legislature deems a reasonable time to present their claims, they protect defendants and

2

the courts from having to deal with cases in which the search for truth may be seriously

impaired by the loss of evidence, whether by death or disappearance of witnesses, fading

3

memories, disappearance of documents, or otherwise.”

4 United States v. Kubrick, 444 U.S. 111, 117 (1979) (internal citations omitted and emphasis added),

5 quoted in United States v. Marolf, 173 F.3d 1213, 1217-18 (9th Cir. 1999), Bagley v. CMC Real Estate

6 Corp., 923 F.2d 758, 762 (9th Cir. 1991), and Landreth v. United States, 850 F.2d 532, 535 (9th Cir.

7 1988). The U.S. Supreme Court similarly explained:

8

“Statutory limitation periods are: ‘designed to promote justice by preventing surprises

through the revival of claims that have been allowed to slumber until evidence has been

9

lost, memories have faded, and witnesses have disappeared. The theory is that even if

one has a just claim it is unjust not to put the adversary on notice to defend within the

10

period of limitation and that the right to be free of stale claims in time comes to prevail

over the right to prosecute them.’” 11

American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974) (quoting Order of Railroad

12

Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944)), quoted in United States v.

13

Northrop Corp., 91 F.3d 1211, 1217 (9th Cir. 1996); see also Marolf, 173 F.3d at 1218; Jordache,

14

supra, 18 Cal. 4th, at 756 (same).

15

“The rationale for limitations periods is to encourage persons promptly to file legal claims in

16

order to prevent unfair litigation on stale and forgotten matters.” N.L.R.B. v. Cal. Sch. of Prof. Psych.,

17

583 F.2d 1099, 1101 (9th Cir. 1978) (citing American Pipe and Order of Railroad Telegraphers).

18

California law is consistent with federal law in interpreting the purposes underlying a statute of

19

limitations. Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192, 197 (Cal. 1910) (“[I]mportant public policy

20

lies at their foundation; they stimulate to activity and punish negligence. While time is constantly

21

destroying the evidence of rights, [statutes of limitation] supply its place by a presumption which

22

renders proof unnecessary.”) (quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)). The California

23

Supreme Court has emphasized that “the fundamental purpose of [the statutes of limitations] is to give

24

defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy

25

underlying the statute is to require plaintiffs to diligently pursue their claims.” Jolly v. Eli Lilly & Co.,

26

44 Cal. 3d 1103, 1112 (Cal. 1988). Although a statute of limitations might work a seemingly harsh

27

result, the California Supreme Court has justified it in three ways. “First, the rule encourages people to

28

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1 bring suit to change a rule of law with which they disagree, fostering growth and preventing legal

2 stagnation. Second, the statute of limitations is not solely a punishment for slow plaintiffs. It serves the

3 important function of repose by allowing defendants to be free from stale litigation, especially in cases

4 where evidence might be hard to gather due to the passage of time. Third, to hold otherwise would

5 allow virtually unlimited litigation every time precedent changed.” Jolly, 44 Cal. 3d at 1117.

6 “Limitations statutes are intended to enable defendants to marshal evidence while memories and facts

7 are fresh and to provide defendants with repose for past acts.” Jordache Enter., Inc. v. Brobeck, Phleger

8 & Harrison, 18 Cal. 4th 739, 755 (Cal. 1998). “[T]he legislative goal” “is to require diligent

9 prosecution of known claims so that legal affairs can have their necessary finality and predictability and

10 so that claims can be resolved while evidence remains reasonably available and fresh.” Id. at 756. “[A]

11 plaintiff’s unilateral control of the statute’s commencement can undermine these legislative goals.” Id.

12

2. The Applicable Statute of Limitations at Issue in the Instant Action Is One Year.

13

Although the ADA statute does not expressly specify a statute of limitations, federal courts have

14 applied the most appropriate state law limitations period. Maldonado v. Harris, 370 F.3d 945, 954 (9th

15 Cir. 2004) (42 U.S.C. § 1983 claim); Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622, 634 (D. Md.

16 2002) (Garbis, J.) (“The statute at issue, the ADA, does not specify a limitations period. In the absence

17 of a statutory limitations provision, the Court should apply the most appropriate state law limitations

18 period.”).

19

In California, the current two-year personal injury statute, Cal. Civ. Proc. Code § 335.1, became

20 effective on January 1, 2003. Before then, the statute of limitations was a mere one year period. See

21 former Cal. Civ. Proc. Code § 340.3. The Ninth Circuit has held that the current two-year personal

22 injury statute is not retroactive. Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004). Thus, for

23 purposes of this action, California’s one year statute of limitations is applicable. “The statute of

24 limitations for bringing a claim under the ADA . . . is one year.” Pickern v. Best Western Timber Cove

25 Lodge Marina Resort, No. CIV. S-00-1637 WBS/DA, 2002 WL 202442, at *5 (E.D. Cal. Jan. 18, 2002)

26 (Shubb, J.).

27

28

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1 B. 2

The ADA Claim Against “New Construction” Stores that Were Constructed After January 26, 1993 and Before December 17, 2001 Is Time-Barred.

3

1. Garcia v. Brockway

4

The instant motion is premised upon a recent Ninth Circuit en banc decision, Garcia v.

5 Brockway, 526 F.3d 456 (9th Cir. 2008) (Kozinski, C.J.) (en banc), petition for cert. filed, 77 U.S.L.W.

6 3075 (U.S. July 31, 2008) (No. 08-140). In Garcia, the Ninth Circuit recently decided consolidated

7 appeals involving Fair Housing Act claims relating to the existence of alleged architectural barriers 8 within multifamily housing units.4

9

The facts at issue in the first appeal (No. 05-35647) involving plaintiff Garcia are as follows. In

10 1993, defendant Brockway, the original builder of the South Pond apartment complex, constructed the

11 complex and sold the last unit in 1994. Id. at 459. In 2001, plaintiff Garcia, who uses a wheelchair for

12 mobility, rented a unit there and resided there until 2003. Id. Garcia’s apartment did not comply with

13 the design-and-construction requirements of the Fair Housing Act. Id. Garcia’s requests to the

14 management that accessibility improvements be made were ignored. Id. Within two years of leasing

15 the apartment, Garcia sued two groups of defendants: (1) the original builder, defendant Brockway, and

16 architect; and (2) the current owners and management of the apartment complex. Id. The district court

17 granted summary judgment in favor of defendant Brockway and the architect because Garcia’s design18 and-construction claim was not filed within the limitations period. Id. at 459-60. Garcia appealed.5 Id.

19 at 460.

20

The facts at issue in the second appeal (No. 06-15042) involving plaintiff Thompson are as

21 follows. In 1997, Gohres Construction built condominium or apartment units in North Las Vegas at the

22 Villas at Rancho del Norte (the “Villas”). Id. at 460. Shortly thereafter, the Villas were issued a final

23 certificate of occupancy. Id. at 460. In 2004, plaintiff Thompson, a member of the Disabled Rights

24 Action Committee (“DRAC”), “tested” the Villas and found discriminatory conditions. Id. Within a

25 year of Thompson’s inspection, Thompson and the DRAC sued Gohres Construction, Marc Gohres, and

26

27

4

“The FHA prohibits the design and construction of multifamily dwellings that do not have

certain listed accessibility features.” 526 F.3d at 460 (citing 42 U.S.C. § 3604(f)(3)(C)).

5
28

The current owners and management settled their portion of the case. 526 F.3d at 460. Thus, no

appeal was taken.

9

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1 Michael Turk, an officer of both Gohres Construction Rancho del Norte Villas, Inc., asserting an FHA

2 design-and-construction claim. Id. The district court granted the defendants’ motion to dismiss because

3 of the statute of limitations. Id. The plaintiffs appealed, but only with respect to defendant Turk

4 (plaintiffs voluntarily dismissed their appeal as to Gohres Construction and Gohres). The Ninth Circuit

5 consolidated the appeals of Garcia, Thompson, and DRAC.

6

On appeal, the Ninth Circuit, in an en banc published decision, affirmed the district court orders.

7 The Ninth Circuit noted that the FHA enforcement mechanism to commence a private civil action

8 provides that “[a]n aggrieved person may commence a civil action in an appropriate United States

9 district court or State court not later than 2 years after the occurrence or the termination of an alleged

10 discriminatory housing practice.” 526 F.3d at 460-61 (quoting 42 U.S.C. § 3613(a)(1)(A)). The Ninth

11 Circuit noted that the alleged discriminatory housing practice at issue was the “failure to design and

12 construct” a multifamily dwelling according to FHA standards. 526 F.3d at 461 (citing 42 U.S.C. § 13 3604(f)(3)(C)).6 The Ninth Circuit held that the statute of limitations “is thus triggered at the conclusion

14 of the design-and-construction phase, which occurs on the date the last certificate of occupancy is

15 issued.” Id. at 461. “[A]n aggrieved person must bring a private civil action under the FHA for a failure

16 to properly design and construct within two years of the completion of the construction phase, which

17 concludes on the date that the last certificate of occupancy is issued.” Id. at 466. In both cases on

18 appeal, the Ninth Circuit held that the triggering event occurred “long before plaintiffs brought suit.” Id.

19 at 461.

20

The en banc court addressed three theories advanced by the plaintiffs as to why the limitations

21 period should be extended to cover their lawsuits. First, the en banc court rejected the plaintiffs’

22 continuing violation theory because the plaintiffs confused “a continuing violation with the continuing

23 effects of a past violation.” Id. at 462. In support, the en banc court repeatedly cited the recent U.S.

24 6

Section 3604(f)(3)(C) of Title 42 provides, in relevant part, that “discrimination includes-- . . . in

25 connection with the design and construction of covered multifamily dwellings for first occupancy after

the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings in 26 such a manner that--(i) the public use and common use portions of such dwellings are readily accessible

27

to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in

28 wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design . . . .” 42 U.S.C. § 3604(f)(3)(C) (emphasis added).

10

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1 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 167 L. Ed. 2d 982

2 (2007). For example, the en banc court noted that the Ledbetter decision “’stressed the need to identify

3 with care the specific [discriminatory] practice that is at issue.’” Id. at 462 (quoting Ledbetter, 127 S.

4 Ct. at 2167). The en banc court also distinguished between the “’discrete act of alleged . . .

5 discrimination’” with the “’date when the effects of this practice were felt.’” Id. at 462 n.4 (quoting

6 Ledbetter, 127 S. Ct. at 2168). The en banc court also noted that the Supreme Court “reiterated the

7 distinction between a continuing violation and continual effects when it held that ‘current effects alone

8 cannot breathe life into prior, unchanged discrimination; as we held in Evans, such effects in themselves

9 have ‘no present legal consequences.’” 526 F.3d at 463 (quoting Ledbetter, 127 S. Ct. at 2169 (quoting

10 United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977))). “’A

11 discriminatory act which is not made the basis for a timely charge . . . is merely an unfortunate event in

12 history which has no present legal consequences.’” 526 F.3d at 464 (quoting Ledbetter, 127 S. Ct. at

13 2168 (quoting Evans, 431 U.S. at 558)); see also 526 F.3d at 463-64 (“’The limitations periods, while

14 guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect

15 [defendants] from the burden of defending claims arising from . . . decisions that are long past.’”)

16 (quoting Del. State College v. Ricks, 449 U.S. 250, 256-57, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980)).

17

The en banc court then noted that the practice at issue in the consolidated appeals was “a failure

18 to design and construct,” “which is not an indefinitely continuing practice, but a discrete instance of

19 discrimination that terminates at the conclusion of the design-and-construction phase.” Id. at 462.

20 “The failure to design and construct the unit according to FHA standards is the ‘underlying’ discrete act

21 of discrimination.” Id. at 462 n.4 (citation omitted). “And the date of this underlying act ‘governs the

22 limitations period.’” Id. (citation omitted). The en banc court held:

23

“Although the ill effects of a failure to properly design and construct may continue to be

felt decades after construction is complete, failing to design and construct is a single

24

instance of unlawful conduct. Here, this occurred long before plaintiffs brought suit.

Were we to now hold the contrary, the FHA’s statute of limitations would provide little

25

finality for developers, who would be required to repurchase and modify (or destroy)

buildings containing inaccessible features in order to avoid design-and-construction

26

liability for every aggrieved person who solicits tenancy from subsequent owners and

managers.”

27

28

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1 Id. at 463. The en banc court noted that it could not “ignore the statute of limitations to help an

2 aggrieved person who suffers from the effects of such violation decades after construction.” Id. at 463.

3

Second, the en banc court rejected the plaintiffs’ “encounter” theory, which was premised upon

4 the argument that the statute of limitations did not begin to run until plaintiff Thompson tested the

5 Villas, which occurred within two years of filing suit. Id. at 464. In essence, the en banc court held that

6 the plaintiffs were conflating the Article III standing to sue requirement with the accrual of the claim for

7 relief:

8

“The FHA’s limitations period does not start when a particular disabled person is injured

by a housing practice, but by ‘the occurrence or the termination of an alleged

9

discriminatory housing practice.’ 42 U.S.C. § 3613(a)(1)(A). Under the FHA, the ability

to privately enforce the ‘new legal duty’ thus only lasts for two years from the time of the

10

violation, and the violation here is ‘a failure to design and construct.’ Id. § 3604(f)(3)(C).

Plaintiff’s injury only comes into play in determining whether she has standing to bring

11

suit. Id. §§ 3602(i)(1), 3604(f)(2). Some aggrieved persons may not encounter this

violation until decades after the limitations period has run and thus will be unable to file a

12

civil action, even though they have standing to raise the claim. However, ‘[i]t goes

without saying that statute of limitations often make it impossible to enforce what were

13

otherwise perfectly valid claims. But that is their very purpose, and they remain as

ubiquitous as the statutory rights or other rights to which they are attached or are

14

applicable. United States v. Kubrick, 444 U.S. 111, 125, 100 S. Ct. 352, 62 L. Ed. 2d 259

(1979).” 15

Garcia, 526 F.3d at 464.

16

Third, the en banc court rejected both the plaintiffs’ discovery rule and equitable tolling doctrine

17

arguments. The en banc court, noting the similarity between the discovery rule and the plaintiffs’

18

encounter theory, explained, “Holding that each individual plaintiff has a claim until two years after he

19

discovers the failure to design and construct would contradict the text of the FHA, as the statute of

20

limitations for private civil actions begins to run when the discriminatory act occurs-not when it’s

21

encountered or discovered.” 526 F.3d at 465.

22 Addressing the equitable tolling doctrine,7 the en banc court rejected plaintiff Garcia’s

23

contention that it would be inequitable not to allow him to bring a civil lawsuit. 526 F.3d at 465-66.

24

25

7

“’Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital

26 information bearing on the existence of his claim.’” Garcia, 526 F.3d at 465 (citation omitted).

27

“’Equitable tolling is frequently confused . . . with the discovery rule . . . . It differs from the [discovery rule] in that the plaintiff is assumed to know that he has been injured, so that the statute of limitations

28 has begun to run; but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant.’” Id. (citation omitted).

12

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1 “Fairness, without more, is not sufficient justification to invoke equitable tolling.” Id. at 466. The en

2 banc court also noted that “this is not a case where the plaintiff was injured within the limitations period

3 yet unable to determine the source of his injury.” Id. at 465 n.8.

4

Finally, the en banc court addressed the fact that the plaintiffs still had recourse to report the

5 violation to the Attorney General who can seek to enforce the defendants’ legal duty to design and

6 construct if there’s “a pattern or practice of resistance” or if “any group of persons has been denied any

7 [FHA] rights . . . and such denial raises an issue of general public importance.” 526 F.3d at 461

8 (quoting 42 U.S.C. § 3614(a)).

9

2. The FHA and the ADA Use the Same Language to Describe a Discriminatory Act.

10

The discrimination language in the FHA is identical to that contained in the ADA. Both statutes

11 contain the phrase “a failure to design and construct” as a basis for alleging disability discrimination.

12 Compare FHA, 42 U.S.C. § 3604(f)(3)(C) (“a failure to design and construct”) with Title III of the

13 ADA, 42 U.S.C. § 12183(a)(1)(“a failure to design and construct”). Disability discrimination under the

14 ADA includes “a failure to design and construct facilities for first occupancy later than 30 months after

15 July 26, 1990, that are readily accessible to and usable by individuals with disabilities . . . .” 42 U.S.C. §

16 12183(a)(1).

17

3. The Garcia Rule Applies Equally to ADA Actions Including the Instant Action.

18

Based upon the identical statutory language between the FHA and the ADA and the identical

19 policy implications underlying the statute of limitations for both statutes, Taco Bell submits that the

20 recent Garcia rule applies equally to ADA actions. See Frame v. City of Arlington, Texas, No. 4:05-cv-

21 470-Y, slip op. at 7-8 (N.D. Tex. Mar. 31, 2008) (Means, J.) (dismissing an action premised upon Title

22 II of the ADA alleging inaccessible or nonexistent curb ramps and inaccessible public sidewalks

23 because the complaint failed to plead any alleged “alterations” within the limitations period); Speciner v.

24 Nationsbank, N.A., 215 F. Supp. 2d 622, 634 (D. Md. 2002) (Garbis, J.) (holding that the plaintiffs

25 would not be entitled to injunctive relief pursuant to Title III of the ADA because the claim based on

26 1994 renovations was time-barred at the time the suit was filed in 1999).

27

The violation alleged in an ADA action such as the instant action is “a failure to design and

28 construct” a public accommodation in accordance with ADA standards. Therefore, the statute of

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1 limitations in the instant action “is thus triggered at the conclusion of the design-and-construction phase,

2 which occurs on the date the last certificate of occupancy is issued.” 526 F.3d at 461. “[A]n aggrieved

3 person must bring a private civil action under the [ADA] for a failure to properly design and construct

4 within [one] year[] of the completion of the construction phase, which concludes on the date that the last

5 certificate of occupancy is issued.” Id. at 466. Based thereon, the triggering event occurred “long

6 before plaintiffs brought suit.” Id.

7

(a) Plaintiffs Have Alleged That 91 Stores Were Constructed After January 26,

1993 and Before December 17, 2001. 8

9

Plaintiffs have claimed via Meet and Confer Charts that 91 stores were constructed by Taco Bell

10 after January 26, 1993 and before December 17, 2001. (Hikida decl. ¶ 9.) This is supported by

11 certificates of occupancy issued by respective local municipalities. (Elmer decl. ¶ 2.)

12

The foregoing tally does not include the 13 additional stores that plaintiffs have mischaracterized

13 as “new construction” even though they are, in reality, “existing facilities” because they were owned 14 and operated prior to January 26, 1993 by “persons” other than Taco Bell.8 (Elmer decl. ¶ 3.) Nor does

15

16

8

Plaintiffs have cited in their Meet and Confer charts what appear to be numerous accessibility

issues at so-called “new construction” stores, which is intended to give the impression that Taco Bell

17 constructed such elements in a non-compliant manner. The reality, however, is that numerous Taco Bell stores that plaintiffs characterize as “new construction” were previously owned and/or operated by non-

18 Taco Bell owners or operators who presumably constructed the allegedly non-compliant elements.

(Elmer decl. ¶ 3 Exs. 7-18.)

19

“[T]he basic prohibition of the ADA is that an owner, lessee (or lessor), or operator of a place of

20 public accommodation shall not discriminate, on the basis of disability, against any individual ‘in the full and equal enjoyment of the . . . facilities . . . or accommodations of any place of public

21 accommodation.” Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1282 (M.D. Fla. 2004) (quoting 42 U.S.C. § 12182(a)). “As to facilities built for first occupancy after January 26, 1993, the ADA’s
22 plain language, therefore, makes it unlawful for a person to design and construct a place of public

accommodation that fails to meet ADA accessibility guidelines.” Rodriguez, 305 F. Supp. 2d at 1282 23 (citing 42 U.S.C. §§ 12182(a), 12183(a)(1)).

24

For stores that were constructed after January 26, 1993 and previously owned or operated by a

“person” within the meaning of the ADA other than Taco Bell, Taco Bell, as the subsequent “purchaser

25 is not in the position of the person who designed and built the facility and, in doing so, could have

avoided creating barriers to access without much difficulty or expense.” Rodriguez, 305 F. Supp. 2d at 26 1283 n.16. “[T]he ADA’s plain language does not purport to impose potentially astronomical liability

27

or confiscatory burdens on someone who simply purchases an existing non-compliant facility.” Id. Indeed, in Rodriguez, the district court, following a bench trial, refused to apply the “new construction”

28 ADA standards upon a purchaser of a hotel, intended to be converted into a time-share facility, who did not originally design or construct the facility even though such facility was constructed after January 26,

14

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1 this tally include the 14 additional stores that plaintiffs claim to be subject to “new construction”

2 standards even though they are, in reality, subject to “existing facilities” standards because they were

3 previously owned and/or operated by non-Taco Bell owners or operators. (Elmer decl. ¶ 5 Exs. 22-23.)

4 The stores that have been mischaracterized as “new construction” by plaintiffs are subject to the instant

5 Motion to the extent that plaintiffs continue to insist that they are “new construction.”

6

(b) Plaintiffs Have Known About Alleged Architectural Barriers at Taco Bell

Stores Beyond the Applicable One-Year Limitations Period. 7

8

Plaintiffs testified during their depositions that they have visited Taco Bell stores for years prior

9 to the commencement of this action and that they detected what they perceived to be barriers during

10 such store visits. (Hikida decl. ¶¶ 13-16 Exs. 12-15.)

11

(c) Plaintiffs Could Have Obtained Information as to Owner, Operator, Lessor

12

and Lessee Information via Public Records Searches.

13

Plaintiffs could have easily obtained information as to current and previous owner, operator,

14 lessor, and lessee information via public records searches. In particular, plaintiffs could have requested

15 such information via the appropriate County Assessor’s Office, which is what ADA litigants commonly

16 do in order to file suit against the correct parties. (Hikida decl. ¶ 17.) Plaintiffs have offered no

17 explanation as to why they did not pursue timely claims against any of the 60 prior operators of Taco

18 Bell stores, not including the 30 stores mentioned above. (Elmer decl. ¶¶ 3-6 Exs. 7-23.)

19

(d) Given that Article III Standing Exists Based on One Alleged Barrier, There

20

Was Nothing to Preclude the Class Members From Seeking Injunctive Relief

21

as to Any of the Alleged Barriers Prior to the Commencement of This Action.

22

“An ADA plaintiff who has Article III standing as a result of at least one barrier at a place of

23 public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation

24 that are related to his or her specific disability.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir.

25

26 1993. Id. at 1282-83. “In light of the ADA’s plain language, the intentional discrimination evidenced

27

when one fails to abide by ADA accessibility guidelines can only be the intentional discrimination of a person who designs and constructs a place of public accommodation or causes that design or

28 construction to be done.” Rodriguez, 305 F. Supp. 2d at 1283 (citing 42 U.S.C. §§ 12182(a), 12183(a)(1)).

15

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1 2008) (Gould, J.). “[A] disabled person has Article III standing to bring a claim for injunctive relief

2 under the ADA because of at least one alleged statutory violation of which he or she has knowledge and

3 which deters access to, or full use and enjoyment of, a place of public accommodation . . . .” Id. at

4 1043-44. Thus, there was nothing to preclude the class members in the instant action from seeking

5 injunctive relief as to any of the alleged barriers prior to the commencement of this action.

6

(e) The Ninth Circuit Seeks to Avoid Piecemeal Compliance with the ADA by

7

Broadly Construing Article III Standing, Which Means that All Claims

Should Have Been Brought Without Delay. 8

9

The Ninth Circuit has expressed concern as to how limitations on Article III standing might

10 “burden businesses and other places of public accommodation with more ADA litigation, encourage

11 piecemeal compliance with the ADA, and ultimately thwart the ADA’s remedial goals of eliminating

12 widespread discrimination against the disabled and integrating the disabled into the mainstream of

13 American life.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008) (Gould, J.) (2-1 decision).

14 Thus, any and all claims should have been brought without delay to avoid piecemeal compliance with

15 the ADA.

16

(f) Public Policy Counsels Against Stale Claims Being Delayed, Which Results

17

in Stale Evidence.

18

(1) Taco Bell’s Employees or Witnesses Such as Ed Medina Have Passed

19

Away or Are No Longer Available to Testify.

20

The public policy reasons underlying the statute of limitations are directly implicated in the

21 instant action. For example, Taco Bell’s Facility Manager throughout the 1990s, Ed Medina, has passed

22 away and is unavailable to testify at trial on Taco Bell’s behalf. (Elmer decl. ¶ 7.) Similarly, additional

23 Taco Bell employees who are potential witnesses because they participated in Taco Bell’s accessibility

24 modifications are no longer employed by Taco Bell such that they can no longer be compelled to testify

25 (albeit the subpoena process remains available to the extent that Taco Bell can determine their current

26 address). Id.

27

28

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1

(2) Taco Bell Has Been Deprived of the Opportunity to Elicit Testimony

2

from Disabled Individuals Who Otherwise Would Have Been Class

3

Members Had They Not Passed Away During the 1990s and the Early

4

Portion of This Decade.

5

Plaintiffs have also noted recently that certain class members are now deceased. (Joint Case

6 Mngt. Statement of 5/8/08 at 35:2; docket #374) (“Since this case was filed in December 2002, several

7 class members have died.”). This raises an issue as to those who would have qualified as class members

8 had this action been brought sometime between January 26, 1993 and December 16, 2002, who have

9 passed away in the interim. None of those individuals are available to testify as adverse witnesses for

10 Taco Bell especially as to whether the alleged architectural barrier deprived such individuals of effective

11 access.

12 C. Plaintiffs’ “Alteration” Claims Are Time-Barred.

13

1. Speciner v. Nationsbank, N.A.

14

In Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622 (D. Md. 2002) (Garbis, J.), the plaintiffs

15 commenced an action against a Baltimore bank seeking an accessible route for wheelchair users to the

16 Banking Hall area of a building constructed in 1929. In particular, the plaintiffs sought wheelchair

17 access through the Baltimore Street entrance even though there was a 13 inch rise from the public

18 sidewalk to the entrance door. Id. at 632. The plaintiffs requested the construction of a ramp between

19 the sidewalk and the entrance door. Id. The plaintiffs also requested an automatic door. Id. The

20 plaintiffs argued that renovations performed to the Banking Hall area of the building in 1994 constituted

21 “alterations” to an area of the building that contained a “primary function” such that bank was required

22 to make the path of travel to the altered area readily accessible to and usable by individuals with

23 disabilities to the maximum extent feasible. Id. at 633. After conducting a bench trial, id. at 624, the

24 district court held that even if the entirety of the 1994 project constituted “alterations” under the ADA,

25 the plaintiffs would not be entitled to relief because the claim based on alterations is time-barred. Id. at

26 634.

27

While noting that the question of whether an “alterations” claim can be time-barred was one of

28 first impression, the district court noted that the question was not “a difficult one” because the “statute,

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1 the regulations thereunder, and common sense all indicate quite strongly that a three year period of

2 limitations is applicable.” Id. at 634.

3

The district court began its analysis by noting that it should apply the most appropriate state law

4 limitations period given that the ADA statute itself does not specify a limitations period. Id. The

5 district court held that the three year limitation period provided by the Maryland statute applicable to

6 general civil actions is the most appropriate in the context of an ADA claim. Id. The district court then

7 drew a sharp distinction between claims premised upon alleged continuing violations premised upon

8 existing facilities standards and the “alterations” claim, the latter of which was based upon action taken

9 in 1994, which allegedly established a path of travel obligation in connection with the purported

10 “alterations”. The court held, “The three year limitations period for a claim based on the 1994

11 renovations expired well before the 1999 filing of the instant lawsuit. Accordingly, Plaintiffs’

12 ‘alterations’ based claim is time barred.” Id.

13

2. Frame v. City of Arlington, Texas

14

More recently, in Frame v. City of Arlington, Texas, No. 4:05-cv-470-Y, slip op. (N.D. Tex. Mar.

15 31, 2008) (Means, J.),9 which dismissed an action premised upon Title II of the ADA alleging

16 inaccessible or nonexistent curb ramps and inaccessible public sidewalks. The district court held that

17 the complaint failed to plead any alleged “alterations” within the limitations period. Id. at 7-8.

18

3. Alterations Between January 27, 1992 and December 16, 2001 Are Time-Barred.

19

As an initial matter, alleged “alterations” that occurred before January 26, 1992 are not

20 actionable under the ADA. 28 C.F.R. § 36.402(a)(1).

21

Given that the instant action was filed on December 17, 2002, while the former one year

22 limitations period was still in effect in California, only “alterations” within the meaning of the ADA that

23 occurred on or after December 17, 2001 to existing facilities are actionable. In other words, assuming 24 arguendo that Taco Bell made “alterations” to existing facilities between January 27, 1992 and 25 December 16, 2001, those alterations are time-barred. 26

27

9
28

The Frame decision is attached as Exhibit “1” to the concurrently-filed Hikida declaration.

(Hikida decl. ¶ 2 Ex. 1.)

18

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1

Plaintiffs have alleged numerous alleged alterations that occurred between January 27, 1992 and

2 December 16, 2001 in their Meet and Confer charts. In particular, plaintiffs have alleged the existence

3 of “alterations” that occurred during this time period at 85 stores, that is, store numbers 112, 137, 176,

4 283, 526, 567, 829, 863, 955, 991, 1034, 1827, 2241, 2297, 2423, 2700, 2755, 2756, 2778, 2801, 2812,

5 2848, 2861, 2910, 2914, 2915, 2918, 2930, 2933, 2961, 2968, 2971, 2984, 3027, 3046, 3064, 3070,

6 3078, 3089, 3090, 3096, 3119, 3125, 3132, 3184, 3196, 3207, 3208, 3209, 3222, 3390, 3398, 3420,

7 3471, 3498, 3555, 3579, 3904, 3948, 4027, 4034, 4054, 4168, 4192, 4204, 4211, 4284, 4311, 4325,

8 4342, 4343, 4355, 4356, 4466, 4510, 4518, 4558, 4578, 4617, 4704, 4799, 4951, 5019, 5081, 5138.

9 (Hikida decl. ¶ 8.)

10

V

11

CONCLUSION

12

Based upon the foregoing, it is respectfully requested that the motion be granted and that this

13 Court award such other and further relief as it deems appropriate.

14

15 DATED: September 3, 2008

GREENBERG TRAURIG, LLP

16

By /s/

17

Gregory F. Hurley Attorneys for Defendant TACO BELL CORP.

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:02-cv-05849-PJH Document 408 Filed 09/24/2008 Page 1 of 24

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
Fox & Robertson, P.C.
3 3801 East Florida Avenue, Suite 400
Denver, CO 80210
4 Voice: 303.595.9700
TTY: 877.595.9706
5 Fax: 303.595.9705
email: tfox@foxrob.com
6
LAWSON LAW OFFICES
7 Antonio M. Lawson, Cal. Bar No. 140823
835 Mandana Blvd.
8 Oakland, CA 94610
Tel: (510) 419-0940
9 Fax: (501) 419-0948
Email: tony@lawsonlawoffices.com
10

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

11 Attorneys for Plaintiffs

12

13

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16 FRANCIE E. MOELLER et al,

Case No. C 02 5849 PJH JL

17 18 v.

Plaintiffs,

PLAINTIFFS’ BRIEF IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT OF TACO BELL CORP.

19 TACO BELL CORP.,

20

Defendant.

Hearing Date: October 29, 2008 Hearing Time: 9:00 a.m.

21

Honorable Phyllis J. Hamilton

Courtroom 3, 17th Floor

22
Plaintiffs hereby submit their Brief in Opposition to Motion for Partial Summary 23
Judgment of Taco Bell Corp. 24

25

26

27

28

Case 3:02-cv-05849-PJH Document 408 Filed 09/24/2008 Page 2 of 24

1

TABLE OF CONTENTS

2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Issues to Be Decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6 I.
7 II.
8

Incorrect, Misleading or Disputed Factual Assertions Concerning the Construction Dates of Restaurants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Irrelevant, Incorrect and Disputed Factual Assertions Concerning Prior Ownership of the Restaurants at Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 I. Defendant’s Statute of Limitations Argument Should Be Rejected . . . . . . . . . . . . . . . 7

11

A. The Ninth Circuit’s Decision in Pickern Resolves The Issue Before This Court:

The Continuing Violation Doctrine Applies To Claims Under Title III And Thus

12

Plaintiffs’ Claims Are Not Time Barred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

13

B. The Garcia Decision Is Entirely Consistent With Pickern . . . . . . . . . . . . . . . . 8

14

1. The Analysis Of The Statute of Limitations Must Focus on the

Language of the Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

15

2. The Garcia Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

16

3. Pickern and Garcia are in Harmony . . . . . . . . . . . . . . . . . . . . . . . . . . 11

17

4. Defendant Erroneously Focuses On Title III’s “Design and Construct”

18

Language, Ignoring Its Enforcement Provision . . . . . . . . . . . . . . . . . . 12

19

5. The ADA and the Fair Housing Act are Significantly Different in

Several Other Respects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

20

a. Defendant Has Owned and/or Operated All of the

21

Restaurants at Issue within the Limitations Period . . . 13

22

b. The ADA, Unlike the Fair Housing Act, Contains a

Continuing Obligation to Maintain Access . . . . . . . . . 14

23

c. The Requirements of the ADA Result in Trials Long

24

After Restaurants are Constructed . . . . . . . . . . . . . . . . 14

25
26 II.
27

C. Even If Garcia And Pickern Conflict, Pickern is Binding Precedent With Respect to Title III Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Defendant Is Liable For ADA Violations In Restaurants It Operates Regardless Of Whether The Restaurants Were Constructed By Others . . . . . . . . . . . . . . . . . . . . . . . 16

28
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1

A. Many Of The Factual Assertions Relied On By Defendant Are Incorrect . . . 16

2

B. Defendant Is Liable for Violations of the ADA’s New Construction

Requirements in Restaurants That it Has Acquired from Others . . . . . . . . . . . 17

3

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4

5

TABLE OF AUTHORITIES

6

Cases

7

Agostini v. Felton, 521 U.S. 203 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

9

Chung v. Pomona Valley Community Hospital, 667 F.2d 788 (9th Cir. 1982) . . . . . . . . . . . . . 7

10

City of San Francisco v. Grant Co., 227 Cal. Rptr. 154 (Cal. App. 1986) . . . . . . . . . . . . . . . 18

11

Does 1-7 v. Round Rock Independent School District, 540 F. Supp. 2d 735

12

(W.D. Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

13 Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

14 Hodges v. El Torito Restaurants, Inc., No. C-96-2242 VRW, 1998 WL 95398

(N. D. Cal. Feb. 23, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19

15

Kuchmas v. Towson University, 553 F. Supp. 2d 556 (D. Md. 2008) . . . . . . . . . . . . . . . . 13-14

16

Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) . . . . . . . . . . . . . . . . . . 9-12

17

Napoles v. I.N.S., 278 F. Supp. 2d 272 (D. Conn. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

18

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . 9-12

19

Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002) . . . . . . . . . . . . . passim

20

Preston v. Goldman, 227 Cal. Rptr. 817 (Cal. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

21

Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004) . . . . . . . . . . . . . . . . . 17

22

Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622 (D. Md. 2002) . . . . . . . . . . . . . . . . . . . . 14

23

Stoiber v. Honeychuck, 162 Cal. Rptr. 194 (Cal. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 18

24

Stringer v. White, NO. C-07-5516 SI, 2008 WL 344215 (N.D. Cal. Feb. 6, 2008) . . . . . . . . . . 8

25

Sturges v. Charles L. Harney, Inc., 165 Cal. App. 2d 306 (Cal. App. 1959) . . . . . . . . . . . . . 18

26

United States v. Littlesun, 444 F.3d 1196 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

27

United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 16

28

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1 United States v. Pacific Northwest Electric, Inc., No. CV-01-019-S-BLW,

2003 WL 24573548 (D. Idaho Mar. 21, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

2

United States v. Rivera, NO. CIV A 06-3781, CRIM A 83-349-04,

3

2007 WL 954725 (E.D. Pa. Mar. 28, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4 United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5

6

Statutes

7 42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

8 42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

9 42 U.S.C. § 3601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

10 42 U.S.C. § 3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11 42 U.S.C. § 3613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12 42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

13 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

14 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15 42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

16 Cal. Civ. Code § 3483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

17

18

19

Regulations and Other Authorities

20 28 C.F.R. § 36.211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

21 28 C.F.R. § 36.401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

22 “Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” 28 C.F.R. pt. 36, app. B (2005) . . 19
23 Title 24 of the California Code of Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
24 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
25 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 4 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
26 H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in 1990 U.S.C.C.A.N. 445 . . . . . . . . . . . . . . 18
27

28
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1

NOTICE

2

On October 29, 2008, at 9:00 a.m., or as soon thereafter as the Motion for Partial

3 Summary Judgment of Taco Bell Corp. (“Defendant’s Motion”) may be heard, before the

4 Honorable Phyllis J. Hamilton, Plaintiffs will, and hereby do, move for an order denying

5 Defendant’s Motion.

6

ISSUES TO BE DECIDED

7

What impact, if any, the Ninth Circuit’s decision in Garcia v. Brockway, 526 F.3d 456

8 (9th Cir. 2008) -- which addressed the statute of limitations on certain claims brought under the

9 Fair Housing Act, 42 U.S.C. § 3601 et seq. -- has on Plaintiffs’ claims brought under the new

10 construction and alteration provisions of Title III of the Americans with Disabilities Act 11 (“ADA”), 42 U.S.C. § 12181 et seq.1

12

Although the Court limited the scope of Defendant’s Motion to the issue of the statute

13 of limitations,2 Defendant went well beyond this by arguing -- in footnote 8 of its

14 Memorandum of Points and Authorities (“Opening Brief” or “Opening Br.”) -- that it is not

15 responsible for violations of the ADA requirements governing new construction in restaurants

16 built by third parties and subsequently acquired by Defendant. This argument is completely

17 unrelated to the statute of limitations. Although Plaintiffs respond to this argument below, they

18 object to Defendant’s Opening Brief to the extent that it asserts facts or arguments beyond the

19 scope permitted by the Court.

20

SUMMARY OF ARGUMENT

21

The Ninth Circuit in Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136-37

22 (9th Cir. 2002) -- a case not mentioned in Defendant’s Opening Brief -- addressed the precise

23

24

1

Defendant’s argument based on Garcia is relevant only to Plaintiffs’ claims

under the new construction and alteration provisions of the ADA. This argument is irrelevant 25 to Defendant’s obligation to comply with the new construction and alterations provisions of

state law, Cal. Code Regs. tit. 24, or to its obligation under the ADA to make its stores 26 accessible where it is readily achievable to do so. 42 U.S.C. § 12182(b)(2)(A)(iv).

27

2

See Case Management and Scheduling Order at 1 (docket no. 386, June 27,

28 2008).

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1 issue before this Court and requires denial of Defendant’s Motion. Pickern held that the

2 continuing violation doctrine applies to claims brought under Title III of the ADA, and thus

3 “when a plaintiff who is disabled . . . has actual knowledge of illegal barriers at a public

4 accommodation to which he or she desires access [and] seeks injunctive relief against an

5 ongoing violation, he or she is not barred from seeking relief . . . by the statute of

6 limitations . . .” Id. at 1135. The Pickern decision was based on the clear language of the

7 enforcement provision of Title III, providing a cause of action to “any person who is being

8 subjected to discrimination on the basis of disability in violation of this subchapter.” 42 U.S.C.

9 § 12188(a)(1) (emphasis added), cited in Pickern, 293 F.3d at 1136.

10

In Garcia, in contrast, the Ninth Circuit construed the Fair Housing Act, which uses

11 statutory language materially different than the ADA. Based on the language of the Fair

12 Housing Act, the court held that the continuing violation doctrine does not apply to

13 accessibility claims brought under that statute. Garcia, 526 F.3d at 461.

14

Garcia does not purport to limit or modify Pickern -- indeed, the decisions are entirely

15 consistent. In both cases, the Ninth Circuit analyzed the language of the statutes to determine

16 whether the continuing violation doctrine applied. The different results reached in the two

17 cases simply reflect the fact that the two statutes use very different language. Further, even

18 assuming arguendo that Garcia casts doubt on Pickern, a district court is obligated to follow

19 Pickern until it is expressly overruled by the Ninth Circuit.

20

Finally, Defendant argues in footnote 8 that it is not liable for violations of the ADA’s

21 new construction provisions in restaurants constructed by third parties and subsequently

22 acquired by Defendant. This argument should be rejected because: (1) it exceeds the scope of

23 the motion permitted by this Court, which is limited to the impact (if any) of Garcia on

24 Plaintiffs’ ADA claims; (2) it rests on assertions of fact that are demonstrably misleading,

25 incorrect or disputed; and (3) as a matter of law, Defendant is liable for violations of the

26 ADA’s new construction provisions in restaurants it acquires from others.

27

28
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1

FACTS

2

On page three and footnotes two and three of its Opening Brief, Defendant makes a

3 number of misleading, incorrect and/or disputed factual assertions concerning (i) the

4 construction dates of thirteen restaurants, and (ii) whether certain of its restaurants were

5 constructed by third parties. It is not clear why Defendant did this, as these factual assertions

6 are not necessary to decide the purely legal question of whether the analysis of the Fair

7 Housing Act set forth in Garcia applies to Title III of the ADA. Nevertheless, Plaintiffs below

8 and in the Declaration of Timothy P. Fox in Opposition to Motion for Partial Summary

9 Judgment of Taco Bell Corp. (“Fox Declaration” or “Fox Decl.”) respond to these inaccurate

10 factual assertions.

11 I. Incorrect, Misleading or Disputed Factual Assertions Concerning the Construction Dates of Restaurants.
12 On page three of its Opening Brief, Defendant contends that thirteen restaurants that
13 Plaintiffs assert were constructed after January 26, 1993, and thus must comply with the
14 ADA’s new construction provisions, were actually constructed before that date.3 It does not
15 explain the relevance of this contention to the issue of whether the Garcia analysis applies
16 here. In any event, Defendant’s contention that the restaurants were built before January 26,
17 1993 is directly contradicted by its own interrogatory responses, stipulations and documents.
18 Early in the case, Defendant responded to an interrogatory with a list of its California
19 restaurants that provided, for many, the “date of construction for first occupancy” and the “date
20 the restaurant became a Taco Bell operated restaurant.” (See Fox Decl. ¶ 7, Ex. 1 at 4 and
21 Attachment A thereto at 18-25.) Later, the parties entered a series of stipulations as to the
22 construction dates of most of the restaurants at issue. (Fox Decl. ¶ 5 & Exs. 2-5.) For every
23 one of the thirteen restaurants that Defendant now contends was built before January 26, 1993,
24 it earlier stipulated to have been built after that time. (See Fox Decl. at ¶ 12 & Exs. 2-5.)
25

26

27

3

These are restaurants 124, 459, 1934, 3049, 3053, 3079, 3083, 3112, 3117,

28 3136, 3137, 3145 and 3152.

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1

In support of its assertion that these restaurants were built before January 26, 1993,

2 Defendant provides documentation showing that each restaurant was in operation in the 1970s

3 or 1980s. (Decl. of Steve Elmer in Supp. of Taco Bell Corp.’s Motion. for Partial Summ. J.

4 (“Elmer Decl.”) ¶ 3, Exs. 7-18 thereto (dock. no. 404-2 filed Sept. 3, 2008).) However,

5 Defendant’s own documents -- which it did not provide the Court -- demonstrate that after

6 January 26, 1993, it demolished and re-built each of these restaurants. (See Fox Decl. ¶ 12 and

7 Exs. 2-8, 12-14, 20-44.)

8

For example, restaurant 3117 was initially constructed in the early 1970s, and to

9 establish this, Defendant submits a Notice of Sublease of Real Property from 1973 for that

10 restaurant (as well as a subsequent document referencing that Notice of Sublease). (See Elmer

11 Decl. ¶ 3 & Ex. 14 thereto.) On that basis, Defendant contends that restaurant 3117 was

12 constructed before January 26, 1993. (Opening Br. at 3.) Defendant, however, does not inform

13 the Court that in 1998, it tore down that restaurant, and built a new restaurant in its place. This 14 is demonstrated by: (1) Defendant’s stipulation that restaurant 3117 was constructed in 1998;4 15 (2) Defendant’s interrogatory responses, stating that restaurant 3117 first opened in 1998;5

16 (3) an October 1997 contract between Defendant and a contractor for the construction of a Taco 17 Bell restaurant;6 (4) a building permit dated October 1, 1997 for “new restaurant (Taco Bell)”;7 18 (5) a February 1998 certificate of occupancy for this restaurant;8 and (6) a Taco Bell document

19 entitled “New Construction Final Inspection” that states that the “Date Opened” for this 20 restaurant was February 5, 1998.9

21

22

4

See Fox Decl. at ¶ 12(I) & Ex. 3 p. 31.

23

5

Ex. 1 to Fox Decl. at 20.

24

6

Ex. 31 to Fox Decl. at 84 ¶ 1.

25

7

Ex. 32 to Fox Decl. at 88.

26

8

Ex. 33 to Fox Decl.

27

9

Ex. 34 to Fox Decl.

28

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1

As set forth in the Fox Declaration, Defendant’s assertions concerning the construction

2 dates of the remaining twelve restaurants suffer from similar deficiencies. (See Fox Decl. ¶ 12

3 and Exs. 2-8, 12-14, 20-44.)

4 II. Irrelevant, Incorrect and Disputed Factual Assertions Concerning Prior Ownership of the Restaurants at Issue.
5 In footnote 8 of its Opening Brief, based only on a Florida district court decision,
6 Defendant makes an argument completely unrelated to Garcia or to the statute of limitations --
7 Defendant asserts that it is not liable under Title III’s new construction provisions for
8 restaurants that were built by a third party and subsequently acquired by Defendant. (Opening
9 Br. at 14-15 n.8.) To support this argument, Defendant asserts that seventeen restaurants at
10 issue may have been built after January 26, 1993, but were built by third parties, and thus
11 should be considered “existing facilities” subject to the ADA’s readily achievable provisions
12 regardless of when they were actually built.10 Defendant is simply incorrect -- the evidence
13 demonstrates that it did construct many of the restaurants it now claims it did not.
14 First, Defendant’s argument is based on its factual assertion that the first time it had
15 anything to do with these restaurants was when it acquired them from third parties on the dates
16 set forth in the Elmer Declaration and exhibits, and thus these restaurants were “presumably”
17 built by these third parties. (See Opening Br. at 3.) With respect to thirteen of these seventeen
18 restaurants, however, Defendant stated in its interrogatory responses that it operated the
19 restaurants before the date it acquired the restaurants from third parties. (See Fox Decl. at
20 ¶¶ 16(d) - (o), (q) & Ex. 1.) In many cases, the evidence demonstrates that Defendant
21 constructed the restaurants, transferred the restaurants to a third party, then later re-acquired the
22

23

24

10 See Opening Br. at 3 & n. 2. In footnote 3, Defendant identifies 46 additional 25 restaurants that both parties agree were built before January 26, 1993 and thus both parties
agree are “existing facilities” under the ADA. These restaurants are: 158, 176, 567, 1034, 26 1496, 2241, 2297, 2423, 2755, 2756, 2812, 2848, 2861, 2910, 2914, 2915, 2933, 2961, 2971,
3027, 3046, 3064, 3070, 3071, 3077, 3078, 3089, 3090, 3096, 3119, 3125, 3128, 3129, 3130, 27 3132, 3160, 3207, 3208, 3241, 3390, 3398, 3420, 3471, 3473, 4168, and 4204. See Fox Decl. 28 at ¶ 17-18.

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1 restaurant from the third party. In its Opening Brief, it submits evidence of the re-acquisition

2 of the restaurants, but does not inform the Court that it initially constructed the restaurants.

3

For example, Defendant asserts that it acquired thirteen restaurants from Golden West

4 Tacos (“Golden West”) in 2001. (Elmer Decl. ¶ 5, Ex. 22 thereto.) On this basis, Defendant

5 claims that these restaurants were “presumably constructed” by Golden West. (Opening Br. at

6 3.) Defendant’s own documents -- not provided to the Court -- demonstrate that several years

7 before the 2001 transaction, Defendant constructed these restaurants, transferred them to

8 Golden West, and then re-acquired them from Golden West in 2001. (See Fox Decl. at

9 ¶¶ 16(d) - (o), (q) & Exs. 1, 46-53, 56-58.) This, of course, refutes Defendant’s claim that

10 Golden West “presumably” constructed these restaurants.

11

In addition, Defendant’s evidence that an additional three of the seventeen restaurants

12 were operated by third parties pre-dates Defendant’s demolition and re-construction of those

13 restaurants. (See Fox Decl. at ¶¶ 16(a)-(c) & Exs. 2-4, 9-11, 15-19.). For example, based on

14 documents from the 1970s, Defendant claims that restaurant 3007 was constructed and

15 operated by a third party before January 26, 1993. (See Elmer Decl. ¶ 4 & Ex. 21.) While it is

16 true that an old version of this restaurant was operated by a third party in the 1970s, according

17 to documents produced in this litigation but not submitted by Defendant, it demolished and

18 rebuilt this restaurant in or about 2002. (See Fox Decl. at ¶ 16(c) and Exs. 2, 17-19.)

19

ARGUMENT

20

Defendant’s Motion should be denied because: (1) the Ninth Circuit, in Pickern, held

21 that the continuing violation doctrine applies to claims brought under Title III of the ADA, and

22 Garcia does not explicitly or implicitly modify the holding in Pickern; and (2) Defendant’s

23 argument that it is not liable for violations of the ADA’s new construction provisions in

24 restaurants that it has acquired from third parties is beyond the scope of the motion permitted

25 by this Court, is based on inaccurate and disputed facts, and is wrong as a matter of law.

26

27

28
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1 I. Defendant’s Statute of Limitations Argument Should Be Rejected.

2

Defendant’s statute of limitations argument fails because: (1) the Ninth Circuit in

3 Pickern has already held that the continuing violation doctrine applies to claims brought under 4 Title III of the ADA;11 (2) the holdings in Pickern and Garcia are entirely consistent; and

5 (3) under stare decisis, even assuming arguendo that Garcia raises doubts about the holding in

6 Pickern, because Garcia does not expressly overrule Pickern, that decision remains binding on

7 lower courts.

8

A. The Ninth Circuit’s Decision in Pickern Resolves The Issue Before This

Court: The Continuing Violation Doctrine Applies To Claims Under Title

9

III And Thus Plaintiffs’ Claims Are Not Time Barred.

10

In Pickern, an individual who used a wheelchair brought suit under Title III of the ADA

11 against the owner and operator of a chain of supermarkets. 293 F.3d at 1135. The lower court

12 held that the applicable statute of limitations on the plaintiff’s ADA claim was one year, and

13 because he had waited more than a year to file his complaint after he first became aware of

14 barriers in the stores, his claims were barred by the statute of limitations. Id. at 1136.

15

On appeal, the Ninth Circuit reversed. The court based its decision on the language of

16 42 U.S.C. § 12188(a)(1), the enforcement provision of Title III, which provides in relevant part

17 that injunctive relief is available to “any person who is being subjected to discrimination on the

18 basis of disability” or who has “reasonable grounds for believing that such person is about to

19 be subjected to discrimination.” Pickern, 293 F.3d at 1136 (quoting § 12188(a)(1)) (emphasis

20 in original). Based on this statutory language, the court held:

21

By employing the phrases “is being subjected to” and “is about to be subjected to,” the

statute makes clear that either a continuing or a threatened violation of the ADA is an

22

injury within the meaning of the Act. A plaintiff is therefore entitled to injunctive relief

to stop or to prevent such injury.

23

. . .

24

25

11 The parties agree that California’s personal injury statute of limitations applies 26 to Plaintiffs’ ADA claims. However, although California law determines the length of the

limitations period, federal law determines whether the continuing violation doctrine applies to 27 Plaintiffs’ ADA claims. See Chung v. Pomona Valley Cmty. Hosp., 667 F.2d 788, 791 (9th

Cir. 1982). 28

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1

Thus, under the ADA, once a plaintiff has actually become aware of discriminatory

conditions existing at a public accommodation, and is thereby deterred from visiting or

2

patronizing that accommodation, the plaintiff has suffered an injury. So long as the

discriminatory conditions continue, and so long as a plaintiff is aware of them and

3

remains deterred, the injury under the ADA continues.

4

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

limitations period. But he or she has a cause of action, and is entitled to injunctive

5

relief, for an injury that is occurring within the limitations period, as well as for

threatened future injury. [Plaintiff] states that he is currently aware of barriers to access

6

that now exist at the Paradise store, and that these barriers currently deter him. Indeed,

he states that the barriers deterred him from entering the store just before filing suit,

7

when he needed something from the store and was obliged to remain in the parking lot.

[Plaintiff’s] suit for injunctive relief is therefore not time-barred.

8

Id. at 1136-37 (citations omitted). The court broadly held that “that when a plaintiff who is

9

disabled within the meaning of the ADA has actual knowledge of illegal barriers at a public

10

accommodation to which he or she desires access [and] seeks injunctive relief against an

11

ongoing violation, he or she is not barred from seeking relief either by the statute of limitations

12

or by lack of standing.” Id. at 1135; see also Stringer v. White, NO. C-07-5516 SI, 2008 WL

13

344215, at *6 (N.D. Cal. Feb. 6, 2008) (“The phrases ‘is being subjected to’ and ‘is about to be

14

subjected to,’ makes clear that either a continuing or a threatened violation of the ADA is an

15

injury within the meaning of the Act.”).

16

Pickern addressed and rejected the precise argument made by Defendant here. Like the

17

defendant in Pickern, Defendant argues that because the named plaintiffs knew of the

18

accessibility barriers at Taco Bell restaurants outside of the statute of limitations, their claims

19

are barred. (See Opening Br. at 15.) For the reasons set forth in Pickern, this argument fails.

20

B. The Garcia Decision Is Entirely Consistent With Pickern.

21

In Garcia, the Ninth Circuit, based on the statutory language of the Fair Housing Act,

22

held that the continuing violation doctrine does not apply to certain claims brought under that

23

statute. The decisions in Pickern and Garcia are entirely consistent.

24

1. The Analysis Of The Statute of Limitations Must Focus on the

25

Language of the Statute.

26

Before turning to Garcia, it is important to understand how the Supreme Court has

27 instructed courts to analyze statutes of limitation.

28
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1

The Court spoke to this issue in National Railroad Passenger Corp. v. Morgan, 536

2 U.S. 101 (2002) and Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007). Both

3 cases addressed whether the plaintiffs’ employment discrimination claims were barred under

4 the enforcement provision of Title VII, which provides that “[a] charge under this section shall

5 be filed within one hundred and eighty days after the alleged unlawful employment practice

6 occurred.” 42 U.S.C. § 2000e-5(e)(1) (emphasis added).

7

The Court in both cases recognized that the analysis must focus on the language of the

8 enforcement provision. See Morgan, 536 U.S. at 109 (Holding that the “most salient source for

9 guidance is the statutory text.”); Ledbetter, 127 S. Ct. at 2177 (Holding that in addressing the

10 statute of limitations, “[w]e apply the statute as written . . .”). Based on the language found in

11 section 2000e-5(e)(1) emphasized above, the Court held that “[t]he critical questions . . . are:

12 What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?”

13 Morgan, 536 U.S. at 110.

14

To determine what constituted an “unlawful employment practice,” the Court turned to

15 42 U.S.C. § 2000e-2, which specifically identified the “unlawful employment practices”

16 prohibited by Title VII. Morgan, 536 U.S. at 111; Ledbetter, 127 S. Ct. at 2166. The Court

17 found that what constituted an “unlawful employment practice” varied based on the type of

18 discrimination alleged. For example, discrete acts such as termination, failure to promote,

19 refusal to hire, or discriminatory pay decisions each constitute a separate actionable “unlawful

20 employment practice,” and thus a charge must be filed within the specified time period after

21 each such act. See Morgan, 536 U.S. at 114; Ledbetter, 127 S. Ct. at 2171-72. Hostile

22 environment claims, on the other hand, “are different in kind from discrete acts. Their very

23 nature involves repeated conduct.” Morgan, 536 U.S. at 115. As a result, “[p]rovided that an

24 act contributing to the [hostile environment] claim occurs within the filing period, the entire

25 time period of the hostile environment may be considered by a court for the purposes of

26 determining liability.” Id. at 117.

27

28
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1

Of import here is that in both Morgan and Ledbetter, the Court employed a two-step

2 process: First, it analyzed the language of section 2000e-5(e)(1), the enforcement provision of

3 Title VII. Second, because that provision explicitly triggered the statute of limitations on the

4 occurrence of an “unlawful employment practice,” the Court turned to section 2000e-2 to

5 determine what constituted an unlawful employment practice.

6

2. The Garcia Decision.

7

Garcia involved an appeal of two consolidated actions, in which persons with

8 disabilities brought suit based on violations of the provisions of the Fair Housing Act requiring

9 certain multifamily housing to be accessible. 526 F.3d at 459-60. By the time the case reached

10 the Ninth Circuit, the only defendants consisted of the entities that had designed and

11 constructed the apartment buildings, which had been completed well outside of the statute of

12 limitations. Id. The appellees had no on-going role in the buildings. They thus argued that the

13 plaintiffs’ claims were time barred. Id. at 460.

14

As required by Morgan and Ledbetter, the Ninth Circuit first analyzed the language of

15 the enforcement provision of the Fair Housing Act, 42 U.S.C. § 3613(a)(1)(A), which provides

16 that “[a]n aggrieved person may commence a civil action in an appropriate United States

17 district court or State court not later than 2 years after the occurrence or the termination of an

18 alleged discriminatory housing practice.” Garcia, 526 F.3d at 460-61. Thus just as the statute

19 of limitations in Title VII was triggered by the occurrence of an unlawful employment practice,

20 the statute of limitations in the Fair Housing Act was triggered by the occurrence or

21 termination of a discriminatory housing practice.

22

To determine what constitutes a discriminatory housing practice, the Ninth Circuit --

23 consistent with the approach taken in Morgan and Ledbetter -- turned to 42 U.S.C. § 3604,

24 which identified the housing practices prohibited by the Fair Housing Act. Id. at 461. The

25 discriminatory practice at issue in Garcia was a failure to design and construct a multifamily

26 dwelling according to Fair Housing Act standards. Id. The court held that this practice

27 “terminated” -- thus commencing the limitations period set forth in section 3613(a)(1)(A) -- at

28
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1 the conclusion of the design-and-construction phase, which occurs on the date the last

2 certificate of occupancy is issued. Id.

3

3. Pickern and Garcia are in Harmony.

4

Consistent with the Court’s approach in Morgan and Ledbetter, the Ninth Circuit in

5 both Pickern and Garcia based its analysis on the statutory language of the enforcement

6 provisions of Title III and the Fair Housing Act, respectively, which is the “most salient source

7 for guidance.” See Morgan, 536 U.S. at 109. The fact that the Garcia court determined that

8 the continuing violation doctrine did not apply under the Fair Housing Act, while the Pickern

9 court held that the continuing violation doctrine did apply under Title III of the ADA, simply

10 results from the material difference in the language of the enforcement provisions of these two

11 statutes.

12

As set forth above, the Fair Housing Act explicitly provides that an action must be

13 commenced “not later than 2 years after the occurrence or the termination of an alleged

14 discriminatory housing practice,” which the Ninth Circuit concluded meant that a design and

15 construct case must be brought within two years of the date the last certificate of occupancy

16 was issued. Garcia, 526 F.3d at 466.

17

In contrast, the enforcement provision of Title III provides that an action may be

18 commenced by a person with a disability who “is being subjected to discrimination” or who

19 has reasonable grounds for believing that she is “about to be subjected to discrimination.” 42

20 U.S.C. § 12188(a)(1). The Ninth Circuit concluded that this language “makes clear that either

21 a continuing or a threatened violation of the ADA is an injury within the meaning of the Act.”

22 Pickern, 293 F.3d at 1136.

23

Thus the Ninth Circuit in both Pickern and Garcia used the analysis required by the

24 Supreme Court. The difference in the results of the two cases simply stems from the

25 differences in the statutory language at issue in the cases.

26

This was the conclusion reached in United States v. Pacific Northwest Electric, Inc.,

27 No. CV-01-019-S-BLW, 2003 WL 24573548, *1 (D. Idaho Mar. 21, 2003), in which persons

28
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1 with disabilities brought suit for violations of the design and construct provisions of the Fair

2 Housing Act. Citing Pickern, the plaintiffs argued that the continuing violation doctrine

3 applied, and thus their claims were not barred by the statute of limitations. The court found

4 that the Pickern decision turned on the fact that the ADA provides injunctive relief to any

5 person who “is being subjected to,” or who “is about to be subjected to,” discrimination. Id. at

6 *4. The court held that because the Fair Housing Act provision at issue did not use this

7 language, the continuing violation doctrine did not apply. Id. This decision further

8 demonstrates that the difference in statutory language between the ADA and Fair Housing Act

9 harmonizes the different results reached in Pickern and Garcia.

10

4. Defendant Erroneously Focuses On Title III’s “Design and

Construct” Language, Ignoring Its Enforcement Provision.

11

In its Opening Brief, Defendant argues that the Garcia interpretation of the Fair

12

Housing Act should be applied to Title III of the ADA because both statutes “use the same

13 language to describe a discriminatory act”12 -- that is, a failure to design and construct in

14

compliance with accessibility standards. Defendant, however, ignores the very different

15

enforcement provisions of the two statutes. This is contrary to the analysis conducted in

16

Morgan, Ledbetter, Garcia and Pickern. In every one of those cases, the courts began their

17

analysis with the text of the enforcement provisions of the statutes at issue. In Morgan,

18

Ledbetter and Garcia, the enforcement provisions had limitations periods triggered by a

19

discriminatory act, and thus the reason these cases discuss other provisions defining

20

discrimination -- such as a failure to design and construct in compliance with accessibility

21

standards -- is to determine what constitutes a discriminatory act triggering the limitations

22

period. The enforcement provision of Title III, however, does not set a limitations period that

23

commences with a discriminatory act. Rather, it allows an action to be brought by anyone who

24

“is” experiencing discrimination. 42 U.S.C. § 12188(a)(1).

25

26

27 12 Opening Br. at 13-14.
28
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1

5. The ADA and the Fair Housing Act are Significantly Different in

Several Other Respects.

2

In addition to the material differences between the enforcement provisions of the Fair

3

Housing Act and ADA, there are several other differences that explain the holdings of Pickern

4

and Garcia.

5

a. Defendant Has Owned and/or Operated All of the

6

Restaurants at Issue within the Limitations Period.

7

By the time Garcia reached the Ninth Circuit, the only remaining defendants consisted

8 of the entities that had designed and constructed the apartment buildings, which had been

9 completed well outside of the statute of limitations. See Garcia, 526 F.3d at 459-60. The

10 defendants were not the current owners or operators of the buildings. The court expressed

11 concern that applying the continuing violation doctrine would leave these and similar

12 defendants “on the hook years after they cease having any association with a building. . .” Id.

13 at 463. Here, Defendant has owned and/or operated every restaurant at issue within the

14 limitations period.

15

A similar issue was considered in Kuchmas v. Towson University, 553 F. Supp. 2d 556

16 (D. Md. 2008), in which persons with disabilities brought suit against the architects and current

17 operators of a residential hall used for student housing. The court had previously dismissed the

18 claims against architects as time barred on the identical basis as Garcia -- that with respect to

19 the architects, the statute of limitations began to run when the building was constructed, and

20 the continuing violation doctrine did not apply to these defendants. See Id. at 562.

21

The current operators then moved for summary judgment on the ground that the

22 plaintiffs’ claims against them were also time barred. The court rejected this argument:

23

Unlike PGAL Architects, which took no action after it designed Millennium Hall

sometime in 1999-2000, the current Defendants . . . continue to be involved in the

24

leasing of noncompliant apartments. Thus, even if the true cause of the noncompliance

was mere neglect or oversight during the design and construction phases, the remaining

25

Defendants continue to benefit from that oversight by renting inaccessible units while

PGAL Architects ceased all involvement with the building in 2000.

26

27

28
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1 Id. at 562-63 (footnote omitted).13

2

b. The ADA, Unlike the Fair Housing Act, Contains a

Continuing Obligation to Maintain Access.

3

The ADA regulations -- in contrast to the Fair Housing Act -- contain a provision

4

requiring the maintenance of accessible features. The standard of accessibility for new

5

construction and alterations is “readily accessible to and usable by” individuals with

6

disabilities. 42 U.S.C. § 12183(a)(1) - (2). The regulations require that “[a] public

7

accommodation shall maintain in operable working condition those features of facilities and

8

equipment that are required to be readily accessible to and usable by persons with disabilities

9

by the Act or this part.” 28 C.F.R. § 36.211(a). This continuing obligation further supports

10

application of the continuing violation doctrine to Title III claims.

11

c. The Requirements of the ADA Result in Trials Long After

12

Restaurants are Constructed.

13

Defendant asserts that as a matter of public policy, Plaintiffs’ new construction claims

14 should be time barred because one of its employees has passed away and others are “no longer

15 available to testify” because they no longer work for Defendant. (Opening Br. at 6, 16.) As an

16 initial matter, and as Defendant notes in a parenthetical, former employees can be subpoenaed.

17 (Id.) In addition, Defendant does not explain what evidence relevant to the new construction

18 provision -- consisting of the date of construction, and whether compliance was impossible 19 based on the stringent “structural impossibility” standard14 -- could be obtained uniquely from

20 these witnesses that is not available through other witnesses and/or documents.

21

22

13 For similar reasons, Defendant’s reliance on Speciner v. Nationsbank, N.A., 215

F. Supp. 2d 622 (D. Md. 2002) is misplaced. (Opening Br. at 17-18.) The court in Speciner

23 held that certain claims under the alterations standard of the ADA were time barred. Id. at 634.

A subsequent decision by the same court, however, found that Speciner did not apply where, as

24 here, ADA violations continued into the limitations period. See Kuchmas v. Towson

University, 553 F. Supp. 2d 556, 564 (D. Md. 2008) (Holding Speciner inapplicable where 25 ADA claims are based on “the continued inaccessibility”of an element.).

26

14 42 U.S.C. § 12183(a)(1). The structural impracticability defense is unlikely to

apply to a Taco Bell restaurant; it applies “only in those rare circumstances when the unique 27 characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R.

§ 36.401(c)(1). 28

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1

Further, even assuming arguendo that Plaintiffs’ claims under the ADA’s new

2 construction provisions were time barred, those claims would still go forward under the ADA’s

3 readily achievable provisions, which do not exist under the Fair Housing Act. Thus a finding

4 that Plaintiffs’ new construction claims are time barred would do nothing to alleviate

5 Defendant’s perceived witness problems.

6

C. Even If Garcia And Pickern Conflict, Pickern is Binding Precedent With

Respect to Title III Claims.

7

Assuming arguendo that Pickern conflicts with Garcia, a district court is obligated

8

under the doctrine of stare decisis to follow Pickern unless it is “expressly overruled” by

9

Garcia. See, e.g., United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006) (Holding that

10

a lower court must apply controlling authority until it is “explicitly overruled” by the higher

11

court.); United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005) (same). According

12

to the Supreme Court, “‘[i]f a precedent of this Court has direct application in a case, yet

13

appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should

14

follow the case which directly controls, leaving to this Court the prerogative of overruling its

15

own decisions.’” Agostini v. Felton, 521 U.S. 203, 237 (1997) (citation omitted).

16

This same principle requires a district court to follow on-point precedent of its appellate

17

court, notwithstanding subsequent appellate decisions that may call doubt on the original

18

decision. See, e.g., United States v. Rivera, NO. CIV. A. 06-3781, CRIM. A. 83-349-04, 2007

19

WL 954725, at *3 (E.D. Pa. Mar. 28, 2007) (Holding that a district court is obligated to follow

20

circuit court precedent until that precedent is “expressly overrule[d]” by the circuit court.);

21

Does 1-7 v. Round Rock Indep. Sch. Dist., 540 F. Supp. 2d 735, 749 (W.D. Tex. 2007) (same);

22

Napoles v. I.N.S., 278 F. Supp. 2d 272, 277 (D. Conn. 2003) (same). A district must follow on-

23

point precedent from its appellate court even if a subsequent appellate decision “casts doubt”

24

25

26

27

28
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1 on the original decision, and even if the district court believes that the original decision will 2 eventually be overturned.15

3

Garcia does not expressly overrule Pickern. Indeed, Garcia does not even mention

4 Pickern, and the decisions address two different statutes and (as set forth above) interpret

5 materially dissimilar statutory language. As a result, a district court must follow Pickern even

6 if it believes that the two cases are in conflict.

7 II. Defendant Is Liable For ADA Violations In Restaurants It Operates Regardless Of Whether The Restaurants Were Constructed By Others.
8 In footnote 8, beginning on page 14 of its Opening Brief, Defendant -- based on one
9 Florida district court decision -- argues that it is not liable for violations of the ADA’s new
10 construction provisions in restaurants constructed by third parties and subsequently acquired by
11 Defendant. As an initial matter, this argument should not be considered because it exceeds the
12 scope of the motion permitted by this Court, which was limited to the statute of limitations
13 issue. (See Case Management and Scheduling Order at 1 (docket no. 386, June 27, 2008).)
14 Further, this argument should be rejected because: (1) a number of factual assertions
15 made by Defendant in support of this argument are demonstrably false; and (2) as a matter of
16 law, Defendant is liable for violations of the ADA’s new construction requirements in
17 restaurants that it has acquired from others.
18 A. Many Of The Factual Assertions Relied On By Defendant Are Incorrect.
19 Defendant contends that it is not liable under the ADA’s new construction provisions
20 for restaurants built by third parties and then acquired by Defendant. Pursuant to Rule 56 of
21 the Federal Rules of Civil Procedure, Defendant must identify the undisputed, accurate facts
22 that support this argument. As set forth above, Defendant’s factual assertions on this point are
23 replete with inaccuracies. (See supra pp. 3-6.) For example, it identifies a group of restaurants
24 that it purchased from Golden West in 2001 that it claims were “presumably constructed” by
25 Golden West. (See Opening Br. at 3.) There is substantial evidence that these same
26

27 15 United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).
28
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1 restaurants, however, were originally constructed by Defendant and then sold to Golden West

2 in the 1990's, facts not presented by Defendant to the Court. (See supra pp. 5-6.) For these

3 reasons, Defendant has not met its burden under Rule 56 of showing that its argument is based

4 on undisputed, accurate facts, and on that basis, Defendant’s argument should be rejected.

5

B. Defendant Is Liable for Violations of the ADA’s New Construction

Requirements in Restaurants That it Has Acquired from Others.

6

Based solely on Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004),

7

Defendant argues that it is not liable for violations of the ADA’s new construction provisions

8

in restaurants built after January 26, 1993 by third parties and subsequently acquired by

9

Defendant. (Opening Br. at 14-15 n.8.) Rodriguez is contrary to a decision from this district,

10

Hodges v. El Torito Restaurants, Inc., No. C-96-2242 VRW, 1998 WL 95398 (N. D. Cal. Feb.

11

23, 1998).

12

In Rodriguez, the defendant purchased a hotel -- out of bankruptcy -- that had been built

13

by a third party after January 26, 1993. Although the hotel had several ADA violations, the

14

new owner immediately commenced renovations to remedy these violations. Despite this, the

15

plaintiff sued soon after the renovations started. 350 F. Supp. 2d at 1279-80. The court found

16

that the defendant was not in violation of the ADA’s new construction provisions. Id. at 1282-

17

83.

18

Judge Walker of this District reached the opposite result in Hodges, in which the court

19

considered, under the new construction and alteration provisions of California’s accessibility

20

statutes, whether the current owner of a building can be held liable for the previous owner’s

21

failure to make the building accessible. The court held that the current owner is liable for such

22

violations:

23

If courts were to adopt El Torito’s position, businesses would be able to circumvent

24

California’s accessibility requirements through sham sales and transfers. Furthermore,

businesses that chose not to comply with California’s various accessibility requirement

25

would not lose any resale value in their buildings. Surely, the legislature did not intend

to enact such a self-eviscerating law.

26

Indeed, the case at bar provides a good example of why El Torito’s position must fail.

27

If plaintiffs had to sue the now defunct El Caballo for violations that allegedly first

appeared while El Caballo occupied the building, it is unlikely that plaintiffs could

28

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1

obtain money damages. Furthermore, because El Caballo no longer has control over

the building, plaintiffs could not achieve the ultimate goal of the various state laws at

2

issue - an accessible restaurant. It is therefore clear that the best way to effectuate the

goals of California’s accessibility laws is to hold the current owners of buildings liable

3

for existing violations.

4

El Torito may argue that it is unfair to hold it liable for the wrongs of the previous

owner, but El Torito had the opportunity to address these issues when it purchased the

5

building. Much like the situation with a non-latent defect or a cloud on title, El Torito

had constructive notice of these violations. El Torito could have demanded that El

6

Caballo either bring the building into compliance or reduce the sale price to reflect the

costs of such repairs. Of course, if El Torito did not have constructive notice of the

7

violations, it can seek redress from El Caballo. Such an approach is not uncommon

within the law regarding successors in interest: companies assume the liabilities of

8

other companies they acquire and land buyers assume responsibility for hazards on the

real estate they purchase. In fact, the court imagines that El Torito was aware of the

9

pertinent accessibility issues when it purchased the building, but concluded that it was

not liable under the relevant California laws for reasons discussed below. The court

10

therefore finds that plaintiffs could pursue an action against El Torito even though El

Caballo was initially responsible for the alleged failure to make the restaurant

11

accessible.

12 1998 WL 95398, at *3-4.16

13

The result in Hodges is also supported by the text and legislative history of the ADA.

14 In enacting the ADA, Congress struck a balance between the access required in existing

15 buildings versus newly constructed buildings. “The ADA is geared to the future -- the goal

16 being that, over time, access will be the rule rather than the exception. Thus, the bill only

17 requires modest expenditures to provide access in existing facilities, while requiring all new

18 construction to be accessible.” (H.R. Rep. No. 101-485, pt. 3, at 63 (1990), reprinted in 1990

19 U.S.C.C.A.N. 445, 486.) To ensure that new construction is accessible, the ADA provides that

20 “[i]n the case of violations of [the new construction and other architectural accessibility

21

22

16 California law supports the holding in Hodges. California courts have long held

that a current possessor of property is liable for any defects on the property, and this is true 23 even if the defects were created by a previous owner. See, e.g., Preston v. Goldman, 227 Cal.

Rptr. 817, 820 (Cal. 1986). California has codified this principle in Cal. Civ. Code § 3483, 24 which provides that “[e]very successive owner of property who neglects to abate a continuing

nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in 25 the same manner as the one who first created it.” The statutory definition of nuisance “appears

to be broad enough to encompass almost any conceivable type of interference with the 26 enjoyment or use of land or property.” Stoiber v. Honeychuck, 162 Cal. Rptr. 194, 201 (Cal.

App. 1980). A violation of a building code, for example, constitutes a nuisance. See, e.g., City 27 of San Francisco v. Grant Co., 227 Cal. Rptr. 154, 156 (Cal. App. 1986); Sturges v. Charles L.

Harney, Inc., 165 Cal. App. 2d 306, 324 (Cal. App. 1959). 28

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1 requirements] of this title, injunctive relief shall include an order to alter facilities to make such

2 facilities readily accessible to and usable by individuals with disabilities . . .” 42 U.S.C.

3 § 12188(a)(2) (emphasis added). According to the Department of Justice, whose views on 4 Title III are entitled to deference,17 “‘an order to make a facility readily accessible to and usable

5 by individuals with disabilities is mandatory’ under this standard.” “Preamble to Regulation

6 on Nondiscrimination on the Basis of Disability by Public Accommodations and in

7 Commercial Facilities,” 28 C.F.R. pt. 36, app. B at 732-33 (2005) (citing H.R. Rep. No. 485,

8 pt. 4, at 64 (1990)).

9

Here, as set forth in Hodges, it is appropriate to hold Defendant liable for new

10 construction violations committed by previous possessors. Defendant had the opportunity to

11 address the violations when it first took control of the property -- it could have, for example,

12 required that the violations be fixed before it took possession, or it could have (and perhaps

13 did) pay a lower lease or purchase price because the violations decreased the value of the

14 property. Further, it is benefitting from its current use of the property.

15

Requiring Defendant to remedy new construction violations in restaurants acquired by

16 it from third parties is mandated by 42 U.S.C. § 12188(a)(2), which requires an injunction

17 bringing non-compliant elements into compliance with the ADA. It also serves the intent of

18 the ADA that “over time, access will be the rule rather than the exception.” Finally, as

19 emphasized in Hodges, allowing subsequent purchasers to avoid the ADA’s new construction

20 requirements creates an incentive for “sham sales” whereby the entity that constructed a

21 building immediately sells it to a second entity, which would not be subject to those

22 requirements.

23

CONCLUSION

24

For the reasons set forth above, Plaintiffs respectfully request that Defendant’s Motion

25 be denied.

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27 17 Bragdon v. Abbott, 524 U.S. 624, 646 (1998).
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Respectfully submitted,

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FOX & ROBERTSON, P.C.

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9 September 24, 2008
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By: /s/ Timothy P. Fox Timothy P. Fox, Cal. Bar No. 157750 Amy F. Robertson, pro hac vice 3801 East Florida Ave. Suite 400 Denver, Colorado 80202 Tel: (303) 595-9700 Fax: (303) 595-9705
Attorneys for Plaintiffs

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1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

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UNITED STATES DISTRICT COURT 9

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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13 FRANCIE E. MOELLER, et al.,

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Plaintiffs,

15 vs.

16 TACO BELL CORP.,

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Defendant.

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CASE NO. C 02-5849 PJH JL

REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF TACO BELL CORP.

DATE: TIME: CTRM: JUDGE:

October 29, 2008 9:00 a.m. 3, 17th Floor Hon. Phyllis J. Hamilton

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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION .................................................................................................................................. 1
4

5 II. ARGUMENT ........................................................................................................................................ 1

6

7

A. Plaintiffs Ignore the U.S. Supreme Court’s Guidance in Ledbetter v. Goodyear Tire ............. 1

8

1. “Discrete Acts” Are Different From Adverse Effects ......................................................... 1

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2. Plaintiffs’ Argument Effectively Eliminates the Intent Requirement of the ADA.............. 7

11 3. Federal District Courts Are Bound to Follow U.S. Supreme Court Precedent.................... 8
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B. The Ninth Circuit’s Decision in Pickern v. Holiday Quality Foods Inc. Did Not Have the

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Benefit of the U.S. Supreme Court’s Recent Guidance in Ledbetter and Is Distinguishable... 8

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C. Whether Taco Bell Corp. Has Owned and/or Operated All of the Stores at Issue Within the

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One Year Limitations Period Is Irrelevant to Applying Garcia and Speciner to “New

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Construction” and “Alteration” Claims, Respectively.............................................................. 9

18 D. Plaintiffs’ Opposition Confirms That Additional Stores Are Subject to the Instant Motion.... 9
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1

TABLE OF AUTHORITIES

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3 Federal Cases

Page

4 Abramson v. University of Hawaii, 5 594 F.2d 202 (9th Cir. 1979) .................................................................................................................. 3

6 Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla. 2001) ................................................................................................... 7
7

Blair v. Deboo, No. Civ. A 304CV1357CFD,

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2004 WL 3052022 (D. Conn. Dec. 30, 2004)........................................................................................ 8

9 Delaware State College v. Ricks,
10 449 U.S. 250 (1980)............................................................................................................................ 3, 4

11 Garcia v. Brockway,

12

526 F.3d 458 (9th Cir. 2008) (Kozinski, C.J.) (en banc), petition for cert. filed, 77 U.S.L.W. 3075 (U.S. July 31, 2008) (No. 08-140) .................. 8, 9

13 Gilbert v. National Employee Benefit Cos., Inc.,
14 466 F. Supp. 2d 928 (N.D. Ohio 2006)................................................................................................... 8

15 Hodges v. El Torito Restaurants, Inc., 16 No. C-96-2242 VRW, 1998 WL 95398 (N.D. Cal. Feb. 23, 1998)...................................................... 10
17 Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698 (D. Or. 1997) ........................................................................................................ 9
18 Kuchmas v. Towson Univ.,
19 553 F. Supp. 2d 556 (D. Md. 2008) ........................................................................................................ 9
20 Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
21 127 S. Ct. 2162 (2007)................................................................................................................... passim

22 Lorance v. AT&T Technologies, Inc., 23 490 U.S. 900 (1989)............................................................................................................................ 3, 4
24 Mannick v. Kaiser Foundation Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909 (N.D. Cal. June 9, 2006) ........................................................ 9
25 National R.R. Passenger Corp. v. Morgan,
26 536 U.S. 101 (2002)........................................................................................................................... 4, 5
27 Pickern v. Holiday Quality Foods Inc., 28 293 F.3d 1133 (9th Cir. 2002) ....................................................................................................... 6, 8, 9

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1

Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004).................................................................................................. 7

2 Speciner v. Nationsbank, N.A.,
3 215 F. Supp. 2d 622 (D. Md. 2002) ........................................................................................................ 9

4 Stringer v. White, 5 No. C-07-5516 SI, 2008 WL 344215 (N.D. Cal. Feb. 6, 2008) ............................................................. 9
6 Teamsters v. United States, 431 U.S. 324 (1977)................................................................................................................................ 6
7 United Air Lines, Inc. v. Evans,
8 431 U.S. 553 (1977)............................................................................................................................ 3, 4
9 United States v. Poitra,
10 359 F. Supp. 2d 837 (D.N.D. 2004)........................................................................................................ 8

11 Federal Statutes
12 13 42 U.S.C. § 12182(b)(2)(A)(iv) .................................................................................................................. 1
14 42 U.S.C. § 12183....................................................................................................................................... 7

15 42 U.S.C. § 12183(a)(1).............................................................................................................................. 1

16 42 U.S.C. § 12183(a)(2).............................................................................................................................. 1
17 42 U.S.C. § 12188(a)(1).............................................................................................................................. 6
18 42 U.S.C. § 2000e-2(a)(1)........................................................................................................................... 2
19 42 U.S.C. § 2000e-5(e)(1)........................................................................................................................... 2
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21 42 U.S.C. § 2000e-5(f)(1) ........................................................................................................................... 2

22 Title VII of the Civil Rights Act of 1964............................................................................................ 2, 6, 7

23 Federal Regulations
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25 ADAAG. ................................................................................................................................................... 10

26 ADAAG, 4.1.2. ......................................................................................................................................... 10

27 ADAAG, 4.1.3. ......................................................................................................................................... 10

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1 ADAAG, 4.1.6. ......................................................................................................................................... 10 2 ADAAG, 4.1.6(3)(a)(i). ............................................................................................................................ 10

3 ADAAG, 4.1.6(3)(a)(ii). ........................................................................................................................... 10

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Plaintiffs can’t have it both ways. On one hand, they seek to argue that a continuing ADA

4 violation exists based upon the “readily achievable” barrier removal legal standard, 42 U.S.C. §

5 12182(b)(2)(A)(iv), which is a very low standard that even plaintiffs’ brief admits as only requiring

6 “modest expenditures,” (Opp’n at 18:17). On the other hand, they seek to assert two additional legal

7 theories: (i) “failure to design and construct” claims pursuant to 42 U.S.C. § 12183(a)(1) applicable

8 only to “new construction”; and (ii) “alterations” claims pursuant to 42 U.S.C. § 12183(a)(2), even

9 though both groups of latter claims accrued beyond the one-year limitations period applicable at the

10 commencement of this action. Simply put, plaintiffs seek to impermissibly bootstrap the continuing

11 violation theory as the predicate for asserting “new construction” and “alterations” claims.

12

Given the undisputed fact as to when the instant action was filed, the class representatives’

13 knowledge of purported violations years earlier, and the alleged construction dates of approximately 203

14 California Taco Bell company-owned stores that plaintiffs allege to be subject to either the “new

15 construction” or “alterations” legal standards, this Court can and should rule as a matter of law that the

16 ADA claims premised upon either “new construction” claims beyond the 1-year limitations period (i.e.,

17 after January 26, 1993 and before December 17, 2001) or “alterations” claims (i.e., after January 26,

18 1992 and before December 17, 2001) are time-barred. A contrary ruling would effectively eviscerate

19 the intent requirement of the ADA as to “new construction” and “alterations” claims.

20

II. ARGUMENT

21 A. Plaintiffs Ignore the U.S. Supreme Court’s Guidance in Ledbetter v. Goodyear Tire.

22

Although plaintiffs’ response purports to rely upon and analyze the U.S. Supreme Court’s recent

23 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007), plaintiffs’ response

24 totally ignores the key distinction drawn there between when a discrete act of alleged intentional

25 discrimination occurred versus when the effects of an alleged discriminatory practice were felt. Thus, a

26 comprehensive analysis of Ledbetter is as follows.

27

1. “Discrete Acts” Are Different From Adverse Effects.

28

In Ledbetter, the U.S. Supreme Court faced the question whether it should deviate from

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1 established precedent by permitting the petitioner, Lilly Ledbetter, a Title VII employment 2 discrimination claimant who had alleged sex discrimination in her pay,1 to be subject to a different rule

3 as to the time for filing a charge of discrimination with the Equal Employment Opportunity 4 Commission.2

5

Ledbetter’s Title VII claim was as follows. “Ledbetter introduced evidence that during the

6 course of her employment several supervisors had given her poor evaluations because of her sex, that as

7 a result of these evaluations her pay was not increased as much as it would have been if she had been

8 evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout

9 her employment.” Id. at 2165-66. In other words, “she argues that the paychecks were unlawful

10 because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to

11 the EEOC charging period.” Id. at 2167. “In essence, she suggests that it is sufficient that

12 discriminatory acts that occurred prior to the charging period had continuing effects during that period.”

13 Id. at 2167.

14

The Court disagreed and held that there was no basis to deviate from the rule that the period for

15 filing an EEOC charge begins when the discrete act of discrimination occurs.3 Id. at 2165. The Court

16

1
17

“Title VII of the Civil Rights Act of 1964 makes it an ‘unlawful employment practice’ to

discriminate ‘against any individual with respect to his compensation . . . because of such individual’s . .

18 . sex.’ 42 U.S.C. § 2000e-2(a)(1).” 127 S. Ct. at 2166.

2

“An individual wishing to challenge an employment practice under this provision must first file a

19 charge with the EEOC. § 2000e-5(e)(1).” 127 S. Ct. at 2166. “Such a charge must be filed within a

20 specified period (either 180 or 300 days, depending on the State) ‘after the alleged unlawful employment practice occurred,’ ibid., and if the employee does not submit a timely EEOC charge, the

21 employee may not challenge that practice in court, § 2000e-5(f)(1).” 127 S. Ct. at 2166-67.

It is beyond dispute that the EEOC charging period constitutes a statute of limitations, which

22 explains why the Court addressed the policy rationale underlying a statute of limitations. “Statute of

limitations serve a policy of repose.” Id. at 2170. “They ‘represent a pervasive legislative judgment that 23 it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the

24

right to be free of stale claims in time comes to prevail over the right to prosecute them.’” Id.

3

“Ledbetter’s petition presents a question important to the sound application of Title VII: What

25 activity qualifies as an unlawful employment practice in cases of discrimination with respect to

compensation. One answer identifies the pay-setting decision, and that decision alone, as the unlawful 26 practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent

27

decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under

28 this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not

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1 began its analysis by noting the significance of identifying “with care” the specific employment practice

2 at issue. Id. at 2167 (“In addressing the issue whether an EEOC charge was filed on time, we have

3 stressed the need to identify with care the specific employment practice that is at issue.”).

4

Significantly, the Court then drew a sharp distinction between the alleged discriminatory acts

5 that occurred prior to the EEOC charging period and the continuing effects during such charging period.

6 Id. at 2167 (“In essence, she suggests that it is sufficient that discriminatory acts that occurred prior to

7 the charging period had continuing effects during that period. This argument is squarely foreclosed by

8 our precedents.”). In support, the Court cited its prior decision in United Air Lines, Inc. v. Evans, 431

9 U.S. 553 (1977), for the proposition that “the critical question [was] whether any present violation

10 exist[ed].” 127 S. Ct. at 2167-68 (quoting 431 U.S. at 558). The Court “concluded that the continuing

11 effects of the precharging period discrimination did not make out a present violation.” Id. at 2168.

12 Quoting United, the Court stated: “United was entitled to treat [Evans’ termination] as lawful after

13 respondent failed to file a charge of discrimination within the 90 days then allowed by § 706(d). A

14 discriminatory act which is not made the basis for a timely charge . . . is merely an unfortunate event in

15 history which has no present legal consequences.” Id. at 2168 (quoting 431 U.S. at 558).

16

The Court also cited its prior decision in Delaware State College v. Ricks, 449 U.S. 250 (1980),

17 for the proposition that the EEOC charging period ran from the time that the discriminatory act was

18 made and communicated to the plaintiff, not later when one of the effects of the discriminatory act

19 occurred. Id. at 2168. Significantly, in Ricks, the Court, in turn, cited a Ninth Circuit decision,

20 Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir. 1979), for the proposition that “[t]he proper

21 focus is on the time of the discriminatory acts, not upon the time at which the consequences of the acts

22 became most painful.” 449 U.S. at 258.

23

The Court also cited its prior decision in Lorance v. AT&T Technologies, Inc., 490 U.S. 900

24 (1989), for the proposition that “as in Evans and Ricks, we held that the EEOC charging period ran from

25 the time when the discrete act of alleged intentional discrimination occurred, not from the date when the

26 effects of this practice were felt.” Id. at 2168. Although after Lorance was decided, Congress amended

27

28 themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view . . . .” Id. at 2179 (Ginsburg, J., dissenting).

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1 Title VII to expand its scope to a discriminatory seniority system at the time of its application (not just

2 when it was adopted), the Court noted that the amendment did not affect other types of employment

3 discrimination at issue in Evans and Ricks. Id. at 2169 n.2.

4

The Court also cited its decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101

5 (2002), wherein the Court “explained that the statutory term ‘employment practice’ generally refers to ‘a

6 discrete act or single ‘occurrence’’ that takes place at a particular point in time.” 127 S. Ct. at 2169.

7

Having reviewed its prior precedents, the Court then concluded, “The instruction provided by

8 Evans, Ricks, Lorance, and Morgan is clear. The EEOC charging period is triggered when a discrete

9 unlawful practice takes place. A new violation does not occur, and a new charging period does not

10 commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects

11 resulting from the past discrimination.” Id. at 2169.

12

Although the Court recognized that a fresh violation can take place if an employer engages in a

13 series of intentionally discriminatory acts, id. at 2169 (“But, of course, if an employer engages in a

14 series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each

15 act is committed.”), even if such acts are unrelated to each other, id. at 2174 (“a freestanding violation

16 may always be charged within its own charging period regardless of its connection to other violations”),

17 the Court held that Ledbetter was making what amounted to a bootstrapping argument premised upon

18 related acts that were not independently discriminatory. Id. at 2169 (quoting 431 U.S. at 558) (“Instead,

19 she argues simply that Goodyear’s conduct during the charging period gave present effect to

20 discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior,

21 uncharged discrimination; as we held in Evans, such effects in themselves have ‘no present legal

22 consequences.’”); id. at 2174 (“The existence of past acts and the employee’s prior knowledge of their

23 occurrence, however, does not bar employees from filing charges about related discrete acts so long as

24 the acts are independently discriminatory and charges addressing those acts are themselves timely

25 filed.”) (quoting Morgan, 536 U.S. at 113). Indeed, the Court clarified that the mere fact that an action

26 is “related to” some past act of discrimination does not make it actionable. Id. at 2174.

27

The Court held that “a pay-setting decision is a discrete act that occurs at a particular point in

28 time.” Id. at 2165. “Because a pay-setting decision is a ‘discrete act,’ it follows that the period for

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1 filing an EEOC charge begins when the act occurs.” Id. at 2165. “Ledbetter’s cause of action was fully

2 formed and present at the time that the discriminatory employment actions were taken against her, at

3 which point she could have, and should have, sued. Id. at 2171 n.3. “Ledbetter should have filed an

4 EEOC charge within 180 days after each allegedly discriminatory pay decision was made and

5 communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days

6 prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.” Id. at

7 2169. “A discrete act of discrimination is an act that in itself ‘constitutes a separate actionable ‘unlawful

8 employment practice’’ and that is temporally distinct.” Id. at 2175. “Morgan is perfectly clear that

9 when an employee alleges ‘serial violation,’ i.e., a series of actionable wrongs, a timely EEOC charge 10 must be filed with respect to each discrete alleged violation.”4 Id. at 2175.

11

“[A] new Title VII violation does not occur and a new charging period is not triggered when an

12 employer issues paychecks pursuant to a system that is ‘facially nondiscriminatory and neutrally

13 applied.’” Id. at 2174. “The fact that precharging period discrimination adversely affects the

14 calculation of a neutral factor (like seniority) that is used in determining future pay does not mean that

15 each new paycheck constitutes a new violation and restarts the EEOC charging period.” Id. at 2174.

16 “Because Ledbetter did not file timely EEOC charges relating to her employer’s discriminatory pay

17 decisions in the past, she cannot maintain a suit based on that past discrimination at this time.” Id.

18

Significantly, the Court noted that under Ledbetter’s approach, the discriminatory intent element

19 of Title VII would be eviscerated. “A disparate-treatment claim comprises two elements: an

20 employment practice, and discriminatory intent.” Id. at 2171. “Ledbetter asserted disparate treatment,

21 the central element of which is discriminatory intent.” Id. at 2167. “In an effort to circumvent the need

22 to prove discriminatory intent during the charging period, Ledbetter relies on the intent associated with

23 other decisions made by other persons at other times.” Id. at 2169. “Ledbetter’s attempt to take the

24 intent associated with the prior pay decisions and shift it to the 1998 pay decision is unsound. “It would

25 shift intent from one act (the act that consummates the discriminatory employment practice) to a later

26

27

4

Plaintiffs’ fleeting reference to hostile environment claims, (Opp’n at 9:21-26), is misleading. In

Ledbetter, the Court rejected the proposed hostile salary environment claim because each of the discrete

28 acts were “independently identifiable and actionable”. 127 S. Ct. at 2175 & n.7. Similarly, the “failure to design and construct” and “alterations” claims at issue here were independently actionable.

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1 act that was not performed with bias or discriminatory motive. The effect of this shift would be to

2 impose liability in the absence of the requisite intent.” Id. at 2170. “Ledbetter’s argument [would]

3 effectively eliminate the defining element of her disparate-treatment claim.” Id.

4

“[E]vidence relating to intent may fade quickly with time.” Id. at 2171. “In most disparate-

5 treatment cases, much if not all of the evidence of intent is circumstantial.” Id. In a case involving an

6 old performance evaluation, the issue of whether an inference of discriminatory intent can be drawn

7 “can be a subtle determination, and the passage of time may seriously diminish the ability of the parties

8 and the factfinder to reconstruct what actually happened.” Id. The Court noted that the supervisor

9 whose alleged misconduct was at issue died by the time of trial. Id. at 2171 n.4.

10

The Court held, “We therefore reject the suggestion that an employment practice committed with

11 no improper purpose and no discriminatory intent is rendered unlawful nonetheless because it gives

12 some effect to an intentional discriminatory act that occurred outside the charging period. Ledbetter’s

13 claim is, for this reason, untimely.” Id. at 2172.

14

Finally, the Court rejected the dissenting opinion’s attempt to draw a distinction between pay

15 disparity as “significantly different” from adverse actions that are easy to identify as discriminatory. Id.

16 at 2179.

17

Ledbetter is directly applicable here.5 As in Ledbetter, the focus of the instant Motion is not on a

18 current violation (premised upon a “readily achievable” barrier removal standard), but rather the

19 impropriety of the “carrying forward of a past [alleged] act of discrimination . . . .” Id. at 2173 n.5.

20

Asking the parties to reconstruct the record as to which stores are truly “new construction”

21 versus “alterations” and as to which features were constructed as “alterations” or otherwise and by 22 whom (i.e., either Taco Bell or some prior or subsequent operator6) going back literally decades is

23 5

That Ledbetter is an employment discrimination decision is of no moment. Federal courts

24 including the Ninth Circuit have relied upon employment discrimination cases to interpret Title III of the ADA. See, e.g., Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 2002)

25 (recognizing that the “futile gesture” provision in the ADA, 42 U.S.C. § 12188(a)(1), originated from

the “futile gesture” reasoning of the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324, 26 366 (1977), an employment discrimination case premised upon Title VII of the Civil Rights Act of

27

1964).

6

Plaintiffs freely acknowledge that certain disputed stores were operated by non-Taco Bell

28 entities in the 1990s, (Opp’n at 6:7-8; 17:1-2), but they are silent as to what features were constructed, if any, by such operators.

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1 precisely why the statute of limitations should be given effect in the instant case especially given that

2 Taco Bell’s facilities leader, Ed Medina, has passed away. Id. at 2171 n.4; S. Elmer decl. of 9/3/08 ¶ 7.

3

2. Plaintiffs’ Argument Effectively Eliminates the Intent Requirement of the ADA.

4

In Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004) (Presnell, J.), the

5 Middle District of Florida recognized that Title III of the ADA is intended to target intentional

6 discrimination in violation of 42 U.S.C. § 12183. “In light of the ADA’s plain language, the intentional

7 discrimination evidenced when one fails to abide by ADA accessibility guidelines can only be the

8 intentional discrimination of a person who designs and constructs a place of public accommodation or

9 causes that design or construction to be done.” 305 F. Supp. 2d at 1283 (emphasis added). Similarly, in

10 Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla.

11 2001) (Highsmith, J.), the Southern District of Florida drew a sharp distinction between de facto

12 discrimination, which is subject to the lower “readily achievable” barrier removal standard, id. at 1362,

13 and de jure discrimination, which is subject to strict compliance, id. at 1362 n.5. Significantly, the court

14 held, “Rather, the failure to comply with promulgated regulations, which must go through a

15 considerable vetting process before they take effect, may be viewed as intentional discrimination.” Id.

16 (emphasis added). Thus, like Title VII, the ADA targets intentional discrimination.

17

In Ledbetter, the Court rejected Ledbetter’s statute of limitations argument because it would

18 effectively eliminate the intent requirement of her disparate treatment claim. 127 S. Ct. at 2170

19 (“Ledbetter’s argument effectively [would] eliminate the dining element of her disparate-treatment

20 claim[.]”). Similarly, plaintiffs’ position would eliminate the intent requirement as to “new

21 construction” and “alterations” by imposing liability in the absence of the requisite intent.

22

The distinction drawn in Concorde as to the compromise resulting in the passage of the ADA is

23 strikingly similar to the distinction drawn in Ledbetter as to the passage of Title VII. Compare

24 Concorde, 158 F. Supp. 2d at 1362 (“The compromise that Title III makes is to require only reasonable

25 modifications and readily achievable barrier removals or alternative methods, when the disabled are

26 subjected to de facto discrimination in places of public accommodation.”), with Ledbetter, 127 S. Ct. at

27 2170 (“We have previously noted the legislative compromises that preceded the enactment of Title VII .

28 . . .”). Indeed, in Ledbetter, the Court expressly followed such legislatively prescribed balance. Id.

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1 (“Respectful of the legislative process that crafted this scheme, we must ‘give effect to the statute as

2 enacted,’ and we have repeatedly rejected suggestions that we extend or truncate Congress’ deadlines.”);

3 id. at 2177 (“[I]t is not our prerogative to change the way in which Title VII balances the interests of

4 aggrieved employees against the interest in encouraging the ‘prompt processing of all charges of

5 employment discrimination,’ and the interest in repose.”) (internal citation omitted).

6

3. Federal District Courts Are Bound to Follow U.S. Supreme Court Precedent.

7

This Court is bound by the doctrine of stare decisis to decisions of the United States Supreme

8 Court. See, e.g., Gilbert v. National Employee Benefit Cos., Inc., 466 F. Supp. 2d 928, 933 (N.D. Ohio

9 2006); United States v. Poitra, 359 F. Supp. 2d 837, 841 (D.N.D. 2004); Blair v. Deboo, No. Civ. A

10 304CV1357CFD, 2004 WL 3052022, at *2 (D. Conn. Dec. 30, 2004). Thus, regardless of whether

11 Garcia v. Brockway, 526 F.3d 458 (9th Cir. 2008) (Kozinski, C.J.) (en banc), petition for cert. filed, 77

12 U.S.L.W. 3075 (U.S. July 31, 2008) (No. 08-140), or Pickern v. Holiday Quality Foods Inc., 293 F.3d

13 1133 (9th Cir. 2002), is directly applicable, this Court is bound to apply Ledbetter.

14 B. The Ninth Circuit’s Decision in Pickern v. Holiday Quality Foods Inc. Did Not Have the

15

Benefit of the U.S. Supreme Court’s Recent Guidance in Ledbetter and Is Distinguishable.

16

Plaintiffs’ reliance upon Pickern is misplaced. In Pickern, the district court dismissed an ADA

17 case based upon the applicable one-year statute of limitations because the plaintiff had delayed filing his

18 complaint for more than one year after he first became aware of barriers at a particular store. On appeal,

19 the Ninth Circuit reversed. The Pickern panel held:

20

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

limitations period. But he or she has a cause of action, and is entitled to injunctive relief,

21

for an injury that is occurring within the limitations period, as well as for threatened

future injury. Doran states that he is currently aware of barriers to access that now exist

22

at the Paradise store, and that these barriers currently deter him. Indeed, he states that the

barriers deterred him from entering the store just before filing suit, when he needed

23

something from the store and was obliged to remain in the parking lot. Doran’s suit for

injunctive relief is therefore not time-barred.” 24

Id. at 1137.

25

The Ninth Circuit’s decision in Pickern did not have the benefit of the recent guidance provided

26

by the U.S. Supreme Court in Ledbetter, which was heavily relied upon in Garcia.

27

28

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1

Moreover, in Pickern, the Ninth Circuit addressed the “readily achievable” barrier removal

2 standard only. Id. at 1135 (“Title III defines ‘discrimination’ as, among other things, a failure to remove

3 ‘barriers . . . where such removal is readily achievable.’”). Put differently, the Ninth Circuit failed to

4 address the “new construction” or “alterations” legal standards, which were not at issue in Pickern.

5 Thus, the Ninth Circuit’s statute of limitations analysis in Pickern is limited to the “readily achievable” 6 barrier removal context only, and has no application to the “new construction” or “alterations” contexts.7

7 C. Whether Taco Bell Corp. Has Owned and/or Operated All of the Stores at Issue Within the

8

One Year Limitations Period Is Irrelevant to Applying Garcia and Speciner to “New

9

Construction” and “Alteration” Claims, Respectively.

10

Plaintiffs contend that “Defendant has owned and/or operated every restaurant at issue within the

11 limitations period.” (Opp’n at 13:13-14.) Although that contention might have significance to the

12 extent that plaintiffs seek to argue that all of the so-called “new construction” or “alteration” stores are

13 subject to the far less stringent “readily achievable” barrier removal standard, Mannick v. Kaiser

14 Foundation Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *5 (N.D. Cal. June 9, 2006)

15 (Hamilton, J.) (“The demand upon preexisting facilities that are not deemed altered is much less

16 stringent.”) (emphasis added); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d

17 698, 770 n.98 (D. Or. 1997) (Ashmanskas, Mag. J.) (“There is a vast gulf between the two standards,”

18 i.e., ADAAG and standards for existing facilities.), plaintiffs’ contention ignores the fact that they are

19 time-barred with respect to proceeding via either a “new construction” legal standard or “alteration”

20 legal standard as to the stores at issue in the instant Motion. That is the extent of the guidance provided 21 by Garcia and Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622 (D. Md. 2002).8

22 D. Plaintiffs’ Opposition Confirms That Additional Stores Are Subject to the Instant Motion.

23

Plaintiffs’ apparent attempt to create a genuine issue of material fact as to the construction dates

24 7

Plaintiffs’ reliance upon Stringer v. White, No. C-07-5516 SI, 2008 WL 344215 (N.D. Cal. Feb.

25 6, 2008) (Illston, J.), is also misplaced. Stringer did not address the statute of limitations at all and only

addressed the plaintiff’s “injury” in the context of the plaintiff’s lack of Article III standing. Id. at *7.

26 8

Plaintiffs’ reliance upon Kuchmas v. Towson Univ., 553 F. Supp. 2d 556 (D. Md. 2008), is

27

misplaced. Although the court in Kuchmas did distinguish Speciner, id. at 564, the court analyzed a portion of Speciner that addressed “additional ADA claims” subject to the “existing facilities standards,”

28 i.e., the “readily achievable” barrier removal standard. 215 F. Supp. 2d at 630. In other words, the Kuchmas court made no attempt to distinguish Speciner’s alterations analysis.

9

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1 of certain 27 stores, (Opp’n at 3:11-6:18; TBC’s Mot. at 3:12-24), misses the mark. Taco Bell expressly

2 made reference to such so-called “new construction” stores as “subject to the instant Motion to the

3 extent that plaintiffs continue to insist that they are ‘new construction.’” (TBC’s Mot. Part. Summ. J. of

4 9/3/08 at 15:4-5.) In other words, assuming arguendo that plaintiffs’ characterization of certain stores 5 as “new construction” is correct,9 that means that such additional 27 stores (in addition to the 91 “new

6 construction” stores and the 85 so-called “alteration” stores) are also subject to the instant Motion as

7 well. Thus, the factual dispute does not prevent the Court from deciding the instant Motion in Taco 8 Bell’s favor.10

9 DATED: October 8, 2008

GREENBERG TRAURIG, LLP

10 By /s/

11

Gregory F. Hurley

Attorneys for Defendant TACO BELL CORP.

12

13

14

15

16

9
17

The fundamental flaw in plaintiffs’ analysis is their failure to recognize that the disputed stores

at issue are, at most, subject to either an “alteration” legal standard or an even lower “readily

18 achievable” legal standard versus a much higher “new construction” standard. It is undisputed that the

ADAAG distinguishes between what is “new construction” and what constitutes an “alteration”. 19 (ADAAG, 4.1.2, 4.1.3, 4.1.6.) Plaintiffs’ analysis wrongly assumes that the opening of a Taco Bell

20 restaurant on an existing site that had been operated as another type of business for perhaps decades constitutes “new construction” as to the entirety of the “facility” including both the building and all

21 exterior elements, notwithstanding the fact that the building pad, parking lot, and walkways may have

been designed, graded, and constructed literally decades earlier, thereby imposing significant

22 construction constraints. Not surprisingly, the ADAAG takes into account such site constraints at

“existing” buildings and facilities by setting forth special technical provisions for “alterations”. 23 (ADAAG, 4.1.6(3)(a)(i) & (ii).) Even assuming that a building itself has been modified before it opens

24 for business as a Taco Bell store, that does not necessarily mean that all exterior elements including the parking lot and walkways have been constructed anew.
25 10 Similarly, the parties’ dispute as to the applicable legal standard governing the scenario wherein

a prior operator constructed a facility after January 26, 1993 need not be resolved at this time. Taco 26 Bell notes though that plaintiffs’ reliance upon Hodges v. El Torito Restaurants, Inc., No. C-96-2242

27

VRW, 1998 WL 95398 (N.D. Cal. Feb. 23, 1998) (Walker, J.), is misplaced. In Hodges, the court decided a motion for an award of attorney’s fees by analyzing under California law only whether the

28 plaintiffs would have been the prevailing party had the case gone to trial. That is why the court referred to “California’s accessibility laws”, id. at *4, and made no attempt to address the ADA.

10

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United States District Court For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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9 FRANCIE MOELLER, et al.,
10 Plaintiffs,
11 v.
12 TACO BELL CORPORATION,
13 Defendant.
14 _______________________________/

No. C 02-5849 PJH
ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

15

Defendant’s motion for partial summary judgment came on for hearing before this

16 court on November 5, 2008. Plaintiffs appeared by their counsel Timothy Fox, Amy

17 Robertson, and Mari Mayeda, and defendant appeared by its counsel Gregory Hurley and

18 Richard Hikida. Having read the parties’ papers and carefully considered their arguments

19 and the relevant legal authority, and good cause appearing, the court DENIES the motion.

20

The court finds the motion largely incomprehensible in that it does not clearly identify

21 which of plaintiff’s claims (or perhaps portions of claims) are barred by the statute of

22 limitations, and the factual material regarding the stores to which the argument applies is

23 inconsistent and confusing.

24

Moreover, the court rejects defendant’s interpretation of the applicable standard.

25 When called upon to decide this issue if it is raised again in the dispositive motions phase

26 of this proceeding, the court will follow Pickern v. Holiday Quality Foods, Inc., 293 F.3d

27 1133 (9th Cir. 2002) (an ADA Title III case), not Garcia v. Brockway, 526 F.3d 458 (9th Cir.

28 2008) (a Fair Housing Act case). The court is not persuaded by defendant’s argument that

Case4:02-cv-05849-PJH Document416 Filed11/07/08 Page2 of 2

United States District Court For the Northern District of California

1 Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007) precludes the application

2 of Pickern in this case.

3

4 IT IS SO ORDERED.

5 Dated: November 7, 2008 6 7

______________________________ PHYLLIS J. HAMILTON United States District Judge

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UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 Francie E. Moeller,

No. C 02-5849 PJH (JL)

12

Plaintiff,

13

v.

ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL (Docket # 446)

14 Taco Bell Corporation, et al.,

15

Defendants.

________________________________/

16

17

I. Introduction

18

All discovery in this case has been referred by the district court (Hon. Phyllis J.

19 Hamilton) pursuant to 28 U.S.C. §636(b). The deadline for filing of dispositive motions on

20 ADA liability is October 20, 2009, set for hearing on December 16. Plaintiffs’ motion to

21 compel production of documents (Docket # 446) came on for hearing before this Court.

22 Appearing for Plaintiffs was Timothy P. Fox, pro hac vice, Fox & Robertson, P.C., Denver,

23 Colorado. Appearing for Defendant was Richard H. Hikida, Greenberg Traurig, LLP. The

24 Court carefully considered the moving and opposing papers and the arguments of counsel

25 and concludes that the motion should be granted. By having witnesses testify in their

26 declarations in support of its opposition to Plaintiffs' motion for summary judgment,

27 Defendant has waived attorney-client privilege and the work product doctrine for

28 documents related to the testimony submitted. Defendant shall produce documents

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1 responsive to Plaintiffs' discovery requests which relate to the subject matter of the

2 witnesses' testimony -- door opening force, queue lines, and accessible seating. The

3 parties shall meet and confer to develop a plan for Defendant’s compliance with this order.

4 Within ten days of issuance of this order, the parties shall submit their plan to the Court.

5

II. Background

6

In this case, Plaintiffs allege that Defendant's corporate restaurants in California

7 have various architectural elements that do not comply with Title III of the Americans with

8 Disabilities Act ("ADA"), 42 U.S.C. § 12181-89, and California accessibility regulations. The

9 court appointed a Special Master to survey the approximately 220 restaurants at issue, and

10 the Special Master found thousands of violations. See generally Order Appointing Special

11 Master (Filed October 5, 2004, Docket no. 101); Notice of Plaintiffs' Submission of Special

12 Master Reports (and associated exhibits) (Filed December 14, 2006, Docket nos. 216-240.)

13 Mr. Kane and Ms. Wright worked for Alianza Development International, LLC ("Alianza"),

14 Alianza Development International, LLC ("Alianza"), a construction management firm the

15 Defendant retained to attempt to fix some of the barriers found by the Special Master.

16

In 2007, Plaintiffs moved for partial summary judgment, and in response, Defendant

17 argued that Plaintiffs' motion should be denied as moot because Defendant had allegedly

18 fixed many of the barriers at issue. Defendant based this argument on the declarations of

19 Kane and Wright (Ms. Wright was formerly known as Ford), who stated that these barriers

20 had been fixed in a manner that complied with state and federal law. (Filed March 23, 2007,

21 Docket nos. 264 and 265, respectively – hereinafter "Kane Decl." and "Ford Decl.").

22 Plaintiffs seek an order compelling Defendant to produce documents that it has withheld as

23 privileged that reasonably relate to Mr. Kane's and Ms. Wright's testimony that the barriers

24 are now allegedly remedied and comply with law, including for example communications

25 that specifically address the legality of these barriers.

26

Mr. Kane and Ms. Wright in their declarations specifically addressed three subject

27 areas:

28

1) Door opening force;

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1

2) queue lines; and

2

3) accessible seating.

3

III. Relief Requested

4

Plaintiffs ask this Court to order Defendant to produce documents that it withheld as

5 privileged that reasonably relate to Mr. Kane's and Ms. Wright's testimony that the barriers

6 are now allegedly remedied and comply with law, including for example communications

7 that specifically address the legality of those barriers.

8

Defendant has withheld various emails and other communications between it and

9 Mr. Kane and Ms. Wright that are directly relevant to their testimony that the restaurants

10 are now in compliance, including, for example:

11

•

Defendant's communications with Alianza "that addressed the legal

12

implications of the modification work . . ."; and

13

•

Legal advice from Defendant's in-house counsel and outside counsel to

14

Alianza personnel "in response to Alianza's modification inquiries. . ."

15

IV. Discussion - - Witnesses' testimony waives privilege.

16

The sole legal issue to be decided in this motion is whether Defendant, by relying on

17 Mr. Kane's and Ms. Wright's testimony that certain barriers at issue here have been fixed

18 and are now in compliance with state and federal law, has waived all privileges with respect

19 to documents reasonably related to that testimony. Defendant has waived any applicable

20 privilege with respect to pertinent privileged materials that might refute the declarants’

21 testimony. United States v. Reyes, 239 F.R.D. 591, 604 (N.D. Cal. 2006); see also Home

22 Indemnity Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995)

23 (discussing waiver by implication).

24

A. The Nobles decision is on point.

25

This issue was squarely addressed by the Supreme Court in United States v.

26 Nobles, 422 U.S. 225 (1975). In Nobles, an investigator for the defense interviewed

27 prosecution witnesses and preserved the essence of those conversations in a written

28 report. Id. at 227. The defense lawyer relied on the report in conducting his cross

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1 examination of the prosecution witnesses, Nobles, 422 U.S. at 227, and the Court held that

2 this use ordinarily did not waive the privilege. Id. at 239 n.14. The Court addressed the

3 work-product privilege, but the waiver doctrine also applies to the attorney-client privilege.

4 See United States v. Ortland, 109 F.3d 539, 543 (9th Cir. 1997) ("‘The privilege which

5 protects attorney-client communications may not be used both as a sword and a shield.

6 Where a party raises a claim which in fairness requires disclosure of the protected

7 communication, the privilege may be implicitly waived.'" (Internal citation omitted.)).

8

Defendant in Nobles, however, subsequently sought to have his investigator testify

9 as to the inconsistency between his recollection of the witness interviews and that of the

10 prosecution's witnesses. Id. at 239. The lower court informed defense counsel that the

11 investigator could only testify if relevant portions of his report were produced to the

12 prosecution. Id. at 229.

13

The Supreme Court held that the district court was correct in finding waiver. If the

14 investigator testified, then "the normal rules of evidence come into play with respect to

15 cross-examination and production of documents." Id. at 239 n.14. Thus if the defendant

16 used the investigator's testimony, it waived the privilege with respect to "matters reasonably

17 related to those brought out in direct examination," including relevant portions of his report.

18 Id. at 240.

19

In this case, Defendant used the testimony of Mr. Kane and Ms. Wright that various

20 barriers had been brought into compliance with state and federal law to support its

21 mootness argument in opposition to Plaintiffs' motion for summary judgment. It is not

22 necessary that they will be witnesses at trial for their testimony under oath in their

23 declarations to waive Defendant’s privileges. Pursuant to the Supreme Court’s opinion in

24 Nobles, Defendant in this case has waived privilege with respect to "matters reasonably

25 related" to their declarations’ testimony. As a matter of common sense, communications

26 from Defendant's attorneys to Mr. Kane and Ms. Wright "that addressed the legal

27 implications of the modification work," as well as communications providing "legal advice"

28 to Mr. Kane and Ms. Wright in response to their "modification inquiries," are pertinent to

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1 their subsequent testimony that those modifications complied with state and federal

2 regulations. Defendant may not use the declarations of Kane and Wright as a sword to

3 strike down Plaintiffs' motion while hiding behind the shield of privilege any documents

4 which might undermine or contradict those declarations.

5

At the same time, the waiver of privilege is limited to "matters covered in [their]

6 testimony." Nobles, 422 U.S. at 239. The Court reviewed the Kane and Wright declarations

7 and observes that they deal with door opening (and closing) force, queue lines, and

8 accessible seating. Accordingly, any waiver of privilege is limited to documents and

9 communications on those subjects.

10

B. Defendant's arguments miss the point.

11

Defendant's Memorandum Of Points and Authorities in Support of its Opposition to

12 Plaintiffs' Motion to Compel ("Opposition Brief") consists largely of arguments that are

13 irrelevant to Plaintiffs' Motion to Compel.

14

Most striking, Defendant's Opposition Brief devotes less than one paragraph -- out of

15 24 pages -- to the most significant basis for Plaintiffs' waiver argument: Defendant's

16 submission of the Alianza Declarations in support of its contention that Plaintiffs' claims are

17 moot. Defendant's only response is that Plaintiffs had the opportunity to depose Mr. Kane

18 and Ms. Wright. Opp'n Br. at 18. Significantly, however, at those depositions, Defendant

19 refused to let these deponents answer concerning the topics at issue in Plaintiffs' Motion to

20 Compel.

21

1. Defendant argues non-issues or the reverse of the applicable law.

22

Defendant argues that it has not waived privilege because the withheld documents

23 have not been introduced in evidence. Defendant contends that Plaintiffs seek to blur the

24 distinction between defense counsel's potential reliance upon the work-product materials

25 reflected in Taco Bell's supplemental privilege log at trial and the testimonial use of such

26 materials, the latter of which amounts to pure speculation. Plaintiffs continue to ignore the

27 distinction drawn by the U.S. Supreme Court in Nobles, wherein the Court held:

28

"What constitutes a waiver with respect to work-product materials depends, of

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1

course, upon the circumstances. Counsel necessarily makes use throughout trial of

the notes, documents, and other internal materials prepared to present adequately

2

his client's case, and often relies on them in examining witnesses. When so used,

there normally is no waiver. But where, as here, counsel attempts to make a

3

testimonial use of these materials the normal rules of evidence come into play with

respect to cross-examination and production of documents."

4

5 422 U.S. at 239 n.14 (emphasis added).

6

Defendant argues that the facts in Nobles are dissimilar to this case. In particular,

7 Defendant attempts to distinguish Nobles because the investigator in that case intended to

8 testify as to the eyewitnesses' alleged statements to him, while the declarants int this case

9 will not b testifying at trial. Defendant argues that Plaintiffs in this case do not contend that

10 Alianza or Maintco personnel conducted witness interviews and that the withheld emails at

11 issue contain witness statements that Alianza or Maintco personnel intend to testify about

12 in order to impeach their eyewitness testimony. Similarly, argues Defendant, Plaintiffs'

13 assumption that Taco Bell intends to introduce into evidence at trial all of the emails

14 described in Taco Bell's supplemental privilege log, which constitute confidential

15 communications between defense counsel and Alianza or Maintco, is simply not true.

16

However, as discussed below, whether or not Alianza or Maintco personnel will

17 testify has no relevance to the question whether Defendant waived privilege by submitting

18 the Kane and Wright declarations in support of its opposition to Plaintiff’s summary

19 judgment motion.

20

2. The fact that Defendant does not intend to introduce privileged

materials into evidence is the reason for the waiver doctrine.

21

22

Plaintiffs ask this Court to reject Defendant’s argument that because it does not

23 intend to introduce privileged material at trial -- the very material that it is withholding and

24 that Plaintiffs' are moving to compel -- it has not waived the privilege with respect to that

25 material. See, e.g., Opp'n Br. at 17 (asserting that Defendant does not intend to introduce

26 at trial documents that it has withheld as privileged).

27

28

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1

This argument turns the waiver-by-testimony doctrine on its head. Every case

2 involving this doctrine concerns documents that one party is withholding and thus does not

3 intend to introduce. Waiver is justified precisely because of the unfairness resulting from a

4 party submitting testimony while simultaneously withholding documents that its adversary

5 might need to contest that testimony. See, e.g. John Doe Co. v. United States, 350 F.3d

6 299, 303 (2d Cir. 2003)) ("the unfairness courts have found which justified imposing

7 involuntary forfeiture generally resulted from a party's advancing a claim to a court or jury . .

8 . while relying on its privilege to withhold from a litigation adversary materials that the

9 adversary might need to effectively contest or impeach the claim."). Thus the fact that a

10 defendant does not intend to introduce withheld material does not negate the waiver

11 doctrine -- to the contrary, that fact is the very reason for the doctrine.

12

Once again, Nobles is on point. The privileged document at issue in Nobles was the

13 defendant's investigator's report, which the defendant did not want to produce or use at

14 trial. Under Taco Bell's theory, the fact that the defendant did not intend to introduce the

15 report would mean that there was no waiver. This was not the holding of the Supreme

16 Court. Rather, it held that if defendant had its investigator testify, the defendant would

17 waive privilege as to any documents reasonably related to the testimony, including the

18 investigator's report. 422 U.S. at 240. Mr. Kane and Ms. Wright, like the defendant's

19 investigator in Nobles, have provided testimony on behalf of Defendant, and thus, as in

20 Nobles, Defendant has waived the privilege with respect to documents and information

21 reasonably related to their testimony.

22

3. Defendant waived the privilege, not by arguing mootness, but by

submitting Mr. Kane's and Ms. Wright's testimony.

23

24

Defendant argues that it has not waived the privilege by "the mere fact that Taco

25 Bell intends to invoke the mootness doctrine at trial . . ." Opp'n Br. at 16-17. Plaintiffs

26 agree. The Supreme Court in Nobles clearly delineated the types of acts that do, and do

27 not, result in waiver. For example, referring to notes or other internal materials during trial

28 does not waive the privilege. 422 U.S. at 239 n.14. Here, Plaintiffs do not argue that

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1 Defendant waived the privilege simply by arguing mootness or by preparing notes or other

2 materials based on Mr. Kane's and Ms. Wright's work.

3

The Supreme Court, however, was equally clear that once a party elects to use

4 testimony in support of its position, then that party "waive[s] the privilege with respect to

5 matters covered in [that] testimony" Id. at 239. Here, it is undisputed that Defendant

6 submitted the testimony of Mr. Kane and Ms. Wright in support of its mootness argument,

7 and it has thus waived the privilege with respect to matters covered in that testimony.

8

9

4. Defendant refused to permit Mr. Kane or Ms. Wright to answer

questions at deposition concerning the topics at issue.

10

11

Defendant suggests, without legal support, that the fact that Plaintiffs deposed Mr.

12 Kane and Ms. Wright negates a finding of waiver. Opp'n Br. at 18. Defendant, however,

13 instructed these deponents not to answer questions concerning the topics at issue. See

14 Pls.' Mot. to Compel at 4. Plaintiffs therefore did not have any meaningful opportunity to

15 depose Kane and Wright on the subject matter of their declarations, so Defendant’s waiver

16 is not mitigated.

17

5. Defendant makes a number of irrelevant arguments:

18

a. For purposes of this motion, Plaintiffs do not contest that the

documents and information at issue are privileged.

19

20

For purposes of their Motion, Plaintiffs do not dispute that the documents and

21 information they seek would be privileged if Defendant had not submitted the testimony of

22 Mr. Kane and Ms. Wright. Rather, they argue that by submitting this testimony, Defendant

23 waived the privilege. Again, this is identical to the situation in Nobles, in which there was no

24 dispute that the investigator's report was privileged and the issue turned on whether that

25 privilege was waived when the investigator testified. Thus Defendant's lengthy arguments

26 attempting to establish that the materials at issue are privileged are irrelevant to Plaintiffs'

27 Motion.

28

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United States District Court For the Northern District of California

1

b. A "substantial need" analysis is irrelevant.

2

Under Rule 26(b)(3)(a)(ii) of the Federal Rules of Civil Procedure, some material

3 protected by the work-product privilege must be produced if the adversary demonstrates

4 substantial need for the material. Defendant argues that Plaintiffs have not shown

5 substantial need for the material at issue. This is both correct and irrelevant. Plaintiffs are

6 arguing that Defendant waived the privilege by submitting the testimony of Mr. Kane and

7 Ms. Wright, and the substantial need analysis has nothing to do with whether such waiver

8 occurred.

9

c. Plaintiffs do not contend that Defendant’s waiver resulted from

disclosing privileged material to third parties, so Defendant’s argument

10

on this issue is pointless.

11 Defendant spends several pages arguing that it has not waived the privilege by
12 disclosing privileged materials to Alianza and Maintco because these entities are "part of
13 the privileged circle" and were not a "conduit to Plaintiffs." Opp'n Br. at 14-15, 20-23. This
14 argument is irrelevant because Plaintiffs do not contend that Defendant waived the
15 privilege by disclosing privileged material to third parties. Rather, Plaintiffs contend that
16 Defendant waived the privilege by submitting Mr. Kane's and Ms. Wright's testimony in
17 support of its mootness argument.
18 V. Conclusion
19 For all the above reasons, Plaintiffs' motion to compel is granted. By submitting the
20 testimony of Wright and Kane in favor of its opposition to Plaintiffs' motion for summary
21 judgment and in support of its argument that Plaintiffs' claims are moot because the
22 restaurants have been brought into full compliance with the ADA and state disability law,
23 Defendant has waived privilege with respect to any other documents related to the Wright
24 and Kane declarations. Defendant may not proffer favorable information and conceal
25 potentially unfavorable information on the same subject by hiding behind a claim of
26 privilege. It may not use the Kane and Wright declarations as a sword to strike down
27 Plaintiffs' motion for summary judgment, while concealing potentially contradictory
28 documents behind the shield of privilege. Defendant shall produce documents responsive

C-02-5849 DISCOVERY ORDER

Page 9 of 10

United States District Court For the Northern District of California

Case4:02-cv-05849-PJH Document457 Filed10/06/09 Page10 of 10

1 to Plaintiffs' discovery requests which relate to the subject matter of the witnesses'

2 testimony: door opening force, queue lines, and accessible seating.

3

4

The parties shall meet and confer to develop a plan for Defendant to comply with the

5 Court’s order as expeditiously as possible. The parties shall meet and confer to develop a

6 plan for Defendant’s expeditious production of documents. Within ten days of issuance of

7 this order, the parties shall submit their plan to the Court.

8

IT IS SO ORDERED.

9 DATED: October 6, 2009

10

__________________________________

11

JAMES LARSON

U.S. Magistrate Judge

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16 G:\JLALL\CHAMBERS\CASES\CIV-REF\02-5849\Order Grant 446.wpd

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C-02-5849 DISCOVERY ORDER

Page 10 of 10

 
 Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page1 of 62

1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY(SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

7

8
UNITED STATES DISTRICT COURT 9

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12

13 FRANCIE MOELLER, et al.,

14

Plaintiffs,

15 vs.

16 TACO BELL CORP.

17

Defendant.

18

19

20

21

CASE NO. C 02-5849 PJH JL
DEFENDANT TACO BELL CORP.’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[Declarations of Steve Elmer, Robert G. Reeves, Richard H. Hikida filed concurrently herewith]

DATE: TIME: CTRM: JUDGE:

December 16, 2009 9:00 a.m. 3 Hon. Phyllis J. Hamilton

22

23

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

24

PLEASE TAKE NOTICE that on December 16, 2009, at 9:00 a.m., or as soon thereafter as the

25 motion may be heard before the Honorable Phyllis J. Hamilton in Courtroom 3 of this Court, 1301 Clay

26 Street, Oakland, California, defendant Taco Bell Corp. hereby moves for partial summary judgment.

27

This motion is based upon this Notice of Motion, the Memorandum of Points and Authorities in

28 support thereof, the concurrently-filed Declarations of Steve Elmer, Robert G. Reeves, and Richard H.

Case No. 02-5849 PJH JL
OC 286,421,313v1

TBC’s Mot. Partial Summ. J.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page2 of 62

1 Hikida, all other papers and pleadings on record with this Court, and upon such other arguments and

2 items as may be presented to the Court at the hearing of this matter.

3 DATED: October 20, 2009

GREENBERG TRAURIG, LLP

4

5

By /s/

Gregory F. Hurley

6

Attorneys for Defendant

7

TACO BELL CORP.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page3 of 62

1

TABLE OF CONTENTS

2

3 I. INTRODUCTION ................................................................................ Error! Bookmark not defined.

II. STATEMENT OF THE ISSUES TO BE DECIDED......................... Error! Bookmark not defined. 4
III. STATEMENT OF FACTS ................................................................ Error! Bookmark not defined. 5 IV. ARGUMENT..................................................................................... Error! Bookmark not defined.

6

A. The Mootness Doctrine Applies ............................................. Error! Bookmark not defined.

7

1. Legal Standard for Injunctive Relief............................ Error! Bookmark not defined.

8

2. Mootness Legal Standard............................................. Error! Bookmark not defined.

3. Taco Bell Lacks Any Legal Authority to Modify Any Features at Stores that Have

9

Either Permanently Closed or Were Sold to Franchisees . Error! Bookmark not defined.

10

4. Taco Bell Has Modified the Vast Majority of Features Raised in Plaintiffs’ Expert

Reports of May 1, 2009 .................................................... Error! Bookmark not defined. 11
5. Taco Bell Has Modified the Vast Majority of Features Raised in Plaintiffs’ Meet and

12

Confer Charts of 2006....................................................... Error! Bookmark not defined.

13

6. Taco Bell Has Expended Over $8 Million to Remediate Its California Taco Bell

Company-Owned Stores Since 2006 ................................ Error! Bookmark not defined.

14

7. Taco Bell Has Retained Maintco to Conduct Twice a Year ADA Maintenance

15

Inspections of Its California Taco Bell Stores .................. Error! Bookmark not defined.

B. Taco Bell’s Defenses Other Than the Mootness Doctrine...... Error! Bookmark not defined. 16
1. Even Assuming that Self-Service Dispensers and Other Elements Are Subject to the

17

ADAAG, Taco Bell Provides Equivalent Facilitation in the Form of Customer Assistance

........................................................................................... Error! Bookmark not defined. 18
2. The City of La Mirada Has Refused to Allow Taco Bell to Install an Accessible Path

19

of Travel Connecting the Public Sidewalk to the Store Entrance of Store #5636.....Error!

Bookmark not defined. 20
3. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Ramp at

21

Store #82 ........................................................................... Error! Bookmark not defined.

22

4. The ADAAG Only Obligates a Facility Operator to Ensure an Accessible Route

Within the Boundary of the Site and Not Beyond............. Error! Bookmark not defined.

23

5. The ADAAG Does Not Require that Elements at a Facility Be Accessible If They Are

24

Not on an Accessible Route for Use By Disabled Customers ......... Error! Bookmark not

defined.

25

6. Running Slope of Walkways ....................................... Error! Bookmark not defined.

26

7. Cross-Slope of Walkways............................................ Error! Bookmark not defined.

27

8. The ADAAG Provides a 36” Minimum Width Standard Generally for an Accessible

Rout................................................................................... Error! Bookmark not defined.

28

Case No. 02-5849 PJH JL
OC 286,421,313v1

TBC’s Mot. Partial Summ. J.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page4 of 62

1

9. The ADAAG Only Provides a 36” Minimum Width Standard for a Pedestrian Ramp ........................................................................................... Error! Bookmark not defined.

2

10. The ADAAG Does Not Require that a Landing Length Exceed 60 Inches .......Error!

3

Bookmark not defined.

11. The ADAAG Does Not Require Handrail Extensions on Ramps If the Handrails Are

4

Continuous ........................................................................ Error! Bookmark not defined.

5

12. The ADAAG Does Not Regulate Whether Handrail Extensions May Be Turned 90

Degrees to the Run of the Ramp ....................................... Error! Bookmark not defined.

6

13. McSwain’s Measurement Methodology of Measuring the Length of a Ramp Landing

7

Only to an Expansion Joint Is Flawed .............................. Error! Bookmark not defined.

8

14. The ADAAG Does Not Require a Minimum 72 Inches in Length Ramp at a Change in Direction ....................................................................... Error! Bookmark not defined.

9

15. The ADAAG Provides that Curb Ramps Do Not Need Handrails ..Error! Bookmark

10

not defined.

16. The ADAAG Does Not Require Tow-Away SignageError! Bookmark not defined.

11 17. The ADAAG Does Not Require that Accessible Parking Be Located Immediately

12

Next to an Accessible Entrance ........................................ Error! Bookmark not defined.

13

18. The ADAAG Does Not Preclude Diagonal Parking Spaces or Access Aisles...Error!

Bookmark not defined.

14

19. The ADAAG Does Not Provide a Minimum Length Standard for Either an

15

Accessible Parking Space or Access Aisle ....................... Error! Bookmark not defined.

20. The ADAAG Does Not Require that the Access Aisle Be Located on the Passenger

16

Side ................................................................................... Error! Bookmark not defined.

17

21. The ADAAG Does Not Require Any Pavement Signage In the Van Accessible or

Standard Accessible Parking Space .................................. Error! Bookmark not defined.

18 22. The ADAAG Does Not Require the Words “NO PARKING” Painted in the Access

19

Aisl.................................................................................... Error! Bookmark not defined.

20

23. The ADAAG Does Not Regulate with a Specific Standard the Minimum Height of

Parking Signage ................................................................ Error! Bookmark not defined.

21

24. The ADAAG Does Not Preclude the Accessible Route from an Accessible Parking

22

Space to Travel Behind Another Person’s Parked Vehicle ............. Error! Bookmark not

defined.

23

25. Plaintiffs Contradict Themselves By Seeking to Use Accessible Seating From the

24

Narrow End at Store #137................................................. Error! Bookmark not defined.

26. The ADAAG Does Not Require that an Accessible Route Connect Two Store

25

Entrances........................................................................... Error! Bookmark not defined.

26

27. The ADAAG Does Not Necessarily Require Multiple Accessible Entrances ...Error!

Bookmark not defined. 27

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page5 of 62

1

28. Taco Bell Has Complied with the Special Master’s Recommendation to Install Directional Signage at Certain Stores in Lieu of More Extensive Modifications .....Error!

2

Bookmark not defined.

29. Secondary Entrances .................................................. Error! Bookmark not defined. 3

30. Plaintiffs No Longer Challenge Directional Signage to the Accessible Entrance as a

4

Solution ............................................................................. Error! Bookmark not defined.

5

31. The ADAAG Only Requires One Leaf to Be Accessible at a Double-Leaf Doorway

Intended to Be Accessible................................................. Error! Bookmark not defined.

6

32. The ADAAG Does Not Require ISA Signage at All Entrances Under All

7

Circumstances ................................................................... Error! Bookmark not defined.

8

33. The ADAAG Does Not Regulate Exterior Door Opening Force ....Error! Bookmark not defined.

9

34. Plaintiffs Ignored a 9.5 Pound Door Opening Force Measurement in M&C Charts

10

........................................................................................... Error! Bookmark not defined.

35. The ADAAG Does Not Require At Least 24 Inches of Pull Side Width Maneuvering

11

Clearance Beyond the Strike Jamb at Exterior Doors ...... Error! Bookmark not defined.

12

36. The ADAAG Does Not Require Interior Warning Signage at an Inaccessible Exit

Door .................................................................................. Error! Bookmark not defined.

13 37. Thresholds at Doorways ............................................ Error! Bookmark not defined.

14

38. The ADAAG Does Not Contain Any Enforceable Standard as to Floor Mats ..Error!

15

Bookmark not defined.

39. High Chairs Are Full Service Items Requiring Customer Service for a Disabled

16

Customer to Use................................................................ Error! Bookmark not defined.

17

40. The Advertising Stand at Store #3904 Does Not Deprive Access Because the

ADAAG Permits a Vertical Change in Level of Up to ¼ Inch in the Accessible Route

18

........................................................................................... Error! Bookmark not defined.

19

41. The ADAAG Provides that Only One Service Counter with a Cash Register Should

Be Accessible.................................................................... Error! Bookmark not defined.

20 42. The Alleged Obstructions on Accessible Service Counters Did Not Deprive Plaintiffs

21

of Full and Equal Enjoyment of the Services Offered By Taco Bell......Error! Bookmark

not defined.

22 43. The ADAAG Provides a 36” AFF Maximum Height for Service Counters with Cash

23

Registers............................................................................ Error! Bookmark not defined.

24

44. The So-Called “Low Shelves” In Front of the Remodeled Service Counters Protrude Less Than Ten Inches and Permit a Side Approach to the Service Counte...............Error!

25

Bookmark not defined.

26

45. The ADAAG Does Not Require a Forward Reach to Use a Drink Dispenser: Floor Sinks Do Not Affect the Usability of Drink Dispensers... Error! Bookmark not defined.

27

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page6 of 62

1

46. The ADAAG Allows a 54 Inch Side Reach Maximum Over “Obstructions”, and the ADAAG’s Sliding Scale of Side Reach Ranges for ATMs Applies to Non-ATM Element

2

........................................................................................... Error! Bookmark not defined.

(a) The Pickup Counter Is Not an “Obstruction” to a Dispenser That Is Subject to a 34”

3

AFF Maximum Standar........................................ Error! Bookmark not defined.

4

(b) The Drink Dispenser Table Is Not an “Obstruction” to a Dispenser That Is Subject to

a 34” AFF Maximum Standar........................................... Error! Bookmark not defined. 5

(c) The Condiment Counter Is Not an “Obstruction” to a Dispenser That Is

6

Subject to a 34” AFF Maximum Standar.............. Error! Bookmark not defined.

7

47. Plaintiffs’ Experts’ Measurement of Reach Ranges at Tableware and Condiment

Dispensers Is Flawed ........................................................ Error! Bookmark not defined.

8

48. Plaintiffs’ Apparent Position that Duplicate Dispensers Dispensing the Same Item

9

Need to Be Within Reach Ranges Is Flawed .................... Error! Bookmark not defined.

10

49. Many Site Inspections Occurred Before Taco Bell’s Stores Opened to the Public, Depriving Taco Bell of the Opportunity to Organize and Get the Stores Ready for

11

Operations ......................................................................... Error! Bookmark not defined.

50. The Drink Dispenser Table Is Not Subject to a 34” AFF Maximum Standard Because

12

It Is Not a “Food” Service Lin .......................................... Error! Bookmark not defined.

13

51. Plaintiffs Cannot Contradict Their Prior Request for Additional Accessible Seating at

a Particular Area in the Dining Room............................... Error! Bookmark not defined. 14

52. The ADAAG Does Not Require that Accessible Seating Accommodate Companions

15

........................................................................................... Error! Bookmark not defined.

16

53. The ADAAG Does Not Require Counter or Booth Seating to Be Accessible ...Error!

Bookmark not defined.

17

54. McSwain Has Failed to Propose Any Specific Location for the Accessible Seating in

18

Order to Be “Well” Dispersed .......................................... Error! Bookmark not defined.

19

55. The ADAAG Does Not Regulate Emergency Exits in Existing Facilities.........Error! Bookmark not defined.

20

56. The ADAAG Provides a 48 Inch Maximum Height Standard for Door Hardware,

21

Which Should Be Measured From Its Centerline ............. Error! Bookmark not defined.

57. This Court Has Already Ruled that Plaintiffs Lack Standing to Litigate Hardware

22

........................................................................................... Error! Bookmark not defined.

23

58. The Measurement of Door Opening Force Does Not Apply to the Force Required to

Engage or Disengage Devices Including Bolts Used to Keep the Door in a Closed

24

Position ............................................................................. Error! Bookmark not defined.

25

59. The ADAAG Standard for Pull Side Depth Maneuvering Clearance Is 48 Inches

Minimum If the Restroom Door Does Not Have a Closer Error! Bookmark not defined.

26

60. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Pull

27

Side Depth Clear Floor Area............................................. Error! Bookmark not defined.

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page7 of 62

1

61. Stub-Out Walls or Wing Walls Pose No Obstruction to Usability of Restroom Door ........................................................................................... Error! Bookmark not defined.

2

62. The ADAAG Standard for Push Side Depth Maneuvering Clearance Is 42 Inches

Minimum If the Restroom Door Does Not Have a Closer Error! Bookmark not defined. 3

63. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Push

4

Side Depth Clear Floor Are .............................................. Error! Bookmark not defined.

5

64. The ADAAG Does Not Regulate the Extent to Which a Restroom Door Is Permitted

to Swing Into the Wheelchair Turning Space ................... Error! Bookmark not defined.

6

65. Movable Objects Such as Trash Cans Are Not Architectural Barriers...............Error!

7

Bookmark not defined.

8

66. The Wall-Mounted Semi-Recessed Waste Receptacle Does Not Deprive Taco Bell’s Customers of Full and Equal Enjoyment of the Restrooms............. Error! Bookmark not

9

defined.

10

67. The ADAAG Does Not Regulate Slope Surrounding a Floor Drain on an Accessible Route Any Differently Than Any Other Portion of the Accessible Route ................Error!

11

Bookmark not defined.

68. The ADAAG Does Not Require an Automatic Closing Device on an Accessible

12

Toilet Stall......................................................................... Error! Bookmark not defined.

13

69. Plaintiffs’ Failure to Apply the Toilet Stall Door Maneuvering Clearances in Fig.

30(a) of the ADAAG Is Wrong ........................................ Error! Bookmark not defined. 14

70. The ADAAG Does Not Require a Minimum 60 Inch Wide Envelope Surround the

15

Water Closet...................................................................... Error! Bookmark not defined.

16

71. The ADAAG Does Not Require At Least 48 Inches of Clear Floor Space In Front of

the Front End of the Water Closet .................................... Error! Bookmark not defined.

17

72. The ADAAG Does Not Require that the Front End of the Side Grab Bar Be

18

Positioned Exactly 24 Inches In Front of the Water Closet............. Error! Bookmark not

defined.

19

73. The ADAAG Does Not Specify a Particular Maximum Distance Between Toilet

20

Paper Dispenser and the Rear Wall .................................. Error! Bookmark not defined.

21

74. Measurements Applicable to Interior Toilet Stalls Such As the 36 Inch Distance of the Toilet Paper Dispenser from the Rear Wall Do Not Apply to “Water Closets\...Error!

22

Bookmark not defined.

75. The ADAAG Does Not Require Self-Closing Accessible Stall Doors ..............Error!

23

Bookmark not defined.

24

76. The ADAAG Does Not Regulate the Projection of a Urinal.... Error! Bookmark not

defined. 25
77. The ADAAG Does Not Regulate the Precise Minimum Distance Between the

26

Centerline of a Lavatory and the Side Wall...................... Error! Bookmark not defined.

27

78. The ADAAG Does Not Require that the Entirety of the Drain Pipe Be Covered

........................................................................................... Error! Bookmark not defined.

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page8 of 62

1

79. The ADAAG Does Not Require the Insulation of a Hot Water Line If It Was Not Accessible Under the Lavatory......................................... Error! Bookmark not defined.

2

80. The ADAAG Does Not Impose an Insulation Standard Over Cold Water Supply

Line ................................................................................... Error! Bookmark not defined. 3

81. The ADAAG Allows the Forward Reach to Go Beyond the Toe Space............Error!

4

Bookmark not defined.

5

82. The ADAAG Does Not Require That Restroom Dispensers and Controls Be

Mounted No Higher Than 40 Inches AFF ........................ Error! Bookmark not defined.

6

83. Maintenance Issues Cannot Trigger ADA Liability .. Error! Bookmark not defined.

7

84. Plaintiffs Seek Technically Infeasible Modifications Error! Bookmark not defined.

8 V. CONCLUSION................................................................................... Error! Bookmark not defined.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page9 of 62

1

TABLE OF AUTHORITIES

2 Federal Cases
3 Access 4 All, Inc., v. Atlantic Hotel Condominium Ass'n,
4 No. 04-6174-CIV, 2005 WL 5643878 (S.D. Fla. Nov. 23, 2005) .......................................................... 9
5 Access Now, Inc. v. South Florida Stadium Corp.,
6 161 F. Supp. 2d 1357 (S.D. Fla. 2001) ..................................................................................... 19, 22, 39

7 Adelman v. Acme Markets Corp., No. 95-4037, 1996 WL 156412 (E.D. Pa. Apr. 3, 1996)........................................................................ 4
8
9 Ambulatory Surgery Center Group, Ltd., No. 99109CIVSEITZ, 2001 WL 617529 (S.D. Fla. May 2, 2001) ........................................................ 9
10 Antoninetti v. Chipotle Mexican Grill, Inc.,
11 No. 05CV1660-J (WMc), 2008 WL 111052 (S.D. Cal. Jan. 10, 2008) ........................................... 3, 24
12 Association of Disabled Americans, Inc., v. Key Largo Bay Beach, LLC, 13 407 F. Supp. 2d 1321 (S.D. Fla. 2005) ........................................................................................... 11, 42

14 Blake v. Southcoast Health System, Inc., 145 F. Supp. 2d 126 (D. Mass. 2001) ..................................................................................................... 4
15

16

Bleakly v. Sierra Cinemas, Inc., No. CIV. S-07-052 WBS DAD, 2008 WL 109337 (E.D. Cal. Jan. 8, 2008) ......................................... 5

17 Brother v. CPL Investments, Inc.,
18 317 F. Supp. 2d 1358 (S.D. Fla. 2004) ................................................................................................... 6

19 Chapman v. Pier 1 Imports, 20 No. CIV. S-04-1339 LKK CMK, 2006 WL 1686511 (E.D. Cal. June 19, 2006) .................... 15, 22, 42

21 Colorado Cross-Disability Coalition v. Too (Delaware), Inc.,
344 F. Supp. 2d 707 (D. Colo. Nov. 10, 2004)..................................................................................... 41 22

23

D'Lil v. Stardust Vacation Club, No. CIV-S-00-1496 DFL PAN, 2001 WL 1825832 (E.D. Cal. Dec. 21, 2001)....................... 19, 25, 38

24 Doran v. 7-Eleven, Inc.,
25 524 F.3d 1034 (9th Cir. 2008) ................................................................................................................ 7

26 Eiden v. Home Depot USA, Inc., 27 No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418 (E.D. Cal. May 26, 2006) ............................ 15, 41
28 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)........................................................................ 6

Case No. 02-5849 PJH JL
OC 286,421,313v1

TBC’s Mot. Partial Summ. J.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page10 of 62

1 Grove v. De La Cruz, 2 407 F. Supp. 2d 1126 (C.D. Cal. 2005) .............................................................................................. 5, 6

3 Harris v. Costco Wholesale Corp., 389 F. Supp. 2d 1244 (S.D. Cal. 2005)................................................................................................. 32
4

5

Harris v. Del Taco, Inc., No. SACV 04-730 DOC (MLGx), 2004 WL 3744291 (C.D. Cal. Sept. 13, 2004)........................ 36, 37

6 Harris v. Stonecrest Care Auto Center, LLC,
7 No. 04-cv-2593-LAB-LSP, 472 F. Supp. 2d 1208 (S.D. Cal. 2007)...................................................... 4

8 Hubbard v. 7-Eleven, Inc., 9 433 F. Supp. 2d 1134 (S.D. Cal. 2006)..................................................................................... 15, 18, 24

10 Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150 (S.D. Cal. 2006)
11
Independent Living Resources v. Oregon Arena Corp., 12 1 F. Supp. 2d 1124 (D. Or. 1998)
13 Independent Living Resources v. Oregon Arena Corp.,
14 982 F. Supp. 2d 698 (D. Or. Nov. 12, 1997)

10 22, 47
6, 9

15 Jones v. Taco Bell Corp., 16 No. S-04-1030 GEB GGH, 2005 WL 1406098 (E.D. Cal. June 14, 2005)
17 Long v. United States Internal Revenue Serv., 693 F.2d 907 (9th Cir. 1982)
18 Mannick v. Kaiser Foundation Health Plan, Inc.,
19 No. C 03-5905 PJH, 2006 WL 1626909 (N.D. Cal. June 9, 2006)
20 Martinez v. Home Depot USA, Inc., 21 No. Civ. S-04-2272 DFL DAD, 2007 WL 926808 (E.D. Cal. Mar. 27, 2007)

15 4
38 41, 46

22 Martinez v. Longs Drug Stores Corp., No. 05-17142, 281 Fed. Appx. 712, 2008 WL 2329712 (9th Cir. June 5, 2008)
23
24 Massachusetts v. E*Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006)
25 Moeller v. Taco Bell Corp.,
26 No. C 02-5849 MJJ, 2005 WL 1910925 (N.D. Cal. Aug. 10, 2005)

6 41 9, 36

27 Ostendorf v. Dawson County Corrections Bd.,

28 No. 4:98CV3038, 2002 WL 31085085 (D. Neb. Sept. 18, 2002)

5

Error! Reference source not found.

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page11 of 62

1 Parr, 2 96 F. Supp. 2d 1065

3 Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir. 2006)
4

5

Roberts v. Royal Atlantic Corp., 445 F. Supp. 2d 239 (E.D.N.Y. Aug. 15, 2006)

6 Sanford v. Del Taco, Inc.,
7 No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006)

8 Sanford v. Del Taco, Inc., 9 No. CIV-S-04-1337-DFL/CMK, 2006 WL 1310318 (E.D. Cal. May 12, 2006)

10 Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL 512426 (E.D. Cal. Feb. 12, 2007)
11
Sharp v. Rosa Mexicano, D.C., LLC, 12 No. 06-1693 (JDB), 2007 WL 2137301 (D.D.C. July 26, 2007)
13 Stringer v. White,
14 No. C-07-5516 SI, 2008 WL 344215 (N.D. Cal. Feb. 6, 2008)

15 United States v. AMC Entertainment, Inc., 16 549 F.3d 760 (9th Cir. 2008)
17 United States v. National Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001)
18 White v. Divine Investments, Inc.,
19 No. CIV. S-04-0206 FCD/DA, 2005 WL 2491543 (E.D. Cal. Oct. 7, 2005)
20 Wilson v. Haria and Gogri Corp., 21 No. CIV. S. 05-1239 LKK/DAD, 2007 WL 851744 (E.D. Cal. Mar. 22, 2007)

22 Wilson v. Norbreck, LLC, No. 04-cv-00690-DFL-JFM, 2005 WL 3439714 (E.D. Cal. Dec. 14, 2005)
23
24 Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054 (E.D. Cal. 2006)
25 State Cases
26 Donald v. Café Royale, Inc., 27 218 Cal. App. 3d 168 (Cal. Ct. App. 1990)
Federal Statutes 28 42 U.S.C. § 12188(a)(1)

Error! Reference source not found.

3 10 10 5, 34 34 15
5 4 3 23 25, 27, 46 6 25, 34, 46, 48 15, 25
4 6

Case4:02-cv-05849-PJH Document458 Filed10/20/09 Page12 of 62

1 Cal. Retail Food Code § 114169 2
Federal Regulations 3 28 C.F.R. § 36.304(a)
28 C.F.R. Part 36 4 28 C.F.R. Pt. 36
56 C.F.R. 35414-15 (July 26, 1991) 5 56 Fed. Reg. 35 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Error! Reference source not found.

33
41 3
10, 37, 40 41
41, 42

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I.

3

INTRODUCTION

4

Taco Bell Corp. (“Taco Bell”) has expended over $8 million to modify and enhance the

5 accessibility of its California company-owned Taco Bell stores since 2006. In addition, in 2009, Taco

6 Bell has commenced a twice a year inspection program of all of its California company-owned stores for

7 accessibility-related issues via an outside general contractor, Maintco Corp. (“Maintco”). Further, in

8 recent years, Taco Bell has implemented a formal policy of assisting disabled customers, including

9 signage in stores reflecting such policy, which constitutes a reasonable modification of its self-service

10 policy and equivalent facilitation to its wheelchair-bound customers in the event that they encounter any

11 architectural barriers. Taco Bell submits that the modifications Taco Bell has already completed and

12 intends to still perform before the hearing on this matter have rendered the federal claim for relief moot

13 as a matter of law.

14

Given that injunctive relief is the sole form of relief available for violations of ADA, and it is

15 inappropriate given Taco Bell’s demonstrated commitment to provide full and equal access to its

16 wheelchair-bound customers, Taco Bell respectfully requests that the Court grant partial summary

17 judgment as to plaintiffs’ federal claim for relief under the ADA.

18

II.

19

STATEMENT OF THE ISSUES TO BE DECIDED

20

1. Has Taco Bell Corp. rendered moot plaintiffs’ requests for injunctive relief based on the

21 ADA?

22

III.

23

STATEMENT OF FACTS

24

After the instant ADA action was commenced on December 17, 2002, a Special Master, Bob

25 Evans, was appointed to conduct site inspections and to prepare survey reports after his appointment by

26 the Court on October 5, 2004. [Docket #98 & #101] Such inspections took place in the fall of 2004 and

27 spring of 2005, and resulted in the preparation of Interim Survey Reports, which plaintiffs filed on

28 December 14, 2006. [Docket #216-#240, #242] Thereafter, pursuant to the October 5, 2004 order, the

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1 parties commenced a formal “meet and confer” process that resulted in plaintiffs submitting to Taco

2 Bell approximately 220 store-specific charts identifying certain alleged architectural barriers and

3 plaintiffs’ proposed solutions, if any. Such “meet and confer” charts were provided to Taco Bell from

4 April through June 2006. As part of the “meet and confer” process, it became readily apparent that the

5 parties disagreed or had questions as to the Special Master’s measurement methodology used in

6 conducting his surveys and the impact it had on his measurements. (See Order Concerning Questions to

7 the Special Master of 9/24/07) [Docket #326] Without waiting for resolution of such matters, Taco Bell

8 decided to proactively and voluntarily commence an ADA remediation program in 2006 immediately

9 upon receipt of plaintiffs’ “meet and confer” charts. Such program has resulted in the expenditure to

10 date of over $8 million in order to modify its California company-owned stores. (S. Elmer decl. ¶ 2.)

11

On June 27, 2008, this Court issued an order requiring that plaintiffs commence “immediately”

12 the inspection of Taco Bell’s California company-owned stores via their accessibility experts. (Order of

13 6/27/08 at 2:13) [Docket #386] All of the subsequent 172 site inspections, which commenced on

14 September 22, 2008 and were largely completed in February 2009, with the exception of a single

15 inspection that took place in April 2009, were conducted by plaintiffs’ retained expert, Eric McSwain

16 (“McSwain”). Plaintiffs’ other formally designated accessibility expert, James Terry, did not attend a

17 single site inspection subsequent to the Court’s June 27, 2008 order. On May 1, 2009, which was the

18 parties’ cut-off date for exchanging their respective expert reports “on ADA liability”, (Order of 6/27/08

19 at 2:23), plaintiffs exchanged McSwain’s 420 page document (i.e., his expert report) identifying literally

20 thousands of alleged barriers across the Taco Bell stores that he inspected in 2008 and early 2009. Such

21 document was marked as Exhibit 3 to McSwain’s May 1, 2009 declaration and to date has not been

22 supplemented.

23

Although Taco Bell has been feverishly remediating its California company-owned stores

24 voluntarily in response to its receipt of McSwain’s expert report, his expert report, which was supposed

25 to be limited to “ADA liability,” is grossly overbroad in its scope, contradicts plaintiffs’ prior positions

26 taken during the “meet and confer” stage of this case, and appears to improperly characterize certain

27 alleged barriers as ADA violations notwithstanding the fact that the case law and federal Department of

28

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1 Justice regulations implementing the ADA, see 28 C.F.R. Part 36, Appendix A (the “ADAAG”),

2 indicate to the contrary.

3

IV.

4

ARGUMENT

5 A. The Mootness Doctrine Applies.

6

1. Legal Standard for Injunctive Relief

7

“Injunctive relief is an equitable remedy, and is not available as a matter of course.” Antoninetti

8 v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc), 2008 WL 111052, at *24 (S.D. Cal. Jan. 10,

9 2008) (Jones, J.). “It is the plaintiff’s burden to establish these elements.” Id. at *24. “Injunctive relief

10 should be denied unless it is the only means of ensuring compliance.” Id. at *24 (emphasis added).

11

“A plaintiff seeking injunctive relief under the ADA ‘must demonstrate that an injunction . . . is

12 justified by the relief it will provide.’” Id. at *24 (quoting Access Now, Inc. v. South Florida Stadium

13 Corp., 161 F. Supp. 2d at 1369). “[W]hether a requested alteration would be effective is relative to the

14 impediment presented by the barrier and the associated cost of removing it.” Id. at *24 (emphasis

15 added); (denying injunctive relief in part because of the plaintiff’s failure to present evidence as to the

16 “cost or feasibility” of an injunction at a post-January 26, 1993 facility requiring that a wall be lowered

17 to a maximum 36 inches instead of 44 inches).

18

“Whether a requested alteration would be effective is relative to the impediment presented by the

19 barrier and the associated cost of removing it. For example, removal of a barrier that actually denies

20 disabled persons access to an element of the accommodation would be greatly effective and the court

21 would be justified in imposing a costly injunction, provided that the cost is proportionate to the benefit it

22 offers. Conversely, injunctive relief would not be appropriate for de minimis violations that ‘do not

23 materially impair the use of an area for its intended purpose, . . . [or] pose any apparent danger to

24 persons with disabilities.’” Id. at 1369 (quoting Parr, 96 F. Supp. 2d 1065, 1086 n.26).

25

“A district court has considerable discretion in granting injunctive relief and in tailoring its

26 injunctive relief.” United States v. AMC Entertainment, Inc., 549 F.3d 760, 768 (9th Cir. 2008)

27 (Wardlaw, J.). “[A] trial court abuses its discretion by fashioning an injunction which is overly broad.”

28 Id.

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1

The Lyons standing standard applies to injunctions sought for violations of the ADA. Blake v.

2 Southcoast Health System, Inc., 145 F. Supp. 2d 126, 132 (D. Mass. 2001) (Young, C.J.).

3

In determining whether injunctive relief should be granted, “the district court should seriously

4 consider the likelihood of recurrence, weighing the good faith of any expressed intent to comply, the

5 effectiveness, if any, of the discontinuance and the character of past violations.” Long v. United States

6 Internal Revenue Serv., 693 F.2d 907, 909 (9th Cir. 1982). “[A]n allegation of past disability

7 discrimination will not support a claim under the ADA for injunctive relief.” Adelman v. Acme Markets

8 Corp., No. 95-4037, 1996 WL 156412, at *2 (E.D. Pa. Apr. 3, 1996) (Waldman, J.); see Donald v. Café

9 Royale, Inc., 218 Cal. App. 3d 168, 184 (Cal. Ct. App. 1990) (“Injunctive relief will be denied where, at

10 the time of the order or judgment, no reasonable probability exists of the recurrence of the past acts. An

11 injunction should not be granted as punishment for past acts where it is unlikely that they will recur.”).

12

“If plaintiff cannot demonstrate a likelihood that he will suffer future discrimination at the hands

13 of a defendant, even one who has discriminated against him in the past, he does not have standing to

14 obtain an injunction under Title III.” Stringer v. White, No. C-07-5516 SI, 2008 WL 344215, at *6

15 (N.D. Cal. Feb. 6, 2008) (Illston, J.) (emphasis added). “[A] plaintiff seeking to force compliance via

16 injunctive relief must demonstrate standing by establishing that defendant’s allegedly wrongful behavior

17 will likely occur or continue and that the threatened injury is continuing.” Gasper v. Marie Callender

18 Pie Shops, Inc., No. CV 05-1435 CBM (SSx), slip op. at 5:10-13 (C.D. Cal. June 27, 2006) (Marshall,

19 J.).

20

“While standing is established as of the filing of the suit, a claim may become moot even after

21 filing if a litigant does not continue to have a personal stake in the outcome of the lawsuit that is likely

22 to be redressed by a favorable decision.” Harris v. Stonecrest Care Auto Center, LLC, No. 04-cv-2593-

23 LAB-LSP, 472 F. Supp. 2d 1208, 1218 (S.D. Cal. 2007) (Burns, J.).

24

In Dowling v. MacMarin, Inc., No. C-94-2899 WHO (N.D. Cal. Sept. 6, 1996) (Orrick, J.), the

25 court found that the defendant had recently constructed a new, fully ADA-compliant restroom rendering

26 the prayer for injunctive relief moot. “This Court cannot order [defendant] to do more than what is has

27 already done: construct a fully disabled-accessible restroom.” Id. at 10.

28

2. Mootness Legal Standard

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1

“When a defendant remedies the challenged conditions to bring them within ADA compliance, a

2 plaintiff’s ADA claim becomes moot and the defendant is entitled to summary judgment.” Bleakly v.

3 Sierra Cinemas, Inc., No. CIV. S-07-052 WBS DAD, at *1 (E.D. Cal. Jan. 8, 2008) (Shubb, J.).

4

“’A claim for equitable relief is moot ‘absent a showing of irreparable injury, a requirement that

5 cannot be met where there is no showing of any real or immediate threat that the plaintiff will be

6 wronged again.’” Ostendorf v. Dawson County Corrections Bd., No. 4:98CV3038, 2002 WL 31085085,

7 at *6 (D. Neb. Sept. 18, 2002) (citation omitted).

8

Numerous federal district courts have applied the mootness doctrine in the context of federal

9 court actions based upon Title III of the ADA. See, e.g., Bleakly v. Sierra Cinemas, Inc., No. CIV. S-

10 07-052 WBS DAD, 2008 WL 109337, at *1 (E.D. Cal. Jan. 8, 2008) (Shubb, J.); Rodriguez, et al. v.

11 Ralphs Grocery Co., No. 07-CV-02311-R (PLAx), slip op. (C.D. Cal. Nov. 7, 2007) (Real, J.); Sharp v.

12 Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB), 2007 WL 2137301, at *3 (D.D.C. July 26, 2007)

13 (Bates, J.); Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc), slip op. at 21:23-26,

14 22:20-22 (S.D. Cal. June 14, 2007) (Jones, J.); Molski v. Foster Freeze Paso Robles, No. CV 04-03780

15 DDP (JWJx), slip op. at 10:15-12:12 (C.D. Cal. May 10, 2007) (Pregerson, J.); Hubbard v. Kayo Oil

16 Co., No. 05CV2076 BEN (BLM) slip op. at 1:18-22 (S.D. Cal. Dec. 22, 2006) (Benitez, J.); Sanford v.

17 Del Taco, Inc., No. 04-cv-2154-GEB-EFB, 2006 WL 2669351, at *4 (E.D. Cal. Sept. 18, 2006) (Burrell,

18 J.); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130 (C.D. Cal. 2005) (Snyder, J.).

19

“A case is moot when ‘events have so transpired that the decision will neither presently affect

20 the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Sharp v.

21 Rosa Mexicano, D.C., LLC, No. 06-1693 (JDB), 2007 WL 2137301, at *3 (D.D.C. July 26, 2007)

22 (Bates, J.). “Mootness deprives the Court of its ability to take remedial action because ‘there is nothing

23 for [the court] to remedy, even if [it] were inclined to do so.’” Id. (emphasis added).

24

In Sharp, the district court held that the defendant’s evidence clearly demonstrated that the

25 alleged unlawful conduct cannot reasonably be expected to recur. The stall included an accessible sink-

26 equipment that is a “fixture” within the restaurant. Id. at *4. The court held, “The alleged

27 discrimination cannot reasonably be expected to recur because ‘structural modifications . . . are unlikely

28 to be altered in the future.’” Id. at *4 (quoting Indep. Living Resources v. Oregon Arena, 982 F. Supp.

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1 698, 774 (D. Or. 1997)); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005)

2 (holding that installation of grab rails by restaurant rendered moot plaintiff’s ADA complaint requesting

3 installation of such rails, finding no basis to conclude the challenged conduct would be repeated).

4

In Martinez v. Longs Drug Stores Corp., No. 05-17142, 281 Fed. Appx. 712, 2008 WL 2329712

5 (9th Cir. June 5, 2008), the Ninth Circuit affirmed the district court’s refusal to award injunctive relief in

6 an ADA action notwithstanding the plaintiff’s argument that certain architectural barriers such as the

7 placement of the garbage can and aisle displays were likely to recur. Id. at *1. In support, the Ninth

8 Circuit cited the U.S. Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

9 Inc., 528 U.S. 167, 193, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000), which held that the district court may

10 “conclude that an injunction would be an excessively intrusive remedy”.

11

In Foster Freeze Paso Robles, supra, the district court noted, “Defendants have already

12 remedied a number of architectural barriers without being enjoined to do so,” and “[t]here is no

13 indication that Defendants would attempt to undo those remedies if the Court refrained from granting

14 injunctive relief.” Id. at 12:3-7.

15

“In order to prove discrimination stemming from an architectural barrier, plaintiff must

16 demonstrate that (1) he is disabled, (2) the facility in question is a place of public accommodation, (3)

17 the facility contains an architectural barrier, (4) the plaintiff had actual knowledge of the architectural

18 barrier precluding his full and equal access to the facility.” Wilson v. Haria and Gogri Corp., No. CIV.

19 S. 05-1239 LKK/DAD, 2007 WL 851744, at *3 (E.D. Cal. Mar. 22, 2007) (Karlton, J.) (emphasis

20 added).

21

“Plaintiffs do not have standing to complain about alleged barriers which they were unaware of

22 at the filing of their complaint.” Brother v. CPL Investments, Inc., 317 F. Supp. 2d 1358, 1368 (S.D.

23 Fla. 2004). The actual knowledge requirement is derived from both Article III standing and the “futile

24 gesture” language set forth in 42 U.S.C. § 12188(a)(1):

25

“Nothing in this section shall require a person with a disability to engage in a

26

futile gesture if such person has actual notice that a person or organization covered by

this subchapter does not intend to comply with its provisions.”

27 42 U.S.C. § 12188(a)(1) (emphasis added). In other words, a person has not suffered actionable

28 disability discrimination under the ADA without the requisite actual notice that the public

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1 accommodation at issue “does not intend to comply with” the ADA provisions. Only if such actual

2 notice exists can a person avoid making the “futile gesture” stated in the ADA provision and state a

3 claim for injunctive relief.

4

“[P]laintiff] bears the burden of producing sufficient evidence to defeat summary judgment

5 regarding each of the store’s alleged ADA violations because he would bear the burden of proving such

6 violations at trial.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008) (Gould, J.) (2-1

7 decision).

8

3. Taco Bell Lacks Any Legal Authority to Modify Any Features at Stores that Have

9

Either Permanently Closed or Were Sold to Franchisees.

10

As an initial matter, Taco Bell lacks any legal authority to modify any features at stores that have

11 either permanently closed or have been sold to franchisees.

12

Nevertheless, plaintiffs continue to identify store #1496 as a store for which plaintiffs continue

13 to seek injunctive relief against Taco Bell. Store #1496, however, was sold to a franchisee effective as

14 of April 24, 2009. (Elmer decl. ¶ 16.)

15

4. Taco Bell Has Modified the Vast Majority of Features Raised in Plaintiffs’ Expert

16

Reports of May 1, 2009.

17

Taco Bell has modified the vast majority of features raised in plaintiffs’ expert reports of May 1,

18 2009. (See S. Elmer decl. ¶¶ 18-57 Ex. 18; R. Reeves decl. ¶¶ 3-164.) Given that Taco Bell is still in

19 the process of documenting the remediation work performed by its outside contractors, which remains

20 ongoing to date, Taco Bell intends to supplement its papers with additional information as to additional

21 accessibility modifications before the Court’s scheduled hearing.

22

5. Taco Bell Has Modified the Vast Majority of Features Raised in Plaintiffs’ Meet

23

and Confer Charts of 2006.

24

This Court can and should infer that the elements raised in plaintiffs’ 2006 Meet and Confer

25 charts have been remediated based on their omission from plaintiffs’ expert reports following over 180

26 site inspections performed by at least one of plaintiffs’ two retained accessibility experts. As one can

27 see from plaintiffs’ lengthy Meet and Confer Charts, (Hikida decl. ¶ 3 Ex. 2), plaintiffs sought

28 extremely burdensome and costly modifications.

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1

6. Taco Bell Has Expended Over $8 Million to Remediate Its California Taco Bell

2

Company-Owned Stores Since 2006.

3

Taco Bell has expended over $8 million to remediate its California company-owned stores since

4 2006. (Elmer decl. ¶ 2.)

5

7. Taco Bell Has Retained Maintco to Conduct Twice a Year ADA Maintenance

6

Inspections of Its California Taco Bell Stores.

7

Beginning in or about April 2009, Taco Bell retained an outside general contractor, Maintco

8 Corp., to conduct twice a year inspections of all of its California Taco Bell company-owned stores

9 regarding ADA accessibility issues. (Elmer decl. ¶ 5.) Thus, Taco Bell’s interest in being barrier-free

10 as to the mobility-impaired is an ongoing commitment.

11 B. Taco Bell’s Defenses Other Than the Mootness Doctrine.

12

1. Even Assuming that Self-Service Dispensers and Other Elements Are Subject to the

13

ADAAG, Taco Bell Provides Equivalent Facilitation in the Form of Customer

14

Assistance.

15

Taco Bell’s policy of assisting disabled customers, including signage reflecting such policy,

16 constitutes a reasonable modification of its self-service policy. (Elmer decl. ¶¶ 6-14.) The ADAAG

17 expressly recognizes that departures from particular technical and scoping requirements in federal

18 guidelines is permissible if alternative designs and technologies provide substantially equivalent or

19 greater access to and usability of the facility. (ADAAG, 2.2.) ADAAG 2.2 provides, “Departures from

20 particular technical and scoping requirements of this guideline by the use of other designs and

21 technologies are permitted where the alternative designs and technologies used will provide

22 substantially equivalent or greater access to and usability of the facility.” (ADAAG, 2.2) (emphasis

23 added).

24

“The purpose of the Title III regulations is to ensure that persons with disabilities have the

25 opportunity to benefit from public accommodations. The various design standards are only the

26 designated means for accomplishing those objectives. The equivalent facilitation exception is an

27 acknowledgment that the federal government does not enjoy a monopoly on good ideas, and that there

28 may be more than one means to accomplish a particular objective.” Independent Living Resources v.

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1 Oregon Arena Corp., 982 F. Supp. 2d 698, 727 (D. Or. Nov. 12, 1997) (Ashmanskas, Mag. J.)

2 (emphasis added). “DOJ has acknowledged that in some instances an equivalent facilitation may be

3 appropriate so that a designer can comply with both the ADA and state or local building codes.” Id. at

4 727. The Oregon Arena court rejected a new technology requirement for equivalent facilitation. Id.

5

Even a facility that constitutes new construction can make use of equivalent facilitation. See,

6 e.g., Access 4 All, Inc., v. Atlantic Hotel Condominium Ass’n, No. 04-6174-CIV, 2005 WL 5643878, at

7 *15 (S.D. Fla. Nov. 23, 2005) (Cohn, J.) (“Although a newly constructed building should strive to be the

8 most accessible it can be, ADAAG § 5.2 clearly allows the form of equivalent facilitation of having

9 service available at a nearby table.”).

10

In Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL 1910925 (N.D. Cal. Aug. 10,

11 2005) (Jenkins, J.), the district court held, “[T]he Court finds that there are only two requirements for an

12 equivalent facilitation: 1) it is an alternative design or technology; and 2) it provides equal or greater

13 access to subject facilities.” Id. at *3 (emphasis added). “It appears that the purpose of the exception is

14 to give architects the flexibility to design facilities that may not strictly comply with the Accessibility

15 Standards but nonetheless provide equivalent facilitation.” Id. at *3. The equivalent facilitation

16 exception allows facilities to bypass the technical requirements laid out in the ADAAG. Id. at *3 n.1.

17

“[E]quivalent facilitation stands on its own as an appropriate standard for certain results that may

18 differ from the ADAAG standards.” Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., No.

19 99109CIVSEITZ, 2001 WL 617529, at *4 (S.D. Fla. May 2, 2001) (Garber, Mag. J.).

20

2. The City of La Mirada Has Refused to Allow Taco Bell to Install an Accessible Path

21

of Travel Connecting the Public Sidewalk to the Store Entrance of Store #5636.

22

In 2008, Taco Bell attempted to install an accessible route of travel between the public sidewalk

23 on the north side of La Mirada Boulevard and the south entrance of store #5636. Taco Bell obtained

24 building permits to engage in such work. After Taco Bell had begun construction on the path of travel,

25 on or about June 21, 2008, the City of La Mirada changed its position and ultimately refused to allow

26 Taco Bell to complete the path of travel to the public sidewalk based on the explanation that such path

27 of travel would traverse the drive thru lane and pose a hazard. Thus, after Taco Bell had expended the

28 expense of digging up the grass landscaping in the area next to the public sidewalk and demolishing a

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1 portion of the concrete walkway on the south side of the store in preparation for the anticipated path of

2 travel across the drive thru lane, Taco Bell was forced by the City to remove the new walkway and

3 return the store to its former condition.

4

3. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Ramp

5

at Store #829.

6

The ADAAG provides a “technically infeasible” defense that applies to the ramp at store #829.

7 (28 C.F.R. Pt. 36, App. A, ADAAG, § 4.1.6(1)(j).)

8

At store #829, plaintiffs’ apparent request for bottom, intermediate, and top landings that are at

9 least 60 or 72 inches in length on the same ramp at issue is technically infeasible. (ADAAG 4.1.6(j).)

10 Taco Bell has provided accessibility to the maximum extent feasible via the installation of new

11 continuous handrails on the entire length of the ramp at issue. (ADAAG 4.1.6.)

12

4. The ADAAG Only Obligates a Facility Operator to Ensure an Accessible Route

13

Within the Boundary of the Site and Not Beyond.

14

The ADAAG provides, “At least one accessible route complying with 4.3 shall be provided

15 within the boundary of the site from public transportation stops, accessible parking spaces, passenger

16 loading zones if provided, and public streets or sidewalks, to an accessible building entrance.”

17 (ADAAG 4.1.2(1).) In addition, the ADAAG provides, “At least one accessible route complying with

18 4.3 shall connect accessible buildings, accessibility facilities, accessible elements, and accessible spaces

19 that are on the same site.” (ADAAG 4.1.2(2).)

20

In Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir. 2006) (Hug, J.), the Ninth

21 Circuit affirmed the district court’s holding that a private entity had no legal obligation to build a

22 walkway across 10-foot wide piece of public land to connect to a public sidewalk. Id. at 967-68; see

23 also Roberts v. Royal Atlantic Corp., 445 F. Supp. 2d 239, 246 (E.D.N.Y. Aug. 15, 2006) (Wexler, J.)

24 (holding that the construction of a switch back ramp involved the use of public property so this proposal

25 was flawed); Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1165, 1169 (S.D. Cal. 2006) (Hayes, J.)

26 (holding that the defendant could not modify the barriers on the parcel that it owned or leased because of

27 the unresolved slope problems on the adjoining parcels owned by others that would create elevation and

28 tripping problems); Dodson v. Dollar Tree Stores, Inc., No. 2:04-cv-1068-MCE-CMK, slip op. at *1

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1 (E.D. Cal. July 25, 2006) (England, J.) (holding that the store does not own, lease or control the

2 common areas or the parking lot of the shopping center at issue); Association of Disabled Americans,

3 Inc., v. Key Largo Bay Beach, LLC, 407 F. Supp. 2d 1321, 1342 (S.D. Fla. 2005) (King, J.) (“There is

4 no legal basis to find an ADA violation pertaining to property not owned by these Defendants.”);

5 Hooper v. Calny Inc., No. CIV-S-03-0167 DFL/GGH, slip op. at 6:13-7:3 (E.D. Cal. May 7, 2004)

6 (Levi, J.) (holding that sidewalks were outside of the boundary of the restaurant site at issue).

7

Plaintiffs’ expert, Eric McSwain, measured the slope and cross-slope of the public sidewalk

8 where it crossed the driveway apron at numerous stores (i.e., #99, #137, #283, #863, #2423, #2755,

9 #2918, #2961, #3027, #3055, #3070, #3079, #3152, #3160, #3196, #3209, #3222, #3471, #3579, #4325,

10 #4510, #4578, #5223, #5259, #5513, #9489, #15573, #16140, #16812, #17363, #17471, #17751,

11 #18606, #18687, #19289, #19344, #19591, #19744, #20180, #20578). McSwain’s measurement of

12 features that are in the public sidewalk and, therefore, the public right-of-way is flawed because Taco

13 Bell does not have the ability to control the public right-of-way, which is under the local municipality’s

14 exclusive control. Taco Bell is unaware of any case law that supports McSwain’s slope measurements

15 of a driveway apron that is in the public right-of-way.

16

5. The ADAAG Does Not Require that Elements at a Facility Be Accessible If They

17

Are Not on an Accessible Route for Use By Disabled Customers.

18

The ADAAG provides, “At least one accessible route complying with 4.3 shall be provided

19 within the boundary of the site from public transportation stops, accessible parking spaces, passenger

20 loading zones if provided, and public streets or sidewalks, to an accessible building entrance.”

21 (ADAAG 4.1.2(1).) In addition, the ADAAG provides, “At least one accessible route complying with

22 4.3 shall connect accessible buildings, accessibility facilities, accessible elements, and accessible spaces

23 that are on the same site.” (ADAAG 4.1.2(2).) To the extent that plaintiffs are relying upon ADAAG

24 4.1.2 for the proposition that all elements at a site that could potentially be used by disabled customers

25 be made accessible, that interpretation of the ADAAG is wrong.

26

Indeed, plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the

27 ramp at the service entrance at the back of store #3196.

28

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1

At store #4622, the east ramp run surveyed by McSwain is not on any accessible route. It clearly

2 ends next to the drive thru lane and is inaccessible. (See EM11591.) Thus, McSwain erred by

3 surveying such ramp including the handrail extensions, which McSwain take issue with.

4

These omissions constitutes evidence that the ramp to the service entrance did not deprive

5 plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

6

Similarly, at store #20310, McSwain takes issue with the turn knobs to exterior patio doors even

7 though such knobs are not for use by any customer. The turn knobs are used only by building security

8 to lock the exterior patio doors in the evening after the Discovery Science Center, which contains the in-

9 line Taco Bell store, closes for the day. Thus, McSwain’s measurement is irrelevant.

10

6. Running Slope of Walkways

11

Even if the Court does not find that Taco Bell’s modifications have rendered certain issues moot,

12 plaintiffs failed to challenge as noncompliant walkways that had a 6.0% running slope at store number

13 3053 in their 2006 Meet and Confer Charts. The apparent reason why plaintiffs failed to challenge such

14 running slope is that plaintiffs determined that the slope did not deprive plaintiffs of “full and equal

15 enjoyment” of the services provided at the Taco Bell stores.

16

This omission constitutes evidence that such cross-slope in accessible walkways did not deprive

17 plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

18

7. Cross-Slope of Walkways

19

Even if the Court does not find that Taco Bell’s modifications have rendered certain issues moot,

20 plaintiffs failed to challenge as noncompliant walkways that exceeded 3.0% cross-slope at store

21 numbers 3027 (3.3%) and 3471 (3.8%) in their 2006 Meet and Confer Charts. The apparent reason why

22 plaintiffs failed to challenge such cross-slope is that plaintiffs determined that the cross-slope did not

23 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

24

These omissions constitute evidence that such cross-slope in accessible walkways did not

25 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

26

8. The ADAAG Provides a 36” Minimum Width Standard Generally for an Accessible

27

Route.

28

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1

In general, the ADAAG provides a 36 inch minimum width standard for an accessible route.

2 (ADAAG 4.8.3.) The minimum clear width standard specified in the ADAAG is even smaller (i.e., 32

3 inches) at short distances of up to 24 inches in length. (ADAAG 4.13.5.) Indeed, plaintiffs failed to

4 challenge in their 2006 Meet and Confer Charts as noncompliant the width of the accessible route even

5 though they were less than 48 wide as follows: 45-1/2 inches for a distance of 33 inches at store 5636.

6 These omissions constitutes evidence that the width of the accessible route did not deprive plaintiffs of

7 “full and equal enjoyment” of the services provided at the Taco Bell stores.

8

9. The ADAAG Only Provides a 36” Minimum Width Standard for a Pedestrian

9

Ramp.

10

McSwain challenges the width of the ramp at store #2423 as less than 48 inches wide. The

11 ADAAG provides a 36 inch minimum width standard for pedestrian ramps. (ADAAG 4.8.3.) Indeed,

12 plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the width of

13 pedestrian ramps even though they were less than 48 wide as follows: 44 inches at store 2423. These

14 omissions constitutes evidence that the width of the pedestrian ramps did not deprive plaintiffs of “full

15 and equal enjoyment” of the services provided at the Taco Bell stores.

16

10. The ADAAG Does Not Require that a Landing Length Exceed 60 Inches.

17

The ADAAG provides that the landing length shall be a minimum of 60 inches clear. (ADAAG

18 4.8.4(2).) Thus, the existing landing at store #17572 exceeds the ADAAG standard.

19

11. The ADAAG Does Not Require Handrail Extensions on Ramps If the Handrails Are

20

Continuous.

21

The ADAAG requires handrail extensions beyond the ramp run only if the handrails are not

22 continuous. (ADAAG 4.8.5(2).) At store #4622, the handrails were continuous at the ramp runs at

23 issue. (See EM11591.) At store #17572, the handrails were continuous at the ramp at issue. (See

24 EMP010448.)

25

12. The ADAAG Does Not Regulate Whether Handrail Extensions May Be Turned 90

26

Degrees to the Run of the Ramp.

27

Even assuming that handrail extensions are required at certain ramps wherein the handrails are

28 not continuous, the ADAAG does not regulate the circumstances wherein handrail extensions may be

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1 turned 90 degrees to the run of the ramp. (See ADAAG 4.8.5.) Thus, whether the extension of the

2 handrail would create a hazard unless it is turned is irrelevant at stores like #3471.

3

13. McSwain’s Measurement Methodology of Measuring the Length of a Ramp

4

Landing Only to an Expansion Joint Is Flawed.

5

McSwain’s measurement methodology is flawed because he measured the length of the so-called

6 bottom landing at store #22691 by measuring the distance to the concrete expansion joint in the ramp

7 instead of measuring beyond the expansion joint. Had he done so, he would have discovered that the 3-

8 1/2 inches area beyond the expansion joint is between 2.2% and 2.7% running slope. Plaintiffs have

9 agreed to 3% running slope at a ramp landing as an “acceptable measurement”. Thus, the landing length

10 is 60 inches, which complies with ADAAG 4.8.4.

11

14. The ADAAG Does Not Require a Minimum 72 Inches in Length Ramp at a Change

12

in Direction.

13

At store #22691, McSwain’s characterization of the intermediate ramp landing as not in the same

14 direction as the so-called upper ramp run is misleading. McSwain’s photographs demonstrate that the

15 landing at issue is in the same general direction as the upper ramp run, and there was no attempt by

16 McSwain to measure the precise change in direction, which is insignificant. The ADAAG does not

17 regulate the change in direction at issue. Thus, McSwain cannot rely upon the ADAAG in seeking a 72

18 inches minimum length intermediate landing.

19

15. The ADAAG Provides that Curb Ramps Do Not Need Handrails.

20

At store #22691, McSwain requests the installation of handrails on what he characterizes as a

21 ramp, which is better characterized as a curb ramp.

22

The ADAAG provides that handrails “are not required on curb ramps.” (ADAAG 4.8.5.) A

23 curb ramp is defined as a “short ramp cutting through a curb or built up to it.” (ADAAG 3.5.) The

24 ADAAG does not specify the length of a “short” ramp. The maximum length of an accessible “ramp” is

25 defined in the ADAAG as having a horizontal projection or “run” that is either 30 or 40 feet in length,

26 contingent up the running slope and “rise”. (ADAAG Fig. 16.)

27

Plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the length of

28 curb ramps even though their horizontal projection or “run” were as follows: 13’ at store 3079; 11’ 2-

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1 1/2” at store 7571; 10’-6” at store 19744. Indeed, plaintiffs expressly proposed the construction of a new

2 curb cut ramp in the same location at store #19744, but made no reference to converting the curb ramp

3 into a pedestrian ramp with handrails. These omissions constitutes evidence that the length of curb

4 ramps did not deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell

5 stores.

6

16. The ADAAG Does Not Require Tow-Away Signage.

7

Contrary to plaintiffs’ position, the ADAAG does not require any tow-away signage. “The

8 absence of tow-away signs at the parking lot entrance does not violate the ADA.” Sanford v. Roseville

9 Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL 512426, at *2 (E.D. Cal. Feb. 12, 2007) (Levi, J.);

10 see also Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1068 (E.D. Cal. 2006) (Karlton, J.)

11 (refusing to address purported Title 24 violations regarding the tow-away signage as not subject to the

12 ADAAG standards); Jones v. Taco Bell Corp., No. S-04-1030 GEB GGH, 2005 WL 1406098, at *1

13 (E.D. Cal. June 14, 2005) (Burrell, J.) (holding that “the ADAAG does not require tow away signs”);

14 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1149 (S.D. Cal. 2006) (Lorenz, J.) (holding that “there

15 is no federal ADA requirement for tow signs; they are only governed by state law”); Eiden v. Home

16 Depot USA, Inc., No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418, at *14 (E.D. Cal. May 26, 2006)

17 (Karlton, J.) (granting summary judgment to the defendant because the tow away signage claim was

18 only a California Building Code claim). “[T]he court cannot expect defendant to comply with a

19 standard that does not exist.” Chapman v. Pier 1 Imports, No. CIV. S-04-1339 LKK CMK, 2006 WL

20 1686511, at *12 (E.D. Cal. June 19, 2006) (Karlton, J.).

21

Indeed, plaintiffs failed to challenge as noncompliant the number of towing signs at store

22 number 2984 in their 2006 Meet and Confer Charts.

23

Similarly, plaintiffs failed to challenge whether the existing towing signage included all required

24 information at store numbers 3420 in their M&C charts. Indeed, the towing signage at store number

25 3420 expressly included only the City of Hemet’s name and its phone number and no towing company

26

27

1
28

Indeed, plaintiffs failed to provide Taco Bell with any Meet and Confer Chart for store #757 in

2006.

15

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1 information. Yet, plaintiffs remained silent in their M&C chart as to the lack of towing company

2 information.

3

17. The ADAAG Does Not Require that Accessible Parking Be Located Immediately

4

Next to an Accessible Entrance.

5

The ADAAG provides that “[a]ccessible parking spaces serving a particular building shall be

6 located on the shortest accessible route of travel from adjacent parking to an accessible entrance.”

7 (ADAAG 4.6.2.) The location of the “adjacent parking”, however, is not specified. Thus, the “adjacent

8 parking” serving a particular facility could be quite a distance away from the store entrance due to

9 constraints in complying with local building code requirements as to the width of the driveway, which is

10 contrary to plaintiffs’ position.

11

Indeed, plaintiffs failed to challenge as noncompliant the distance between the location of the

12 “adjacent parking” to the accessible store entrance at store number 17984 in their 2006 Meet and Confer

13 Charts. In fact, plaintiffs proposed that the accessible parking spaces at store #19509, which were in the

14 immediate vicinity of the store entrance, be relocated further away from the store entrance across the

15 driveway.

16

18. The ADAAG Does Not Preclude Diagonal Parking Spaces or Access Aisles.

17

Plaintiffs contend that diagonal parking spaces and/or access aisles at certain stores are too short.

18 In particular, plaintiffs contend that: (i) certain diagonal accessible parking spaces are too short because

19 they do not extend for the full length of the adjoining diagonal access aisle (store #863, #2915, #3064,

20 #3096, #3130, #18003); and/or (ii) certain access aisles are too short because they do not extend for the

21 full length of the adjoining diagonal accessible parking space (store #459, #2915, #3064, #3119, #3130,

22 #3145, #18003).

23

As an initial matter, Taco Bell challenges McSwain’s measurement methodology, which is to

24 measure only a portion of the striped van accessible parking space and/or access aisle that is located

25 within a rectangular portion of the combined accessible parking space and access aisle, i.e., “on the

26 square”. For example, McSwain measures perpendicular to the front end of the outside line striping for

27 the access aisle (typically located on the passenger side of the vehicle in the van accessible parking

28 space) that is furthest away from the van accessible parking space, and also measures perpendicular to

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1 the bottom end of the outside line striping for the van accessible parking space. Alternatively, McSwain

2 measures perpendicular to the front end of the outside line striping for the van accessible parking space

3 (or between 30 to 36 inches in front of the wheelstop in the van accessible parking space), and also

4 measures perpendicular to the bottom end of the outside line striping for the access aisle. Under either

5 scenario, McSwain measures a rectangular area overlapping between the van accessible parking space

6 and the access aisle.

7

By measuring the combined rectangular area overlapping between the van accessible parking

8 space and access aisle, such measurements necessarily disregard the full length of the line striping for

9 either the van accessible parking space or access aisle. The ADAAG does not endorse such

10 methodology. If McSwain’s measurement methodology was correct, then diagonal parking spaces

11 would be precluded by the ADAAG because, as a practical matter, in order for the combined area

12 located within the rectangular space measured by McSwain to be a minimum 18 feet length in

13 compliance with California’s standards (as requested by McSwain), the outside line striping for a

14 diagonal van accessible parking space would need to be extremely long (i.e., 24-1/2 feet in length based

15 on a 45 degree angle parking space).

16

The ADAAG, however, does not regulate the usage of diagonal parking spaces in order to

17 comply with the minimum width standards for accessible parking spaces (i.e., 96 inches minimum for

18 accessible spaces including van spaces; 60 inches minimum for access aisles except for van access

19 aisles, which are 96 inches minimum). Even under California’s typically more restrictive standards,

20 diagonal style of parking stalls and an adjoining access aisle are depicted in Fig. 11B-18C with no

21 indication that the van accessible parking space and access aisle are to be measured “on the square” via

22 a combined measurement.

23

Moreover, even assuming that McSwain’s methodology is correct, which is disputed, the

24 ADAAG does not contain any length standard for a van accessible parking space, standard accessible

25 parking space, or access aisle.

26

Indeed, plaintiffs failed to challenge as noncompliant the diagonal parking spaces and access

27 aisles at store numbers 3055 and 18003 in their 2006 Meet and Confer Charts.

28

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1

19. The ADAAG Does Not Provide a Minimum Length Standard for Either an

2

Accessible Parking Space or Access Aisle.

3

McSwain challenges the length of the access aisle at store #3078 as not 18 feet in length.

4

The ADAAG does not provide a minimum length standard for a van accessible or standard

5 accessible parking space or access aisle. (See ADAAG 4.6.3 & Fig. 9.) Indeed, Figure 9 of the

6 ADAAG depicts an overhang of the back end of the depicted vehicle in the accessible parking space

7 beyond the back end of the line striping for the stall.

8

20. The ADAAG Does Not Require that the Access Aisle Be Located on the Passenger

9

Side.

10

McSwain claims that the existence of the access aisle on the driver’s side poses a barrier at store

11 numbers 2961, 3078, 3498, 4622, and 15379. The ADAAG, however, does not require that the access

12 aisle be located on the passenger side. In fact, Figure 9 of the ADAAG depicts a common access aisle

13 that is on the driver’s side, as referenced in ADAAG 4.6.3. (ADAAG 4.6.3 & Fig. 9.)

14

21. The ADAAG Does Not Require Any Pavement Signage In the Van Accessible or

15

Standard Accessible Parking Space.

16

At store #2961, McSwain apparently claims that under the ADA there should be pavement

17 signage depicting an ISA symbol in the back end of the accessible parking space. The ADAAG,

18 however, does not require any pavement surface ISA symbol or ISA logo in the van accessible parking

19 space or standard accessible parking space. (ADAAG 4.6.4.)

20

22. The ADAAG Does Not Require the Words “NO PARKING” Painted in the Access

21

Aisle.

22

The ADAAG does not require the words “NO PARKING” painted in the access aisle for either

23 the van accessible parking space or standard accessible parking space. (See ADAAG 4.6.4 & Fig. 9);

24 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1145 (S.D. Cal. 2006) (Lorenz, J.).

25

23. The ADAAG Does Not Regulate with a Specific Standard the Minimum Height of

26

Parking Signage.

27

The ADAAG does not regulate the minimum height of parking signage via a specific standard.

28

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1

Indeed, plaintiffs proposed installing parking signage with a bottom edge of 36 inches above the

2 ground at store #4633 in their 2006 Meet and Confer Charts.

3

24. The ADAAG Does Not Preclude the Accessible Route from an Accessible Parking

4

Space to Travel Behind Another Person’s Parked Vehicle.

5

McSwain challenges the accessible route from the accessible parking space to the store entrance

6 at store #1827, #2297, and #4622 because it requires traveling behind another person’s parked vehicle.

7 The ADAAG, however, does not preclude the accessible route from an accessible parking space not to

8 traverse behind another vehicle nor does it require a separate path of travel outside of the drive aisle

9 used by motor vehicles.

10

25. Plaintiffs Contradict Themselves By Seeking to Use Accessible Seating From the

11

Narrow End at Store #137.

12

At store #137, the trash can does not obstruct access to the outdoor accessible table because the

13 accessible route to the table does not overlap with the trash can at issue. The accessible route to the

14 outdoor accessible table is at least 36 inches wide and only a 90 degree turn is contemplated. Thus, the

15 trash can does not deprive any wheelchair-bound customer of the “full and equal” enjoyment of the

16 services at the store at issue. D’Lil v. Stardust Vacation Club, No. CIV-S-00-1496 DFL PAN, 2001 WL

17 1825832, at *5 (E.D. Cal. Dec. 21, 2001) (Levi, J.) (“[A]t trial, [plaintiff] must still prove that [the room

18 in question] contained actual barriers that hindered her access to the room; she cannot rely solely on the

19 [resort’s] deviation from ADAAG to establish her Title III claim.”) (emphasis added).

20

In addition, the tabletop under McSwain’s proposed approach is the narrow end, which is less

21 than 30 inches wide. McSwain has consistently taken the position elsewhere that an accessible tabletop

22 must be at least 30 inches wide in order to comply with ADAAG 4.32.3. Thus, McSwain’s position

23 contradicts his position elsewhere. In other words, McSwain’s apparent proposal would trigger

24 expanding the concrete walkway in front of the accessible table, which would, in turn, negatively impact

25 the parking space adjacent to the concrete walkway and driveway aisle as well. Plaintiffs have failed to

26 meet their prima facie burden of showing that the removal of the alleged barriers identified by either

27 plaintiffs and/or the Special Master at the entrance at issue is readily achievable. Access Now, Inc. v.

28 South Florida Stadium Corp., 161 F. Supp. 2d 1357, 1368 (S.D. Fla. 2001) (Moore, J.) (“A finding of

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1 noncompliance [with the ADAAG] is not tantamount to finding an ADA violation; plaintiff carries the

2 additional burden of showing that removal of the barriers is readily achievable.”).

3

26. The ADAAG Does Not Require that an Accessible Route Connect Two Store

4

Entrances.

5

The ADAAG provides, “At least one accessible route complying with 4.3 shall be provided

6 within the boundary of the site from public transportation stops, accessible parking spaces, passenger

7 loading zones if provided, and public streets or sidewalks, to an accessible building entrance.”

8 (ADAAG 4.1.2(1).) In addition, the ADAAG provides, “At least one accessible route complying with

9 4.3 shall connect accessible buildings, accessibility facilities, accessible elements, and accessible spaces

10 that are on the same site.” (ADAAG 4.1.2(2).) To the extent that plaintiffs are relying upon ADAAG

11 4.1.2(2) for the proposition that an exterior accessible route must connect two accessible entrances, the

12 ADAAG does not make that statement. Indeed, plaintiffs ignore that there is nothing in the ADAAG

13 that prevents Taco Bell from complying with 4.1.2(2) by ensuring an interior accessible route

14 connecting two accessible building entrances. Plaintiffs’ experts have failed to challenge any interior

15 accessible routes connecting two accessible building entrances.

16

Indeed, plaintiffs failed to challenge as noncompliant the lack of an exterior accessible route

17 connecting two accessible entrances at store number 21295 in their 2006 Meet and Confer Charts.

18

27. The ADAAG Does Not Necessarily Require Multiple Accessible Entrances.

19

Although plaintiffs assume that multiple accessible entrances must be provided at each and every

20 Taco Bell store, such assumption is wrong. The ADAAG provides that in “new construction,” two

21 separate requirements shall both be met:

22

(i) “At least 50% of all public entrances . . . must be accessible.”

23

(ii) “Accessible entrances must be provided in a number at least equivalent to the number of

24 exits required by the applicable building/fire codes.” (ADAAG 4.1.3(8)(a)(i)-(ii).) This begs the

25 question as to the number of exits required by the applicable building/fire codes. Plaintiffs have made

26 no attempt to demonstrate via their discovery responses in this action that Taco Bell has failed to satisfy

27 both requirements. In particular, plaintiffs have failed to demonstrate the number of required exits at a

28 particular store based upon the particular building/fire code that is applicable to that particular store.

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1

28. Taco Bell Has Complied with the Special Master’s Recommendation to Install

2

Directional Signage at Certain Stores in Lieu of More Extensive Modifications.

3

Taco Bell has complied with the Special Master’s recommendation to install directional signage

4 directing disabled customers to use the accessible west entrance in lieu of the north entrance at store

5 number 5523.

6

29. Secondary Entrances

7

Plaintiffs failed to challenge as noncompliant secondary entrances at store number 2423 in their

8 2006 Meet and Confer Charts. The apparent reason why plaintiffs failed to challenge such secondary

9 entrances is that plaintiffs determined that the alleged barriers did not deprive plaintiffs of “full and

10 equal enjoyment” of the services provided at the Taco Bell stores via primary entrances or because the

11 necessary modification work would not have been readily achievable.

12

Indeed, the Special Master has proposed directional signage as the solution at numerous stores

13 including, but not limited to, store numbers 2918, 3145, 4558, and 17572.

14

In several instances, plaintiffs were silent as to the Special Master’s proposed solution to install

15 directional signage to the primary entrance of the facility (e.g., store numbers 3027, 4622, 5223, 15379,

16 15570). Indeed, plaintiffs expressly proposed the installation of directional signage at store numbers

17 2861, 2930, 3064, and 16370. At store number 2861, plaintiffs literally waited until their December 17,

18 2008 discovery response before changing their mind as to directional signage as the appropriate

19 solution. This omission constitutes evidence that such secondary entrance did not deprive plaintiffs of

20 “full and equal enjoyment” of the services provided at the Taco Bell stores.

21

30. Plaintiffs No Longer Challenge Directional Signage to the Accessible Entrance as a

22

Solution.

23

Although plaintiffs initially challenged the use of directional signage at certain Taco Bell stores

24 via their Meet and Confer Charts, plaintiffs and their expert both now agree that directional signage to

25 an accessible entrance is an acceptable solution at certain stores. For example, at store #3948, the single

26 door north entrance has a noncompliant landing slope, which is why Taco Bell has designated this

27 entrance as inaccessible and installed signage directing disabled customers to use the accessible double

28 door west entrance. Plaintiffs, in their May 11, 2009 discovery response as to store #3948, and their

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1 expert, Eric McSwain, in his May 1, 2009 declaration, failed to challenge the directional signage

2 solution implemented by Taco Bell in 2007.

3

31. The ADAAG Only Requires One Leaf to Be Accessible at a Double-Leaf Doorway

4

Intended to Be Accessible.

5

ADAAG 4.13.4 provides that at a double-leaf doorway, only one leaf shall be accessible. Thus,

6 the fact that one leaf is partially obstructed by the high chair at store #18901 is irrelevant. It is

7 undisputed that the left leaf (outside looking into the store) was not obstructed by the high chair at issue.

8

32. The ADAAG Does Not Require ISA Signage at All Entrances Under All

9

Circumstances.

10

The ADAAG provides accessible entrances shall be identified with the International Symbol of

11 Accessibility (“ISA”) “when not all [entrances] are accessible.” (ADAAG 4.1.2(7)(c).) “Inaccessible

12 entrances shall have directional signage to indicate the route to the nearest accessible entrance . . . .” Id.

13

Thus, contrary to plaintiffs’ position, not all accessible entrances must be identified with the ISA

14 under the ADAAG. Indeed, plaintiffs failed to challenge as noncompliant the lack of an ISA decal on

15 the accessible door even though the door was intended to be accessible at store numbers 5223 and 15570

16 in their 2006 Meet and Confer Charts.

17

33. The ADAAG Does Not Regulate Exterior Door Opening Force.

18

The ADAAG does not regulate exterior door opening force. (See ADAAG 4.13.11) (“exterior

19 hinged doors: (Reserved)”); Chapman v. Pier 1 Imports, No. CIV. S-04-1339 LKK CMK, 2006 WL

20 1686511, at *11 (E.D. Cal. June 19, 2006) (Karlton, J.) (granting summary judgment to the defendant as

21 to the entrance door opening force issue because it was only an issue under the California Building

22 Code) (“Plaintiff fails to cite to any section of ADAAG.”); Independent Living Resources v. Oregon

23 Arena Corp., 1 F. Supp. 2d 1124, 1155 (D. Or. 1998) (holding that exterior doors might justifying a

24 higher maximum opening force requirement, but there is no force standard for exterior doors). This is

25 not surprising given the varying atmospheric conditions such as wind that affect the measurement of

26 force at an exterior door. Indeed, McSwain admitted that his measurement of door opening force at

27 store #1034 was affected by “wind gusts”. (McSwain decl. Ex. 3 at 22.)

28

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1

In United States v. National Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001) (Young,

2 C.J.), the district court rejecting the U.S. Attorney General’s attempt to rely upon the general provisions

3 in the DOJ regulations in lieu of specific provisions. “[T]he Court concludes that the specific provisions

4 of ADAAG control over the general provisions set forth in 28 C.F.R. sections 36.201-203. Id. at 259.

5 “Compliance with a specific regulation must mean something; the Court rejects the Attorney General’s

6 attempt to render such compliance entirely meaningless by opening it to challenge under general

7 regulatory provisions.” Id. at 260.

8

34. Plaintiffs Ignored a 9.5 Pound Door Opening Force Measurement in M&C Charts.

9

The ADAAG does not regulate the door opening force at an exterior entrance door. (ADAAG

10 4.13.11.) Indeed, the ADAAG indicates that the standard has been expressly “Reserved”. Id.

11

Plaintiffs’ counsel proposed a maximum 9-1/2 pounds as an “acceptable measurement” in an

12 email to defense counsel sent and received on February 15, 2006.

13

Plaintiffs failed to challenge as noncompliant the door opening force at an exterior entrance door

14 though the door opening force was recorded at 9.5 pounds at store number 20052 in their 2006 Meet and

15 Confer Charts. Similarly, the Special Master proposed an 8-1/2 pound solution for exterior door

16 opening force at many stores, which plaintiffs largely ignored. These omissions constitutes evidence

17 that the door opening force at these stores did not deprive plaintiffs of “full and equal enjoyment” of the

18 services provided at the Taco Bell stores.

19

35. The ADAAG Does Not Require At Least 24 Inches of Pull Side Width Maneuvering

20

Clearance Beyond the Strike Jamb at Exterior Doors.

21

Although McSwain claims that the door maneuvering clearance width for an exterior door on the

22 pull side of an exterior door must be at least 24 inches beyond the strike jamb, the ADAAG provides an

23 18 inches minimum standard, based on a forward approach. (ADAAG Fig. 25(a).)

24

Thus, McSwain’s measurement of 21-3/4 inches width beyond the strike jamb on the pull side of

25 the entrance door at store #2241 exceeds the 18 inches minimum standard set forth in the ADAAG.

26 (ADAAG Fig. 25(a).)

27

36. The ADAAG Does Not Require Interior Warning Signage at an Inaccessible Exit

28

Door.

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1

Although plaintiffs contend that the ADAAG requires interior warning signage at an inaccessible

2 exit door, the ADAAG does not require any signage at an inaccessible exit. Thus, this issue is only

3 subject to Title 24. Plaintiffs rely exclusively upon section 1007.7 of Title 24, which became effective

4 as of January 1, 2008, but that section, which addresses signage identifying the location of “accessible

5 means of egress”, cannot apply to the store in question because “accessible means of egress” are not

6 required at “alterations to existing buildings”. It is undisputed that the stores at issue constituted an

7 existing building as of January 1, 2008.

8

37. Thresholds at Doorways

9

McSwain challenges the certain alleged changes in level at or near thresholds at doorways at

10 stores such as store #176.

11

At store #176, Taco Bell’s photographs depict little to no change in level at all. (TBGT238319,

12 TBGT238242.) In addition, Taco Bell challenges McSwain’s measurement methodology because the

13 camera angle of his photo purporting to depict the height measurement of the change in level at issue is

14 clearly elevated. (See EM01077.) Thus, McSwain’s height measurement is distorted. McSwain has

15 provided no explanation in his May 1, 2009 declaration as to why he did not use the plastic tool for

16 measuring door threshold height distributed by Evan Terry Associates (retained expert James Terry’s

17 company) that McSwain has used to survey numerous other Taco Bell stores whenever a change in level

18 has arisen. The Court can and should draw a negative inference that had such measurement tool been

19 used, the height measurement would have been less than McSwain’s measurement.

20

Moreover, Taco Bell’s policy of assisting disabled customers, including signage reflecting such

21 policy, constitutes a reasonable modification of its self-service policy. Hubbard v. 7-Eleven, Inc., 433 F.

22 Supp. 2d 1134, 1148 (S.D. Cal. 2006) (Lorenz, J.) (holding that coffee pots at the coffee counter and

23 other merchandise beyond reach ranges for disabled customers did not constitute an ADA violation

24 because of the store’s policy of assisting customers including customer service signage); Antoninetti v.

25 Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc), 2008 WL 111052, at *21 (S.D. Cal. Jan. 10,

26 2008) (Jones, J.) (“Policies and practices that provide substantially equivalent or greater access to and

27 usability of a facility constitute a form of equivalent facilitation.”).

28

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1

The customer service solution implemented by Taco Bell does not deprive any wheelchair-bound

2 customer of the “full and equal” enjoyment of the services at the store at issue. D’Lil v. Stardust

3 Vacation Club, No. CIV-S-00-1496 DFL PAN, 2001 WL 1825832, at *5 (E.D. Cal. Dec. 21, 2001)

4 (Levi, J.) (“[A]t trial, [plaintiff] must still prove that [the room in question] contained actual barriers that

5 hindered her access to the room; she cannot rely solely on the [resort’s] deviation from ADAAG to

6 establish her Title III claim.”) (emphasis added).

7

Moreover, plaintiffs failed to challenge as noncompliant thresholds at doorways that were ½

8 inch, which existed at store number 3055 in their 2006 Meet and Confer Charts. This omission

9 constitutes evidence that such thresholds did not deprive plaintiffs of “full and equal enjoyment” of the

10 services provided at the Taco Bell stores.

11

38. The ADAAG Does Not Contain Any Enforceable Standard as to Floor Mats.

12

In Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 2006 WL 1991450 (E.D. Cal. July

13 14, 2006) (Karlton, J.), the district court held that door mats are not a barrier covered by the ADAAG.

14 Id. at 1073. Similarly, in Wilson v. Norbreck, LLC, No. 04-cv-00690-DFL-JFM, 2005 WL 3439714, at

15 *4 (E.D. Cal. Dec. 14, 2005) (Levi, J.), the district court held that the ADA does not apply to floor mats.

16 Id. at *5; see also White v. Divine Investments, Inc., No. CIV. S-04-0206 FCD/DA, 2005 WL 2491543,

17 at *6 (E.D. Cal. Oct. 7, 2005) (Damrell, J.) (holding that floor mats are not “carpets” regulated by

18 ADAAG 4.5.3), aff’d mem, 286 Fed. Appx. 344, 2008 U.S. App. LEXIS 12221 (9th Cir. June 5, 2008).

19

Most recently, in Doran v. 7-Eleven Inc., No. SACV 04-1125 JVS (ANx), slip op. (C.D. Cal.

20 Dec. 22, 2008) (Selna, J.), the district court held that floor mats are “furnishings” that are not covered by

21 the ADAAG. Id. at 6. The ADAAG Manual provides, “Furniture, furnishings, and equipment not fixed

22 to building construction are not scoped or specified in ADAAG . . . .” (ADAAG Manual at 7.)

23

39. High Chairs Are Full Service Items Requiring Customer Service for a Disabled

24

Customer to Use.

25

McSwain contends in his declaration that the high chairs at store #3064 are inaccessible because

26 they are in an “alcove” between a standard dining room table and an interior wall in the dining room.

27 McSwain assumes that a high chair is a self-service item for the mobility-impaired. McSwain’s

28 assumption is mistaken. There are three types of high chairs currently used at Taco Bell’s stores. One

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1 style is wooden. The other two styles are plastic. Depending on the style, the weight of a high chair

2 ranges between 17-20 pounds. Plaintiffs experts have failed to proffer any expert testimony indicating

3 that the average mobility-impaired patron can be expected to use high chairs without assistance. Thus,

4 the high chair is a full service item for the mobility-impaired that requires customer service from a Taco

5 Bell employee.

6

40. The Advertising Stand at Store #3904 Does Not Deprive Access Because the

7

ADAAG Permits a Vertical Change in Level of Up to ¼ Inch in the Accessible

8

Route.

9

At store 3904, plaintiffs challenge the advertising stand as an obstruction to the accessible route

10 to the service counter. The ADAAG provides that an accessible route can be 32 inches wide for 24

11 inches of depth. (ADAAG 4.3.3, 4.13.5, Fig. 24(e).) The base of the advertising stand at issue created a

12 change in level of ¼ inch or less (see EMP033503), which is compliant under the ADAAG. (ADAAG

13 Fig. 7(c).) Thus, the change in level due to the base of the advertising stand did not deprive any

14 disabled customer of the full and equal enjoyment of Taco Bell’s services.

15

41. The ADAAG Provides that Only One Service Counter with a Cash Register Should

16

Be Accessible.

17

The ADAAG provides a 36 inches AFF maximum height for service counters with cash

18 registers, for a 36 inches length. (ADAAG 7.2(1).) Only one service counter with a cash register is

19 required to meet this standard. Plaintiffs’ contrary position ignores ADAAG 7.2(1). Indeed, the Special

20 Master treated the ADAAG’s counter space standard as applicable to a service counter containing two

21 cash registers and measured the counter space for only one of the two cash registers at the single, long

22 counter at store #955. Plaintiffs failed to challenge as noncompliant the service counter space even

23 though the clear space was less than 36 inches length at store number 955 in their 2006 Meet and

24 Confer Charts.

25

Indeed, although plaintiffs raised the accessibility of the secondary cash register at store #4466,

26 plaintiffs’ expert, Eric McSwain, omitted the issue in his May 1, 2009 expert report.

27

42. The Alleged Obstructions on Accessible Service Counters Did Not Deprive Plaintiffs

28

of Full and Equal Enjoyment of the Services Offered By Taco Bell.

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1

Plaintiffs challenge the length of accessible counters at store numbers 991, 2241, 2915, 2933,

2 3208, 3209, 3390, 3471, 4311, 21453, 22691, and 22871. The ADAAG provides a 36 inches minimum

3 length standard for service counters with cash registers. (ADAAG 7.2(1).) Only one service counter

4 with a cash register is required to meet this standard. Given that the advertising placards, donation

5 banks, napkin dispensers, and drink cups surveyed by McSwain did not pose an obstruction because

6 they were lightweight, portable, and easily moved during a transaction, an accessible service counter at

7 these stores that had at least 36 inches length of clear space existed at the time of McSwain’s surveys.

8

43. The ADAAG Provides a 36” AFF Maximum Height for Service Counters with Cash

9

Registers.

10

McSwain noted that the height of service counters at store numbers 283, 757, 2861, 3055, 3070,

11 3078, 3184, 3579, 4284, 4704, 5138, 5223, 5512, 9414, 9489, 16276, 16370, 16812, 17224, and 20310

12 exceeded 34 inches AFF. This is irrelevant to the ADA.

13

The ADAAG provides a 36 inch AFF maximum height for service counters with cash registers.

14 (ADAAG 7.2.) Indeed, the Special Master expressly noted that “ADAAG allows 36” high countertops”

15 in his Pilot Program Survey Report for store #2423. The Special Master indicated that the 36 inches

16 AFF service counter height was compliant at store #16812. Id. The Special Master also indicated that

17 the 35-1/2 inches AFF service counter height was compliant at store #20310.

18

The Special Master also noted in his Pilot Program Survey Report for store #4704 in regards to a

19 service counter that he measured at 36-5/8 inches AFF, “A countertop that is 5/8” higher than the code

20 allows is not an architectural barrier. In its existing configuration[,] the countertop is usable by disabled

21 and non-disabled customers.”

22

This is why modifications were not made as to the existing service counter height at store

23 numbers 3184, 4284, 4704.

24

Plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the height of

25 service counters even though they exceeded 34” AFF according to the Special Master as follows: 37

26 inches AFF at store number 2423; between 37 and 36-3/4 inches AFF at store number 2861; 36-5/8

27 inches AFF at store number 4704; between 36-3/8 and 36-1/4 inches AFF at store number 5138;

28 between 36-1/2 to 36-1/4 inches AFF at store numbers 4466; between 36-1/4 to 36 inches AFF at store

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1 number 9489; 36 inches AFF at store numbers 283, 3055, 3078, 3579, 4284, 9414, 16276; between 36

2 inches to 35-3/4 inches AFF at store number 16370; 35-7/8 inches at store number 3070; 35-5/8 inches 3 at store number 5512.2

4

These omissions constitutes evidence that the height of such service counters did not deprive

5 plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

6

At store #5138, the existing service counter complies with the 36 inches AFF ADAAG standard

7 for service counters with cash registers. (ADAAG 7.2(1).) McSwain’s two measurements range

8 between exactly 36 inches AFF and 36-3/8 inches. The location of McSwain’s 36-3/8 inches

9 measurement, depicted in EMP021394, is flawed because that measurement was taken on the corner of

10 the service counter that is not the location of the accessible counter. The second measurement of 36

11 inches AFF, depicted in EMP021393, is directly across from the cash register next to the accessible

12 service counter with a 36 inches length distance.

13

44. The So-Called “Low Shelves” In Front of the Remodeled Service Counters Protrude

14

Less Than Ten Inches and Permit a Side Approach to the Service Counter.

15

At store number 22691, plaintiffs challenge the usability of the service counters at remodeled

16 stores insofar as they contain a so-called low shelf in front of the accessible service counter, which is

17 intended merely for aesthetics and not actual usage by any customer. Plaintiffs ignore that the shelf has

18 a depth of less than 10 inches and so it does not preclude a side reach to the service counter via a parallel

19 approach. (ADAAG Fig. 6(a).) The ADAAG does not require a forward approach to a service counter.

20

45. The ADAAG Does Not Require a Forward Reach to Use a Drink Dispenser: Floor

21

Sinks Do Not Affect the Usability of Drink Dispensers.

22

Although plaintiffs contend that certain floor sinks pose an obstruction to the use of the drink

23 dispenser at store numbers 1687, 3007, 3053, 3129, 5138, 5223, 15362, 15570, 16140, 16276, 16336,

24 16381, 17363, 17471, 17576, 17751, 18112, 19298, 19498, 20052, 20180, 20578, 21000, and 21343,

25 plaintiffs are wrong. As an initial matter, plaintiffs’ analysis is premised exclusively upon a forward

26

27
2
28

Taco Bell voluntarily modified the service counter height at stores #2423, #4466.

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1 approach to the drink dispenser. Plaintiffs ignore that a side reach is feasible at each of the stores in

2 which the floor sinks are at issue, and such side reach does not overlap with any floor sink.

3

Even under a forward reach, there is nothing to indicate that the two small front wheels of a

4 standard wheelchair would be obstructed by the floor sink at issue. A standard wheelchair’s footrest is

5 elevated, (ADAAG Fig. 5), and up to 6 inches of clear floor space can count towards toe clearance,

6 (ADAAG Fig. 31), which necessarily means that the front wheels are no closer than 6 inches from the

7 front end of the footrest. Indeed, even under a forward approach, plaintiffs failed to challenge as

8 noncompliant the identical floor sinks at store numbers 1687 and 21343 in their Meet and Confer Charts

9 even though the Special Master surveyed and photographed the identical floor sinks underneath

10 identical drink tables that continue to exist unmodified to date. This omission constitutes evidence that

11 such floor sinks did not deprive plaintiffs of “full and equal enjoyment” of the services provided at the

12 Taco Bell stores.

13

In addition, plaintiffs ignore that section 114193 of the California Retail Food Code requires that

14 floor sinks must be readily accessible for inspection and cleaning. Plaintiffs’ relocation request would

15 “fundamentally alter” the services and accommodations provided by Taco Bell by causing the floor sink

16 to not be accessible for inspection and cleaning. 42 U.S.C. § 12182(b)(2)(A)(ii).

17

46. The ADAAG Allows a 54 Inch Side Reach Maximum Over “Obstructions”, and the

18

ADAAG’s Sliding Scale of Side Reach Ranges for ATMs Applies to Non-ATM

19

Elements.

20

Although plaintiffs contend that various elements such as the pickup counter, drink table, and

21 condiment counter all pose an obstruction that is subject to an absolute 34” AFF maximum standard,

22 which is exceeded at certain counters, plaintiffs are wrong. ADAAG Fig. 54 clearly depicts a 54 inch

23 side reach maximum over items that clearly exceed 34 inches AFF. ADAAG Fig. 54 is expressly cited

24 in ADAAG 5.6. Indeed, the Special Master’s proposed solution for relocating items within an

25 accessible side reach made no mention of any 34 inch AFF maximum height for any obstruction posed

26 by the leading edge of a pickup counter, drink table, or condiment counter.

27

In addition, side reach ranges set forth in ADAAG § 4.34.3(2)(b) are applicable to non-ATM

28 elements. In particular, plaintiffs expressly cited and relied upon the reach range table set forth in

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1 ADAAG 4.34.3(2)(b) in their M&C charts as to non-ATM elements at store numbers #4027, #4704,

2 #5138, and #19591.

3

Plaintiffs’ contrary interpretation leads to absurd results. For example, although plaintiffs

4 contend in numerous instances that the drink dispenser table itself poses an obstruction that is subject to

5 an absolute 34” AFF maximum standard, which is exceeded by the so-called “tray slides” or parallel

6 raised edges, it is beyond dispute that the raised edges are well beyond the front edge of the drink table.

7 Thus, unless a customer were to reach horizontally at a height of approximately 34 inches AFF, a

8 customer would not come into contact with such raised edges. Given Fig. 54, plaintiffs’ interpretation

9 of how customers are expected to exercise their reach ranges is wrong.

10

(a) The Pickup Counter Is Not an “Obstruction” to a Dispenser That Is Subject

11

to a 34” AFF Maximum Standard.

12

Indeed, plaintiffs failed to challenge as noncompliant the height of the pick up counter at store

13 numbers 1034 and 3089 in their Meet and Confer Charts even though the Special Master measured the

14 height as exceeding 34 inches AFF.

15

Similarly, plaintiffs failed to challenge as noncompliant the height of the pick up counter at store

16 number 3078 in their Meet and Confer Chart even though the Special Master measured the height as

17 exceeding 34 inches AFF.

18

(b) The Drink Dispenser Table Is Not an “Obstruction” to a Dispenser That Is

19

Subject to a 34” AFF Maximum Standard.

20

Indeed, plaintiffs fail to challenge as noncompliant the height of the so-called tray slides on the

21 drink table at store number 20190 even though their retained expert, Eric McSwain, claims

22 inconsistently that the counter height is 34-1/4” AFF and elsewhere claims the height is 34-1/2” AFF.

23 To make matters worse, the Special Master measured the identical so-called tray slide as a compliant

24 34” AFF. If plaintiffs and their retained expert genuinely believe that the raised edges on the drink table

25 pose an obstruction, then they should have raised it in connection with element 339. Their failure to do

26 so is telling.

27

28

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1

Similarly, plaintiffs failed to challenge as noncompliant the height of the so-called tray slides on

2 the drink table at store number 18901 in their Meet and Confer Chart even though the Special Master

3 measured the height as exceeding 34 inches AFF.

4

The Special Master recorded the height of the so-called tray slide at store #15362 as compliant

5 even though it was 36-1/4 inches AFF.

6

Plaintiffs also failed to challenge as noncompliant tri-level drink lid dispensers contained on a

7 drink table requiring a reach of approximately 48” above the floor with a lateral reach that exceeded 10

8 inches, which existed at store number 2984 in their 2006 Meet and Confer Charts. This omission

9 constitutes evidence that such counters did not deprive plaintiffs of “full and equal enjoyment” of the

10 services provided at the Taco Bell stores.

11

(c) The Condiment Counter Is Not an “Obstruction” to a Dispenser That Is

12

Subject to a 34” AFF Maximum Standard.

13

Indeed, plaintiffs failed to challenge as noncompliant dispensers contained on two-tiered

14 condiment counters that were approximately 42-1/4 inches AFF that existed at store numbers 1934 and

15 5019 and also failed to challenge dispensers on single-level condiment counters that were approximately

16 40-1/2 inches AFF that existed at store numbers 2423, 2861, 2984, 3184, 4622, 5513, 5539, 5641,

17 15614, 16336, 16909, 17243 in their 2006 Meet and Confer Charts. Plaintiffs also failed to challenge

18 dispensers on single-level condiment counters that were approximately 34-3/8 inches AFF that existed

19 at store number 15625 in their 2006 Meet and Confer Charts. The apparent reason why plaintiffs failed

20 to challenge such dispensers is that plaintiffs were previously amenable to relying upon the ATM reach

21 range set forth in ADAAG § 4.34.3(2)(b). In particular, with respect to the drink dispenser at store

22 #4027, plaintiffs stated in their Meet and Confer Chart, “See DOJ Stds. § 4.34.3(2)(b). At 49½” height,

23 18” is the maximum lateral reach.” In other words, plaintiffs freely cited and relied upon the reach

24 range table set forth in ADAAG 4.34.3(2)(b) regardless of the fact that it expressly relates to reach

25 ranges to use an ATM machine.

26

This omission constitutes evidence that such condiment counters did not deprive plaintiffs of

27 “full and equal enjoyment” of the services provided at the Taco Bell stores.

28

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1

Indeed, plaintiffs’ Meet and Confer Chart for store #5259 proposes that drink lids be relocated

2 on top of the condiment counter despite its height above 34 inches AFF.

3

47. Plaintiffs’ Experts’ Measurement of Reach Ranges at Tableware and Condiment

4

Dispensers Is Flawed.

5

Plaintiffs’ expert, Eric McSwain, has measured various tableware and condiment dispensers to

6 the back end of the dispenser including, but not limited to, bulk drink carriers. Taco Bell challenges

7 such measurement methodology. Indeed, the Special Master has repeatedly made centerline

8 measurements of lateral reach to tableware and condiment dispensers. Indeed, McSwain’s measurement

9 methodology at store #21453 is worth noting given that McSwain’s lateral reach measurement was not

10 to the back end of the drink carrier, but rather only to the front end as depicted in his photos Bates-

11 labeled as EM14496-EM14497. Thus, McSwain’s measurement methodology is flawed.

12

In addition, in measuring the height of reach ranges relating to the drink tables, McSwain

13 measured to the top of the parallel ridges on top of the drink table, which is flawed because the

14 dispensers or self-service items at issue without dispensers (e.g., drink carriers) were not placed on top

15 of the parallel ridges. Thus, McSwain’s height measurements are flawed because they overstate the

16 actual height.

17

48. Plaintiffs’ Apparent Position that Duplicate Dispensers Dispensing the Same Item

18

Need to Be Within Reach Ranges Is Flawed.

19

Plaintiffs’ expert noted that a job applications dispenser was provided within a “compliant

20 reach” on the main service counter at store #2918, but nevertheless measured a wall-mounted job

21 applications dispenser as noncompliant. (McSwain decl. Ex. 3 at 56.) To the extent that plaintiffs imply

22 that each and every control or dispenser throughout a Taco Bell store must be within reach ranges even

23 if they are duplicative, plaintiffs’ position is wrong. See Harris v. Costco Wholesale Corp., 389 F.

24 Supp. 2d 1244, 1251 (S.D. Cal. 2005) (Lorenz, J.) (holding that there was no ADA violation regarding

25 toilet paper dispenser distance to rear wall because one of two dispensers satisfied the 36 inch maximum

26 distance); see also (ADAAG 4.23.7) (“If controls, dispensers, receptacles, or other equipment are

27 provided, then at least one of each shall be on an accessible route and shall comply with 4.27.”).

28

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1

49. Many Site Inspections Occurred Before Taco Bell’s Stores Opened to the Public,

2

Depriving Taco Bell of the Opportunity to Organize and Get the Stores Ready for

3

Operations.

4

Many of McSwain’s site inspections occurred before stores were open for business to the general

5 public and had restocked various condiment bins and other items. Thus, McSwain’s inspections are

6 misleading to the extent that he documented store conditions before the store was open for business.

7

50. The Drink Dispenser Table Is Not Subject to a 34” AFF Maximum Standard

8

Because It Is Not a “Food” Service Line.

9

ADAAG 5.5 provides, “Tray slides shall be mounted no higher than 34 in (865 mm) above the

10 floor (see Fig. 53).” ADAAG 5.5 expressly pertains to “Food service lines” only and does not apply to

11 drink dispensers. Rather, self-service beverage dispensing devices are subject to ADAAG 5.6, which

12 depicts Fig. 54. Fig. 54 depicts a 54 inch side reach maximum over items that clearly exceed 34 inches

13 AFF. Thus, plaintiffs’ assertion that a drink table cannot exceed 34 inches AFF is wrong.

14

Plaintiffs’ request in their M&C charts to “[a]djust legs of the drink dispenser unit” reflects

15 plaintiffs’ lack of awareness that Taco Bell is compelled by California law to ensure 6 inches of

16 clearance underneath the legs of the drink dispenser unit. The California Retail Food Code provides,

17 “[F]loor-mounted equipment that is not easily movable shall be sealed to the floor or elevated on legs

18 that provide at least a six-inch clearance between the floor and the equipment.” (Cal. Retail Food Code

19 § 114169.)

20

51. Plaintiffs Cannot Contradict Their Prior Request for Additional Accessible Seating

21

at a Particular Area in the Dining Room.

22

Plaintiffs’ expert currently seeks to contradict the location of additional accessible seating

23 previously installed at the request of plaintiffs via their M&C chart at store numbers 18808 because it is

24 purportedly not dispersed. Insofar as plaintiffs affirmatively requested the location of the accessible

25 seating that was subsequently installed, this circumstance constitutes evidence that the location of such

26 new accessible seating did not deprive plaintiffs of “full and equal enjoyment” of the services provided

27 at the Taco Bell stores.

28

52. The ADAAG Does Not Require that Accessible Seating Accommodate Companions.

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1

Plaintiffs’ expert complains about the lack of four seat tables at store numbers 4633 and 4799.

2 Plaintiffs’ expert acknowledges that there are two seat accessible tables at these two stores.

3

There is no authority requiring that accessible seating have four-seat tables or frankly any

4 minimum number of companions at the accessible table. In fact, the case law indicates that companion

5 seating is not required. In Sanford v. Del Taco, Inc., No. CIV-S-04-1337-DFL/CMK, 2006 WL

6 1310318, at *2 (E.D. Cal. May 12, 2006) (Levi, J.), the district court held that tables do not have to be

7 large enough to accommodate a companion at the very same table at which a disabled patron is seated.

8 Id.

9

53. The ADAAG Does Not Require Counter or Booth Seating to Be Accessible.

10

McSwain challenges the absence of accessible seating at the dining counter at store #459.

11

The Special Master’s Interim Survey Report identified at store #459 a total of 26 seats and 2

12 designated seating positions (both of which have been subsequently modified), which is 7.7% (i.e.,

13 above the 5% min. standard set forth in the ADAAG. (ADAAG 5.1.) Even assuming that 2 seats were

14 added (there are 4 counter seats currently depicted by McSwain whereas the Special Master depicted

15 only 2 counter seats), that would still be 7.1%. McSwain’s implicit argument that the counter seating

16 constitutes a different area than the fixed tables is without merit. Wilson v. Norbreck, LLC, No. 04-cv-

17 00690-DFL-JFM, 2005 WL 3439714, at *6 (E.D. Cal. Dec. 14, 2005) (Levi, J.) (holding that booths in a

18 cocktail lounge sitting on an inaccessible raised platform are not a “dining area”, but rather the cocktail

19 lounge as a whole is a dining area)(holding that because the plaintiff failed to show that the cocktail

20 lounge is itself inaccessible, there is no violation); Sanford v. Del Taco, Inc., No. 04-cv-2154-GEB-

21 EFB, 2006 WL 2669351, at *3 (E.D. Cal. Sept. 18, 2006) (Burrell, J.) (“[T]here is no requirement that

22 both table and booth seating be accessible as Plaintiff asserts.”).

23

54. McSwain Has Failed to Propose Any Specific Location for the Accessible Seating in

24

Order to Be “Well” Dispersed.

25

McSwain claims that the accessible tables at store #18003 are not “well dispersed.” ADAAG

26 5.1 provides, “In new construction, and where practicable in alterations, accessible fixed tables (or

27 counters) shall be distributed throughout the space or facility.”

28

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1

McSwain, however, fails to propose any specific location for the new accessible table that was

2 previously installed in response to the Special Master’s proposed location at store #18003 and #18808.

3 In fact, at store #18808, Taco Bell installed the third accessible table in precisely the location requested

4 by both the Special Master in his Interim Survey Report and plaintiffs in their M&C chart.

5

55. The ADAAG Does Not Regulate Emergency Exits in Existing Facilities.

6

McSwain incorrectly assumes that the emergency exits at stores #2961 and #2968 must be

7 accessible. ADAAG 4.1.3(9) provides, “In buildings or facilities, or portions of buildings or facilities,

8 required to be accessible, accessible means of egress shall be provided in the same number as required

9 for exits by local building/life safety regulations.” ADAAG 4.1.6(g), however, provides, “In alterations,

10 the requirements of 4.1.3(9) . . . do not apply.” Thus, ADAAG 4.1.3(9), which applies to “new

11 construction,” does not apply to older facilities like the store at issue, which the parties stipulated as

12 built on July 1, 1986. (See Pls.' M&C Cht at 1.) Indeed, the Special Master did not even address the

13 emergency exit in his Interim Survey Report and plaintiffs omitted it in their 2006 Meet and Confer

14 Chart.

15

56. The ADAAG Provides a 48 Inch Maximum Height Standard for Door Hardware,

16

Which Should Be Measured From Its Centerline.

17

The ADAAG provides, “Hardware required for accessible door passage shall be mounted no

18 higher than 48 in (1220 mm) above finished floor.” (ADAAG 4.13.9.) Thus, plaintiffs’ application of a

19 44 inch standard is wrong.

20

In addition, plaintiffs’ assumption that door hardware should be measured at the top instead of

21 the centerline is erroneous. The Special Master measured to the centerline of the door hardware. At

22 store numbers 2918 and 4343, for example, the Special Master measured the push plate and the pull

23 handle both at 37 inches above the floor based upon a centerline measurement. Plaintiffs also failed to

24 challenge the centerline measurement of door hardware including door locks, push plates, and pull

25 handles at store numbers 2918 and 4343.

26

Plaintiffs failed to challenge as noncompliant the height of the door hardware including the

27 deadbolt latch mechanism inside restrooms, which existed at store number 2918 in their 2006 Meet and

28

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1 Confer Charts. These omissions constitute evidence that the height of such restroom door locks did not

2 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

3

In addition, McSwain’s contention that the interior handle at the south entrance at store #4284 is

4 too high ignores the clearly visible push bar located below the handle. The push bar is well below 48

5 inches AFF.

6

57. This Court Has Already Ruled that Plaintiffs Lack Standing to Litigate Hardware.

7

In Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL 1910925 (N.D. Cal. Aug. 10,

8 2005) (Jenkins, J.), this Court held that plaintiffs in this action lack standing to sue for barriers affecting

9 persons with limited use of their hands and arms such as the lack of continuous delivery of toilet paper

10 and hardware (doors, locks, faucets, flush controls). “Simply stated, the Plaintiff class has not been

11 defined as to encompass persons with limited use of their hands and arms without regard to mobility.”

12 Id. at *4; see also Harris v. Del Taco, Inc., No. SACV 04-730 DOC (MLGx), 2004 WL 3744291, at *3

13 (C.D. Cal. Sept. 13, 2004) (Carter, J.) (“[P]laintiff lacks standing to challenge those violations of the

14 ADA that he observed at Defendants’ restaurant that are not related to his disability of limited

15 mobility.”) (emphasis added). Thus, Taco Bell need not address such elements.

16

58. The Measurement of Door Opening Force Does Not Apply to the Force Required to

17

Engage or Disengage Devices Including Bolts Used to Keep the Door in a Closed

18

Position.

19

The ADAAG Manual, published by the Access Board, which is the author of the ADAAG,

20 addresses the methodology for measuring opening force in relevant part as follows, “The maximum

21 force pertains to the continuous application of force necessary to fully open a door, not the initial force

22 needed to overcome the inertia of the door. It does not apply to the force required to retract bolts or to

23 disengage other devices used to keep the door in a closed position.” (ADAAG Manual at 58) (emphasis

24 added). Likewise, there is no door closing force maximum standard in the ADAAG. Thus, plaintiffs’

25 measurement of the force relating to engaging or disengaging bolts or other devices at certain stores is

26 irrelevant.

27

59. The ADAAG Standard for Pull Side Depth Maneuvering Clearance Is 48 Inches

28

Minimum If the Restroom Door Does Not Have a Closer.

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1

Plaintiffs rely exclusively upon a front or forward approach from the pull side of the restroom

2 door. Plaintiffs ignore that as long as the restroom door does not have a closer, the standard is only 48

3 inches minimum based on a latch side approach. (ADAAG Fig. 25(c).) Even with a closer, the standard

4 is only 54 inches. Id.

5

Thus, McSwain’s measurements of pull side depth at store #124 (men’s RR) is compliant under

6 the ADAAG.

7

McSwain’s exclusive reliance upon a front/forward approach is misplaced at both restrooms at

8 store #3064. Based on a latch side approach, the depth standard is only 54 inches even with a door

9 closer under the ADAAG to the extent that there is 24 inches minimum pull side width beyond the strike

10 jamb. There is sufficient pull side width based upon McSwain’s photos EMP010945 (men’s RR) and

11 EMP011026, EMP011028 (women’s RR) at store #3064.

12

At store number 19344, the Special Master measured the pull side depth maneuvering clearance

13 outside the women’s restroom as 47-1/2 inches and observed that the “wall cannot be relocated,”

14 essentially applying the “technically infeasible” defense. (28 C.F.R. Pt. 36, App. A, ADAAG, §

15 4.1.6(1)(j).) The Special Master also noted that the “projection into clear floor space is insignificant.”

16 Given that the restroom had a closer as recorded by the Special Master (element 537), the applicable

17 ADAAG standard was 54 inches minimum depth at the time of the Special Master’s survey. Thus, it is

18 significant that the 6-1/2 inch gap between the then-applicable 54 inch ADAAG standard and the 47-1/2

19 inch measurement was deemed to be “insignificant” by the Special Master.

20

Indeed, plaintiffs failed to challenge as noncompliant the men’s restroom pull side depth at store

21 number 20180 in their Meet and Confer Chart even though the Special Master measured the depth as 58

22 inches.

23

These omissions constitutes evidence that the maneuvering clearance pull side depth did not

24 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

25

60. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Pull

26

Side Depth Clear Floor Area.

27

The ADAAG provides a “technically infeasible” defense that applies to the pull side depth clear

28 floor area. (28 C.F.R. Pt. 36, App. A, ADAAG, § 4.1.6(1)(j).) Indeed, the Special Master made such

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1 determination in his Interim Survey Reports as to store numbers 829 (men’s RR), 3112 (men’s RR),

2 3145 (women’s RR), 3390 (men’s RR), 4325 (women’s RR), 19344 (women’s RR), 20180 (women’s

3 RR), 20353 (men’s RR).

4

61. Stub-Out Walls or Wing Walls Pose No Obstruction to Usability of Restroom Door.

5

Even if the Court does not find that Taco Bell’s modifications have rendered certain issues moot,

6 plaintiffs failed to challenge as noncompliant the pull side depth maneuvering clearance inside

7 restrooms that have stub out walls, which existed at store number 829 in their 2006 Meet and Confer

8 Charts. At store #829, assuming that the pull side depth is 44-7/8 inches as measured by the Special

9 Master instead of the “approximately 42” measurement taken by plaintiffs’ experts (without any

10 photographic documentation of such measurement), the pull side depth shortfall is a mere 3-1/8 inches,

11 based on a 48 inches pull side latch standard. (ADAAG Fig. 25(c).)

12

Similarly, plaintiffs failed to challenge as noncompliant the pull side depth maneuvering

13 clearance inside restrooms that have wing walls, which existed at store number 2961 in their 2006 Meet

14 and Confer Charts. These omissions constitute evidence that such stub out walls or wing walls did not

15 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores. Indeed,

16 the Special Master indicated that the stub out wall in the women’s restroom at store #829 was “no

17 obstruction”. Similarly, the Special Master noted that the stub out wall at store #4284 was not a barrier.

18 In particular, the Special Master stated regarding the pull side depth maneuvering clearance, “offset does

19 not affect compliant function of the door”.

20

Given that this store was constructed before January 26, 1993, the ADAAG provides merely

21 “guidance” only. Mannick v. Kaiser Foundation Health Plan, Inc., No. C 03-5905 PJH, 2006 WL

22 1626909, at *6 (N.D. Cal. June 9, 2006) (Hamilton, J.) (“Although existing facilities are not required to

23 comply with the ADAAG (unless they have been altered), the ADAAG nevertheless provides guidance

24 for determining whether an existing facility contains architectural barriers.”) (“deviations from the

25 ADAAG are not necessarily determinative in establishing barriers to access”).

26

This small shortfall does not deprive any wheelchair-bound customer of the “full and equal”

27 enjoyment of the services at the store at issue. D’Lil v. Stardust Vacation Club, No. CIV-S-00-1496

28 DFL PAN, 2001 WL 1825832, at *5 (E.D. Cal. Dec. 21, 2001) (Levi, J.) (“[A]t trial, [plaintiff] must still

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1 prove that [the room in question] contained actual barriers that hindered her access to the room; she

2 cannot rely solely on the [resort's] deviation from ADAAG to establish her Title III claim.”) (emphasis

3 added).

4

Moreover, Taco Bell's policy of assisting disabled customers, including signage reflecting such

5 policy, constitutes a reasonable modification of its self-service policy.

6

Finally, plaintiffs have failed to meet their prima facie burden of showing that the removal of the

7 alleged barrier is readily achievable. Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp. 2d

8 1357, 1368 (S.D. Fla. 2001) (Moore, J.) (“A finding of noncompliance [with the ADAAG] is not

9 tantamount to finding an ADA violation; plaintiff carries the additional burden of showing that removal

10 of the barriers is readily achievable.”).

11

62. The ADAAG Standard for Push Side Depth Maneuvering Clearance Is 42 Inches

12

Minimum If the Restroom Door Does Not Have a Closer.

13

Plaintiffs rely exclusively upon a front or forward approach from the push side of the restroom

14 door, which is typically in the corridor outside a restroom. Plaintiffs ignore that as long as the restroom

15 door does not have a closer, the standard is only 42 inches minimum based on a latch side approach.

16 (ADAAG Fig. 25(c).)

17

At store number 3160, the Special Master determined that 43-7/8 inches was “within tolerance”

18 for a push side depth maneuvering clearance. Indeed, the Special Master determined that the push side

19 depth measurements taken at the following stores were compliant even though the depth was less than

20 48 inches: store #4211 (44-5/8 inches--men’s RR); store #4284 (45-1/2 inches--women’s RR); store

21 #4633 (43-3/4 inches--women’s RR). At store number 3007, the Special Master expressly stated that

22 the applicable standard was only 44 inches, presumably based upon the California standard. The

23 Special Master would have expressed the lower ADAAG standard of 42 inches if that was the only

24 standard that he was considering.

25

Indeed, plaintiffs failed to challenge as noncompliant restroom push side depth maneuvering

26 clearances at the following stores in their Meet and Confer Charts even though such measurements were

27 less than 48 inches depth: store #829 (44-1/8 inches--men’s RR); store #2918 (44 inches--men’s RR);

28 store #4027 (45-5/8 inches--men’s RR); store #4311 (45 inches--men’s RR); store #4325 (44-1/2 inches-

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1 -women’s RR); store #5138 (43-1/2 inches--women’s RR); store #5513 (44 inches--women’s RR); store

2 #17224 (46 inches--women’s RR); #18377 (44 inches--women’s RR); #21343 (45 inches--women’s

3 RR).

4

These omissions constitutes evidence that the maneuvering clearance push side depth did not

5 deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

6

At store number 4704, plaintiffs failed to challenge as noncompliant the men’s restroom push

7 side depth in their Meet and Confer Chart apparently given that the Special Master measured the depth

8 as 48 inches. Plaintiffs had their attorney attend such site inspection, which was part of the Pilot

9 Program, so there is no excuse for plaintiffs to claim that they were unfamiliar with the Special Master’s

10 measurements taken at this particular store. It is unfair for plaintiffs to have taken the position that the

11 Special Master’s measurement should be adopted in full as 100% accurate, but to later challenge the

12 Special Master’s measurements as inaccurate years later.

13

63. The ADAAG Provides a “Technically Infeasible” Defense that Applies to the Push

14

Side Depth Clear Floor Area.

15

The ADAAG provides a “technically infeasible” defense that applies to the push side depth clear

16 floor area. (28 C.F.R. Pt. 36, App. A, ADAAG, § 4.1.6(1)(j).) Indeed, the Special Master made such

17 determination in his Interim Survey Reports as to store numbers 955 (women’s RR), 3184 (men’s RR),

18 4343 (women’s RR), 4558 (women’s RR), 4617 (women’s RR), 4622 (women’s RR), 4799 (women’s

19 RR), 5081 (women’s RR), 5512 (women’s RR), 5636 (women’s RR), 5641 (women’s RR), 19509

20 (men’s RR and women’s RR).

21

64. The ADAAG Does Not Regulate the Extent to Which a Restroom Door Is Permitted

22

to Swing Into the Wheelchair Turning Space.

23

At store #3184, McSwain challenges the extent to which the women’s restroom door swings into

24 the wheelchair turning space.

25

The ADAAG is silent as to the extent to which a restroom door is permitted to swing into the

26 wheelchair turning space. Indeed, the proposed ADAAG 603.2.3 clarifies, “Doors shall be permitted to

27 swing into the required turning space.”

28

65. Movable Objects Such as Trash Cans Are Not Architectural Barriers.

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1

The ADA only applies to “architectural barriers,” 28 C.F.R. § 36.304(a), and not temporary or

2 movable barriers. Martinez v. Home Depot USA, Inc., No. Civ. S-04-2272 DFL DAD, 2007 WL

3 926808, at *4-*5 (E.D. Cal. Mar. 27, 2007) (Levi, J.); Eiden v. Home Depot USA, Inc., No. CIV. S-04-

4 977 LKK/CMK, 2006 WL 1490418, at *12 (E.D. Cal. May 26, 2006) (Karlton, J.) (“Neither the ADA

5 nor the ADAAG addresses movable objects.”); Cherry, et al. v. The City College of San Francisco, et

6 al., No. C 04-04981 WHA, slip op. at 13:4-5 (N.D. Cal. Jan. 12, 2006) (Alsup, J.) (holding that the

7 burden is upon the plaintiffs to show that any blockage is persistent). Indeed, the Architectural and

8 Transportation Barriers Compliance Board, which drafted the ADAAG, stated in the preamble that

9 “[t]hese guidelines are intended to address only that equipment that is fixed or built into the structure of

10 the building.” 56 C.F.R. 35414-15 (July 26, 1991), quoted in Colorado Cross-Disability Coalition v.

11 Too (Delaware), Inc., 344 F. Supp. 2d 707, 712 (D. Colo. Nov. 10, 2004) (Babcock, J.).

12

In Massachusetts v. E*Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006) (Lasker, J.), a

13 case in which Tim Fox and Amy Robertson served as plaintiffs’ counsel, the district court held, “Only

14 equipment that is fixed or built in to the facility is covered by the accessibility standards (e.g., public

15 pay telephones or built-in ATMs.).” Id. at 57 (citing ADA Title III Technical Assistance Manual, § III-

16 5.3000 (1994 Supp.)), available at http://www.ada.gov/taman3up.html. “Interpretive guidance issued by

17 the Access Board and adopted by the DOJ has specified that to be covered by ADAAG, equipment must

18 be ‘fixed or built into the structure of a building’.” Id. at 57 (quoting 56 Fed. Reg. 35,408 at *12) (July

19 26, 1991). Significantly, the district court distinguished the decision in Colorado Cross-Disability as

20 involving movable structures not contemplated during the building process.

21

In Wilson v. Norbreck LLC, No. Civ. S-04-690 DFL JFM, slip op. (E.D. Cal. Sept. 15, 2006)

22 (Levi, J.), the district court held that wastebaskets near a lavatory were not barriers because “the

23 wastebaskets are light in weight”. Id. at 8:5. “The defense expert, himself a disabled person in a

24 motorized wheelchair, credibly testified that the wastebaskets present no barrier to a disabled person.”

25 Id. at 8:5-8. The district court added, “[T]he court finds that the waste-baskets are easily moved to

26 provide any needed access to the sinks.” Id. at 8:8-10. “If the wastebaskets are in the way,” “the vast

27 majority of disabled persons . . . could with little effort slide them a few inches to the side.” Id. at 8:10-

28

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1 13. The court rejected the argument that such wastebaskets were actionable via a discriminatory

2 “policy”. Id. at 8:15-18.

3

In Hubbard v. Sobreck, LLC, No. 04cv1129 WQH, slip op. (S.D. Cal. Aug. 7, 2006) (Hayes, J.),

4 the district court held that waste baskets are not architectural fixtures that create an obstruction to the

5 lavatory. Id. at 5:13-15.

6

In Chapman v. Pier 1 Imports, No. CIV. S-04-1339 LKK CMK, 2006 WL 1686511 (E.D. Cal.

7 June 19, 2006) (Karlton, J.), the district court granted summary judgment in favor of the defendant as to

8 claims alleging that a ladder and merchandise obstructed an accessible route of travel to the restroom.

9 The court held that “any obstruction was only temporary in nature.” Id. at *10.

10

In Association of Disabled Americans, Inc., v. Key Largo Bay Beach, LLC, 407 F. Supp. 2d 1321

11 (S.D. Fla. 2005) (King, J.), the district court refused to issue injunctive relief as to portable lounge chairs

12 at a hotel because “it is clearly futile for the Court to enter an injunction requiring lounge chairs to be

13 moved where they are of the typical variety, constantly moved not only by staff, but also by guests.” Id.

14 at 1343. The court added, “As with the lounge chairs on the pool deck, portable plastic waste cans are

15 not an item susceptible of an enforceable injunction.” Id. at 1346 (emphasis added).

16

In Jones v. Wild Oats Markets, Inc., No. 04-1018-WQH (WMc), slip op. (S.D. Cal. Nov. 29,

17 2005) (Hayes, J.), the district court held that the wastebasket was not an obstruction because the plaintiff

18 testified that “she could have easily moved the trashcan out of her way.” Id. at 18:25-19:2.

19

66. The Wall-Mounted Semi-Recessed Waste Receptacle Does Not Deprive Taco Bell’s

20

Customers of Full and Equal Enjoyment of the Restrooms.

21

Plaintiffs argue that the wall-mounted, semi-recessed waste receptacle is a barrier at store #526.

22 It is worth noting that plaintiffs refused to propose any particular solutions in this particular restroom in

23 their 2006 M&C chart. Taco Bell, thus, proceeded unilaterally with what it viewed as an appropriate

24 solution by installing the new wall-mounted semi-recessed waste receptacle. Simply put, there is

25 nothing to indicate that it deprives wheelchair-bound customers of the full and equal enjoyment of the

26 facility. Plaintiffs’ expert’s measurement indicates that it does not project more than 4 inches from the

27 wall on which it is attached.

28

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1

67. The ADAAG Does Not Regulate Slope Surrounding a Floor Drain on an Accessible

2

Route Any Differently Than Any Other Portion of the Accessible Route.

3

Plaintiffs assume incorrectly that the ADAAG imposes an analogous requirement upon the

4 maximum slope surrounding a floor drain as imposed on the maneuvering clearance at a door. The

5 ADAAG expressly provides that the “floor or ground area within the required clearances [at doors] shall

6 be level and clear.” (ADAAG 4.13.6.) The ADAAG’s omission that the accessible route within the

7 restroom must be “level” is significant. This means that the generally applicable ADAAG standards,

8 equally applicable in an outdoor setting, apply inside a restroom, including the standards for minimum

9 width of an accessible route, i.e., 36 inches (except at doors which are subject to a 32 inch minimum

10 standard), and a running slope maximum of 5% or even greater up to 8.3% (technically constituting a

11 “ramp” even if the requirements for handrails have not been triggered), see ADAAG 4.3.7, 4.8.1, 4.8.2,

12 4.8.5.

13

The foregoing also demonstrates that the mere fact that the slope surrounding a floor drain inside

14 a restroom is not “level” does not necessarily mean that an ADAAG violation has occurred. For

15 example, if the floor drain is not on any accessible route to an element that is required to be accessible, it

16 is irrelevant. In addition, even assuming that the non-level slope is on an accessible route, it is possible

17 that the floor drain slope did not deprive a disabled customer of the “full and equal enjoyment” of the

18 services provided at the facility at issue.

19

Indeed, plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the

20 slope surrounding floor drains in restrooms even though such slopes allegedly exceeded 2% based upon

21 measurements taken by the Special Master as follows: 4.1% slope at women’s RR in store number 99;

22 3.9% slope at men’s RR in store number 20175; 4.0% slope at women’s RR in store number 20175;

23 3.5% slope at women’s RR in store number 20180. Similarly, plaintiffs failed to challenge in their 2006

24 Meet and Confer Charts as noncompliant the slope surrounding floor drains in restrooms even though

25 such slopes allegedly exceeded 2% based upon measurements taken by plaintiffs’ expert as follows:

26 3.8% slope at men’s RR in store #1687; 5.3% slope at men’s RR in store #4343; 4.2% slope at women’s

27 RR in store #4343; 5.3% slope at women’s RR in store #19334.

28

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1

These omissions constitute evidence that the slope of floor drains in restrooms did not deprive

2 plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell stores.

3

68. The ADAAG Does Not Require an Automatic Closing Device on an Accessible

4

Toilet Stall.

5

Although McSwain challenges the lack of an automatic closing device at the women’s restroom

6 accessible toilet stall at store #19509, the ADAAG does not require that an accessible toilet stall have an

7 automatic closing device. (ADAAG 4.17.)

8

69. Plaintiffs’ Failure to Apply the Toilet Stall Door Maneuvering Clearances in Fig.

9

30(a) of the ADAAG Is Wrong.

10

Although McSwain appears to apply some unspecified form of door maneuvering clearance

11 standards in claiming that the pull side depth at the accessible toilet stall in the men’s restroom at store

12 #18808 is a barrier, McSwain’s analysis ignores the latch side approach that is feasible at this accessible

13 toilet stall. (See EM13698, EM13700, EM13703, EM13704.) Based on a latch side approach, the pull

14 side depth standard is a minimum 42 inches. (ADAAG Fig. 30(a).) McSwain’s 49-1/2 inches

15 measurement exceeds this standard.

16

Similarly, at store #22691, McSwain’s apparent application of the general door maneuvering

17 clearances in ADAAG Fig. 25 is erroneous. McSwain’s analysis ignores the latch side approach that is

18 feasible at this accessible toilet stall. Based on a latch side approach, the pull side depth standard is a

19 minimum 42 inches, which is exceeded here. (ADAAG Fig. 30(a).) McSwain’s analysis also ignores

20 that the measurements depicted in Figure 30(a) apply instead of the general door maneuvering

21 clearances set forth in Figure 25. Otherwise, the minimum 42 inches pull side depth standard set forth

22 in Fig. 30(a) would not be applicable.

23

70. The ADAAG Does Not Require a Minimum 60 Inch Wide Envelope Surround the

24

Water Closet.

25

Plaintiffs argue that the ADAAG requires a 60 inch width surround a water closet as measured

26 from the side wall closest to a water closet. Plaintiffs are wrong. As depicted in Fig. 28 of the

27 ADAAG, fixtures such as lavatories are depicted as compliant even if their side edge is 18 inches

28

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1 minimum to the centerline of the water closet. Thus, the actual distance between the side edge of a

2 lavatory and the side edge of the water closet is far less than 18 inches, and still compliant.

3

Indeed, plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the

4 distance between the side edge of a lavatory in a restroom and the side edge of the adjoining water

5 closet based upon measurements taken by the Special Master as follows: 34-1/2 inches at men’s RR in

6 store number 4168.

7

Similarly, plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant

8 the distance between the side edge of a urinal in a restroom and the side edge of the adjoining water

9 closet based upon measurements taken by the Special Master as follows: 29 inches at men’s RR in

10 store number 4343; 29-1/4 inches at men’s RR in store number 4578.

11

Indeed, plaintiffs expressly proposed to Taco Bell that at store number 4510, that Taco Bell

12 relocate the water closet by 3 inches so that there would be at least 28 inches of distance between the

13 side edge of a urinal in a restroom and the side edge of the adjoining water closet.

14

Plaintiffs’ proposed solution in 2006 was either entirely useless and wasteful or plaintiffs were

15 proposing what they viewed as the most appropriate retrofitting solution at the time.

16

These omissions constitute evidence that the less than 60 inches distance between the side edge

17 of a restroom fixture such as a lavatory or a urinal and the side wall in a restroom closest to a water

18 closet did not deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco Bell

19 stores.

20

71. The ADAAG Does Not Require At Least 48 Inches of Clear Floor Space In Front of

21

the Front End of the Water Closet.

22

McSwain has repeatedly asserted at various stores that the distance between the front end of the

23 water closet and the opposite restroom wall or toilet stall partition door is less than 48 inches in length.

24

The ADAAG, however, contains no such length standard in regards to the space in front of the

25 water closet itself applicable to a single-user restroom. (See ADAAG 4.16.2 Fig. 28.) Nor does the

26 ADAAG set forth such standard in an accessible toilet stall. (See ADAAG 4.17.2, 4.17.3, Fig. 30(a).)

27

The clear floor space at the water closet complies with Figure 28 of the ADAAG at store

28 numbers 3184.

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1

72. The ADAAG Does Not Require that the Front End of the Side Grab Bar Be

2

Positioned Exactly 24 Inches In Front of the Water Closet.

3

The ADAAG does not require that the front end of the side grab bar be positioned exactly 24

4 inches in front of the front end of the water closet. (ADAAG Fig. 29(b).)

5

73. The ADAAG Does Not Specify a Particular Maximum Distance Between Toilet

6

Paper Dispenser and the Rear Wall.

7

There is no maximum distance from the toilet paper dispenser to the rear wall. Martinez v.

8 Home Depot USA, Inc., No. Civ. S-04-2272 DFL DAD, 2007 WL 926808, at *5 (E.D. Cal. Mar. 27,

9 2007) (Levi, J.). Under the federal standard, it merely needs to be “within reach”. Wilson v. Norbreck,

10 LLC, No. 04-cv-00690-DFL-JFM, 2005 WL 3439714, at *4 (E.D. Cal. Dec. 14, 2005) (Levi, J.);

11 ADAAG 4.16.6 (“Toilet paper dispensers shall be installed within reach, as shown in Fig. 29(b).”).

12

Taco Bell has attempted to comply with the proposed ADAAG standard depicted in Figure

13 604.7, even though it is not currently in effect, which depicts a distance of 7-9 inches between the front

14 end of the water closet and the centerline of the toilet paper dispenser. Assuming that Taco Bell’s water

15 closets typically project approximately 28 inches from the rear wall, the centerline of a toilet paper

16 dispenser would need to be between 35 to 37 inches from the rear wall in order to comply with the

17 proposed ADAAG. Thus, Taco Bell has retrofitted its accessible restrooms in California stores by

18 relocating the toilet paper dispensers so that they are each 36 inches to the rear wall, as measured to the

19 centerline of the dispenser.

20

74. Measurements Applicable to Interior Toilet Stalls Such As the 36 Inch Distance of

21

the Toilet Paper Dispenser from the Rear Wall Do Not Apply to “Water Closets”.

22

In White v. Divine Investments, Inc., No. CIV. S-04-0206 FCD/DA, 2005 WL 2491543 (E.D.

23 Cal. Oct. 7, 2005) (Damrell, J.), aff’d mem, 286 Fed. Appx. 344, 2008 U.S. App. LEXIS 12221 (9th Cir.

24 June 5, 2008), the district court granted the defendants summary judgment as to the location of the toilet

25 tissue dispenser. Id. at *7. The defendants successfully argued that section 4.17.3 of the ADAAG,

26 which was applicable to interior toilet stalls, was not applicable to water closets without any stalls. Id.

27 at *7 n.18. Thus, it is improper for plaintiffs to rely upon standards applicable to interior toilet stalls,

28 such as the 36 inch distance of the toilet paper dispenser from the rear wall depicted in Figure 30(d) of

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1 the ADAAG in evaluating single-user water closets. Indeed, courts have drawn a distinction between

2 standards applicable to a toilet room versus a toilet stall. Independent Living Resources v. Oregon

3 Arena Corp., 1 F. Supp. 2d 1124, 1143-44 (D. Or. 1998) (“designers have a choice in how to design a

4 toilet room (as opposed to a toilet stall, which is covered by a different regulation)”).

5

75. The ADAAG Does Not Require Self-Closing Accessible Stall Doors.

6

McSwain surveyed stall doors as not self-closing at the men’s restrooms at store numbers 2961,

7 4704, 19389, 19509, 20052, 21343, 22692 and the women’s restroom at store number 2961. The

8 ADAAG does not regulate accessible stall doors as to whether the doors are self-closing or not.

9

76. The ADAAG Does Not Regulate the Projection of a Urinal.

10

McSwain asserts that the projection of the urinal rim at store #4054 is noncompliant. The

11 ADAAG does not regulate the projection of a urinal from the wall. (See ADAAG 4.18.) Plaintiffs’

12 counsel proposed a range of between 12 inches to 17-1/2 inches as an “acceptable measurement” in an

13 email to defense counsel sent and received on February 15, 2006.

14

77. The ADAAG Does Not Regulate the Precise Minimum Distance Between the

15

Centerline of a Lavatory and the Side Wall.

16

The ADAAG does not regulate the precise minimum (or maximum or exact) distance between

17 the centerline of a lavatory and the side wall. Thus, McSwain’s reliance on such issue as an alleged

18 violation of the ADA as it pertains to men’s restroom lavatories at store numbers 124, 2968, 3117, 3498,

19 4633, 5259, 19744, 22871 and the women’s restroom lavatory at store number 3117 is misplaced.

20

Indeed, plaintiffs failed to challenge in their 2006 Meet and Confer Charts as noncompliant the

21 precise distance between the centerline of a lavatory in a restroom and the side wall based upon

22 measurements taken by the Special Master as follows: 15-5/8 inches at men’s RR in store number

23 3117; 16-3/8 inches at men’s RR in store #19744.

24

These omissions constitute evidence that the less than 18 inch distance between the centerline of

25 a lavatory and the side wall in restrooms did not deprive plaintiffs of “full and equal enjoyment” of the

26 services provided at the Taco Bell stores.

27

78. The ADAAG Does Not Require that the Entirety of the Drain Pipe Be Covered.

28

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1

The ADAAG does not impose an insulation standard over 100% of a drain pipe. Rather, the

2 ADAAG provides, “Hot water and drain pipes under lavatories shall be insulated or otherwise

3 configured to protect against contact.” (ADAAG 4.19.4.) In Jones v. Wild Oats Markets, Inc., No. 04-

4 1018-WQH (WMc), slip op. (S.D. Cal. Nov. 29, 2005) (Hayes, J.), the district court held that an ADA

5 plaintiff had failed via her expert to establish that any violation of the ADAAG had occurred

6 notwithstanding the fact that six inches of drain piping was uncovered. Id. at 14:11-19.

7

79. The ADAAG Does Not Require the Insulation of a Hot Water Line If It Was Not

8

Accessible Under the Lavatory.

9

In Wilson v. Norbreck, LLC, No. 04-cv-00690-DFL-JFM, 2005 WL 3439714 (E.D. Cal. Dec. 14,

10 2005) (Levi, J.), the district court held that hot water lines did not require insulation because they were

11 configured to prevent contact and were not accessible under the lavatory. Id. at *5. Indeed, at store

12 number 4311, McSwain ignored the exposed portion of the hot water line, which is clearly visible. The

13 only logical explanation is that McSwain determined that the hot water line was configured to prevent

14 contact.

15

80. The ADAAG Does Not Impose an Insulation Standard Over Cold Water Supply

16

Line.

17

At store #19298, McSwain’s observation that the “cold angle stop insulation is loose” is

18 irrelevant. McSwain similarly makes an observation as to the insulation over the cold water line at

19 stores #2007, #3117, #9454, #19532, #20635, and #21453. Thus, the reference to the lack of cold water

20 insulation appears to be deliberate. The ADAAG does not impose an insulation standard over a cold

21 water supply line. (ADAAG 4.19.4.) (“Hot water and drain pipes under lavatories shall be insulated or

22 otherwise configured to protect against contact.”).

23

81. The ADAAG Allows the Forward Reach to Go Beyond the Toe Space.

24

Even though plaintiffs requested the installation of wall-mounted trash receptacles in lieu of

25 portable trash cans in their 2006 M&C charts, plaintiffs attack Taco Bell’s newly installed wall-mounted

26 combination paper towel dispenser/trash receptacles at some stores because they purportedly do not

27 provide an appropriate forward reach with respect to toe clearance. Plaintiffs’ rationale is premised

28 upon the assumption that a forward reach cannot never exceed the location of the toe space. Plaintiffs

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1 ignore ADAAG Appendix Fig. A3(a), which clearly depicts the forward reach as going beyond the toe

2 space. Indeed, the location of the outstretched hand depicted in the Figure is within the minimum 48

3 inch length that is necessary for clear floor space for a single, stationary wheelchair and occupant.

4 (ADAAG 4.2.4.1, Fig. 4(a).)

5

Indeed, Taco Bell’s measurements at a typical new combination paper towel dispenser/trash can

6 indicate that there is only two inches at most distance to reach inside the paper towel dispenser to grasp

7 a disposable paper towel. Based upon the manufacturer’s recommended barrier-free mounting height

8 for the new combination paper towel dispenser/trash receptacle, there would only be toe clearance of

9 only 4-5/8 inches, which is less than the 9 inch standard for toe clearance provided in the ADAAG Fig.

10 31. Thus, the new unit is intended to be usable without providing toe clearance of 9 inches minimum

11 underneath the unit.

12

82. The ADAAG Does Not Require That Restroom Dispensers and Controls Be

13

Mounted No Higher Than 40 Inches AFF.

14

At store #3184, McSwain challenges the height of the soap dispenser in the women’s restroom

15 even though he measured it as 48 inches AFF. This measurement complies with the ADAAG standards

16 for both forward and side reach ranges. (ADAAG 4.2.5, 4.2.6 Fig. 5 & 6.)

17

83. Maintenance Issues Cannot Trigger ADA Liability.

18

Plaintiffs cite loose toilet tissue rolls as architectural barriers even though they have been used

19 up 90%. At store #5636, McSwain surveyed a missing flush handle on the water closet in the women’s

20 restroom even though such restroom was marked “out of order” on the date of his site inspection.

21 Significantly, the location of the flush handle, which had broken off, was already on the wide side of the

22 water closet. Taco Bell replaced the missing flush handle as part of its normal maintenance. A broken

23 flush handle that is fixed as part of normal maintenance does not trigger ADA liability. Taco Bell’s

24 Director of ADA Compliance personally inspected the store during the week of January 5-9, 2009, and

25 such flush handle existed at that time.

26

84. Plaintiffs Seek Technically Infeasible Modifications.

27

Plaintiffs seek technically infeasible solutions despite the fact that Taco Bell has made

28 modifications “to the maximum extent feasible” in compliance with the ADAAG’s alterations standard.

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1 (ADAAG 4.1.6(j).) At store #4633, given plaintiffs’ measurement of pull side depth as 61-1/8 inches, it

2 is impossible to comply with both the 60 inches pull side depth standard and to also comply with the 17

3 inch minimum depth standard for a lavatory. Plaintiffs apparent request for both 60 inches of pull side

4 depth and 17 inches of lavatory depth within the same space is technically infeasible. (ADAAG

5 4.1.6(j).) Taco Bell has provided accessibility to the maximum extent feasible. (ADAAG 4.1.6.)

6

V.

7

CONCLUSION

8

Based upon the foregoing, it is respectfully requested that the motion be granted and that this

9 Court award such other and further relief as it deems appropriate.

10 DATED: October 20, 2009

GREENBERG TRAURIG, LLP

11

12

By /s/

Gregory F. Hurley

13

Attorneys for Defendant TACO BELL CORP.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case4:02-cv-05849-PJH Document481 Filed11/10/09 Page1 of 17

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
104 Broadway, Suite 400
3 Denver, Colorado 80203
Tel: (303) 595-9700
4 Fax: (303) 595-9705
Email: tfox@foxrob.com
5
LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823
835 Mandana Blvd.
7 Oakland, CA 94610
Tel: (510) 419-0940
8 Fax: (501) 419-0948
Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14 FRANCIE E. MOELLER et al,

15

Plaintiffs,

16 v.

17 TACO BELL CORP.,

18

Defendant.

Case No. 02-CV-05849 PJH JL PLAINTIFFS’ MOTION TO STRIKE
Hearing Date: December 16, 2009 Hearing Time: 9:00 a.m.
The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor

19

20

21

22

23

24

25

26

27

28

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TABLE OF CONTENTS NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION.. . . . . . . . . 1
ISSUES TO BE DECIDED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. The MPSJ and Exhibit 18 Include Several Factual Contentions That Are Not Supported by an Affidavit, Declaration or Appropriate Reference to the Record In Violation Of Local Rule 7-5... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. The MPSJ and Elmer Exhibit 18 Include Citation to Statements Made in Compromise Negotiations in Violation of FRE 408... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
III. The MPSJ and Elmer Exhibit 18 Cite Documents and Photographs That Defendant Did Not Submit to the Court... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV. The Elmer and Reeves Declarations Include Many Assertions for Which No Foundational Facts Are Provided Establishing Personal Knowledge in Violation of FRCP 56 and FRE 602.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. Expert Testimony In The Elmer And Reeves Declarations And Elmer Exhibit 18 Should Be Struck Because It Was Not Disclosed By The Expert Designation Deadlines and Because The Declarations Lack Foundation.. . . . . . . 10
VI. Conclusory Assertions in the Reeves Declaration and Elmer Exhibit 18 Should be Struck .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Case No. 02-CV-05849 PJH JL

Plaintiffs’ Motion to Strike

i

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TABLE OF AUTHORITIES
Cases
Carmen v. San Francisco Unified School District, 237 F.3d 1026 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9
Dos Amigos Distributors, Inc. v. Cadbury Bebidas, S.A. de C.V., Civil No. 05cv0151-L (POR), 2008 WL 3844062 (S.D. Cal. Aug. 14, 2008). . . . . . . . . 13
Green v. Baca, 226 F.R.D. 624 (C.D. Cal. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Hansen v. United States, 7 F.3d 137 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Johnson v. Kriplani, No. Civ. 2:06-CV-02054 JAM GGH, 2008 WL 2620378 (E.D. Cal. July 2, 2008). . . . . 10
Talada v. City of Martinez --- F. Supp. 2d ----, 2009 WL 2941514 (N.D. Cal. Sept. 10, 2009). . . . . . . . . . . . . . . . . 13
Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Rules
The Federal Rules of Civil Procedure Rule 26(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 12, 13 Rule 37(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12 Rule 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10
The Federal Rules of Evidence Rule 408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 7, 8 Rule 602. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10 Rule 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13
Local Rules, The Northern District of California Local Rule 7-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7

Case No. 02-CV-05849 PJH JL

Plaintiffs’ Motion to Strike

ii

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1

NOTICE

2

On December 16, 2009, at 9:00 a.m., or as soon thereafter as this motion may be heard,

3 before the Honorable Phyllis J. Hamilton, Plaintiffs will, and hereby do, move for an order

4 striking portions of: the Declaration of Steve Elmer in Support of Taco Bell Corp.’s Motion for

5 Partial Summary Judgment (Docket No. 458-1, hereinafter the “Elmer Declaration”); exhibit

6 18 to the Elmer Declaration (“Elmer Exhibit 18”); the Declaration of Robert G. Reeves in

7 Support of Taco Bell Corp.'s Motion for Partial Summary Judgment (Docket No. 458-2,

8 hereinafter the “Reeves Declaration”), and the Memorandum of Points and Authorities in

9 Support of Taco Bell Corp.’s Motion for Partial Summary Judgment (Docket No. 458,

10 hereinafter “MPSJ”). This motion is based on this Notice of Motion, the supporting

11 memorandum of points and authorities, and all accompanying attachments hereto.

12

RELIEF SOUGHT

13

Plaintiffs seek an order striking portions of the Elmer Declaration, Elmer Exhibit 18,

14 the Reeves Declaration, and the MPSJ.

15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

16

ISSUES TO BE DECIDED

17

Whether the Court should strike portions of the Elmer Declaration, Elmer Exhibit 18,

18 the Reeves Declaration and the MPSJ for failure to comply with the Federal Rules of Evidence

19 (“FRE”), the Federal Rules of Civil Procedure (“FRCP”) and the Local Rules for the Northern

20 District of California (“Local Rules”).

21

SUMMARY OF ARGUMENT

22

Defendant’s summary judgment papers violate several basic but important procedural

23 and evidentiary rules. Specifically:

24

•

The MPSJ and Elmer Exhibit 18 include several bald factual contentions

25

without any evidentiary support, violating Local Rule 7-5 which requires that

26

“[f]actual contentions made in support of or in opposition to any motion must be

27

28

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1

supported by an affidavit or declaration and by appropriate references to the

2

record.”

3

•

The MPSJ and Elmer Exhibit 18 rely extensively on positions taken by

4

Plaintiffs in their Meet and Confer charts. Both parties agreed long ago that

5

these charts would be protected by FRE 408, and these charts reflect

6

compromise positions taken by Plaintiffs. Thus the assertions in the MPSJ and

7

Elmer Exhibit 18 that rely on Plaintiffs’ Meet and Confer charts should be

8

struck.

9

•

In Elmer Exhibit 18, Defendant relies on various documents and photographs

10

that it did not submit to the Court, violating the requirement that whatever

11

establishes an undisputed fact “must both be in the district court file and set

12

forth in the response.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

13

1026, 1029 (9th Cir. 2001) (emphasis in original).

14

•

In their declarations, Mr. Elmer and Mr. Reeves assert that many architectural

15

elements have been fixed, and purport to provide measurements of the fixed

16

elements, but in most cases, there are no facts in their declarations showing that

17

they have personal knowledge of these assertions, as required by FRCP 56 and

18

FRE 602.

19

•

The Elmer and Reeves Declarations, and Elmer Exhibit 18, include testimony

20

concerning measurements and dimensions of architectural elements that

21

Defendant allegedly has remedied, critiques of Plaintiffs’ expert and opinions as

22

to whether such elements now comply with the ADA. This Court, and

23

Magistrate Judge Larson, have previously held that this evidence constitutes

24

expert testimony. This testimony should be struck pursuant to FRCP 26(a)(2)

25

and 37(c), and FRE 702, because it was not disclosed by the expert designation

26

deadline set by the Court, or at any time since, and because the Elmer and

27

28

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1

Reeves Declarations do not provided foundational facts establishing that they

2

qualify as experts.

3

•

The Reeves Declaration and Elmer Exhibit 18 contain conclusory assertions that

4

should be struck.

5

FACTS

6

This class action alleges that Defendant’s California restaurants contain architectural

7 barriers that deny class members -- persons who use wheelchairs or scooters for mobility -- full

8 and equal enjoyment of the goods and services of the restaurants. Plaintiffs contend that by

9 failing to prevent and remove these barriers, by failing to maintain the accessibility of its

10 restaurants, and by having in place discriminatory practices and policies, Defendant has

11 violated the ADA and California state law. The class seeks injunctive relief under the ADA

12 and state law, and minimum statutory damages under state law.

13

In 2004, at the parties request, the Court appointed a Special Master to conduct access

14 surveys of the restaurants at issue. See October 5, 2004 Order Appointing Special Master

15 (Docket No. 101). The Order Appointing Special Master required the parties to meet and

16 confer to see if they could reach agreement as to a number of items in, or relevant to, the

17 Special Master’s survey reports. Id. at ¶ 7(d). Pursuant to this Order, the parties discussed how

18 to go about the meet and confer process, and during those discussions, both parties

19 contemplated that the meet and confer process would be protected by FRE 408. See Decl. of

20 Amy F. Robertson in Supp. of Pls.’ Mem. In Opp’n to Def.’s Mot. for Partial Summ. J. at ¶ 4-5

21 (filed Nov. 10, 2009) (“Robertson Decl.”).

22

For example, by letter dated July 19, 2005, Defendant’s counsel proposed that the

23 parties add several columns to the Special Master survey reports, including one column for

24 Plaintiffs’ comments, and one for Defendant’s comments. Defendant stated that the statements

25 in these columns “will be subject to Federal Rule of Evidence 408 and these columns will be

26 redacted if the reports were ever submitted to the Court.” See Ex. 8 to Robertson Decl.

27

28

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1

Plaintiffs made a counter-proposal, agreed to by Defendant, involving an exchange of

2 charts with various columns of information. The parties agreed that these charts, as well as the

3 meet and confer process, would be subject to FRE 408.

4

Plaintiffs documented this agreement in their cover letter transmitting Plaintiffs’ first

5 set of meet and confer charts. That cover letter stated: “As the parties have agreed, the contents

6 of this letter, the charts, and the meet and confer process are protected by Rule 408 of the

7 Federal Rules of Evidence.” See Ex. 10 to Robertson Decl.

8

The meet and confer process, including the positions of the parties reflected in the meet

9 and confer charts, reflected compromise positions. There were many instances in which the

10 position Plaintiffs set forth in these charts would not be their litigation position but rather

11 reflected efforts at compromise. Robertson Decl. at ¶ 6.

12

Almost three years ago, Defendant announced its intention to try to fix its restaurants,

13 not because it had seen the error of its ways or had had a change of heart, but rather because of

14 an explicit attempt to seek dismissal of Plaintiffs’ ADA claims based on mootness. Decl. of

15 Richard L. Deleissegues (Docket No. 363-1) ¶ 3; see also Taco Bell Corp.’s Mem. of P. & A.

16 in Support of its Opp’n to Pls.’ Mot. to Compel (Docket No. 363) at 2 (same). Over the years,

17 Defendant has repeatedly claimed to have fixed its restaurants, yet when Plaintiffs have

18 inspected these restaurants, they have found that Defendant has not fixed old violations, and

19 has ignored new violations that have occurred. See Pls.’ Mem. in Opp’n to Def. Taco Bell

20 Corp.’s Mot. for Partial Summ. J. at 2-5 (filed Nov. 10, 2009).

21

In late 2008 and 2009, Plaintiffs’ experts surveyed many of Defendant’s restaurants,

22 once again finding thousands of violations. On May 1, 2009, the deadline for expert

23 designations in effect at that time, Plaintiffs served lengthy and detailed expert reports, which

24 included exhibits identifying each violation that they had observed in their surveys. See

25 Declaration of Eric D. McSwain in Opp’n to Def. Taco Bell Corp.’s Mot. for Partial Summ. J.

26 ¶ 5 & ex. 3 (filed Nov. 10, 2009). Defendant served one expert report, from an expert who had

27 not been to a single restaurant at issue, had not looked at any photographs, and had not

28

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1 reviewed any of the Special Master surveys. See Ex. 1 at 30 and Ex. 2 to Decl. of Timothy P.

2 Fox in Supp. Of Pls.’ Mot. to Strike (“Fox Decl.”) (filed Nov. 10, 2009). There were no

3 measurements in that report, and it had nothing to do with Defendant’s attempts to fix its

4 restaurants. See generally Ex. 2 to Fox Decl. Defendant has not supplemented this report, nor

5 served any subsequent expert report or designation.

6

Defendant sought, and received, an extension of the dispositive motion deadline on the

7 ground that it needed additional time to fix its restaurants. June 18, 2009 Order at 2 (Docket

8 No. 435). In addition, the expert designation deadline was extended to July 2, 2009, and the

9 expert discovery cut-off was extended to August 14, 2009. Id.

10

On July 31, 2009, Plaintiffs served an FRCP 34 notice for the purpose of surveying

11 Defendant’s purported fixes to its restaurants,1 which were still not complete at that time and

12 indeed, have not been completed as of the date of this filing. See MPSJ at 7. Defendant

13 objected to this notice, and the parties submitted the dispute to Magistrate Judge Larson. In the

14 joint submission, Defendant argued that the measurements and other tasks involved in an

15 access survey require an expert, and thus should have been completed by the August 14, 2009

16 expert discovery cutoff. Docket No. 452 at 4 (filed Sept. 15, 2009). Magistrate Judge Larson

17 agreed, sustaining Defendant’s objection to Plaintiffs’ FRCP 34 notice. September 22, 2009

18 Order at 3 (Docket no. 453). This Court subsequently gave leave to Plaintiffs to conduct access

19 surveys, but also confirmed that the measurements and analysis that occur during these surveys

20 require expert testimony. October 22, 2009 Order (Docket no. 461).

21

On October 20, 2009, Defendant filed its Motion for Partial Summary Judgment,

22 arguing that its past fixes, and promises of future fixes, mooted Plaintiffs’ injunctive relief

23 claims under the ADA. Defendant also made 84 other miscellaneous arguments. The evidence

24 submitted by Defendant in support of its Motion consisted of three declarations and

25 corresponding exhibits.

26

27

28

1

Ex. 3 to Fox Decl.

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1

The Reeves Declaration was submitted by Robert Reeves, the General Manager of

2 Maintco Corp. Defendant retained Maintco for two purposes: to conduct semi-annual access

3 surveys of a limited set of architectural elements in Defendant’s California restaurants; and to

4 attempt to fix violations found during Plaintiffs’ expert surveys of the restaurants. Reeves

5 Decl. ¶¶ 1-2.

6

In his declaration, Mr. Reeves purports to identify various fixes that either Taco Bell or

7 Maintco performed at the restaurants at issue, often including specific measurements of the

8 post-fix elements. Nowhere in his declaration does Mr. Reeves explain how he has personal

9 knowledge that these fixes occurred, or of the resulting measurements set forth with great

10 specificity in his declaration.

11

The Elmer Declaration was submitted by Steve Elmer, the Director of ADA

12 Compliance for Taco Bell Corp. Like Mr. Reeves, Mr. Elmer purports to identify various fixes

13 that either Taco Bell or Maintco performed at the restaurants at issue, often including specific

14 measurements of the post-fix elements. Once again, the Elmer Declaration does not provide

15 any facts demonstrating that he has personal knowledge of the fixes and measurements set forth

16 in his declaration.

17

Elmer Exhibit 18 is a table that purports to set forth Taco Bell’s position with respect to

18 violations found by Plaintiffs’ experts during their surveys. See Elmer Decl. ¶ 58. As detailed

19 below, Elmer Exhibit 18 includes factual assertions with no supporting declaration or record

20 cite, cites to documents and photographs not provided to the Court, expert opinions lacking

21 foundation and not disclosed under Rule 26(a)(2), and legal argument.

22

Exhibit 4 to the Declaration of Timothy P. Fox in Support of Plaintiffs’ Motion to

23 Strike (“Fox Exhibit 4 ”) is a table identifying the statements from the MPSJ that Plaintiffs

24 contend should be struck, with the basis for that contention; Fox Exhibit 5 identifies the

25 statements from the Elmer Declaration that Plaintiffs contend should be struck; Fox Exhibit 6

26 identifies the statements from the Reeves Declaration that Plaintiffs contend should be struck;

27 and the column entitled “Plaintiffs’ Procedural Response” in Exhibit 1 to the Robertson

28

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1 Declaration (“Robertson Exhibit 1”) identifies the statements from Elmer Exhibit 18 that

2 Plaintiffs contend should be struck.

3

ARGUMENT

4 I. 5

The MPSJ and Elmer Exhibit 18 Include Several Factual Contentions That Are Not Supported by an Affidavit, Declaration or Appropriate Reference to the Record In Violation Of Local Rule 7-5.

6

The MPSJ and Elmer Exhibit 18 include many unsupported factual contentions. For

7 example, on page 33 of the MPSJ, the following contention has no evidentiary support:

8 “[m]any of McSwain’s site inspections occurred before stores were open for business to the

9 general public and had restocked various condiment bins and other items.”

10

Similarly, on page 1 of Elmer Exhibit 18, Defendant asserts with respect to element 5

11 that it has “eliminated the disputed cross-slope by replacing the portions of the walkway at

12 issue. The current cross-slope is 2% or less.” No citation is provided to support this claim, and

13 nothing in any of the declarations submitted by Defendant purports to establish this factual

14 contention.

15

The unsupported factual assertions in the MPSJ and Elmer Exhibit 18 should be struck

16 because they violate Local Rule 7-5, which requires that “[f]actual contentions made in support

17 of or in opposition to any motion must be supported by an affidavit or declaration and by

18 appropriate references to the record.” In Fox Exhibit 4, and Robertson Exhibit 1, these

19 unsupported assertions are identified in with the following language: “This statement is not

20 supported by an affidavit, declaration, or appropriate reference to the record. See Motion to

21 Strike at Section I. Loc. Rule 7-5.”

22 II. The MPSJ and Elmer Exhibit 18 Include Citation to Statements Made in Compromise Negotiations in Violation of FRE 408.
23 As set forth above, beginning in 2005, Plaintiffs provided Defendant with Meet and
24 Confer charts, attached as Exhibit 2 to the Hikida Declaration, identifying the violations that
25 Plaintiff alleged existed at the restaurants, and setting forth Plaintiffs’ position as to what fixes
26 should be made. In many cases, the positions set forth in these charts were not Plaintiffs’
27

28

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1 litigation position, but rather reflected their efforts at compromise. The parties agreed that

2 these charts would be protected by FRE 408. Robertson Decl. ¶ 6.

3

In the MPSJ and Elmer Exhibit 18, Defendant uses Plaintiffs’ Meet and Confer charts

4 to attempt to establish liability, and to show purported contradictions between positions taken

5 by Plaintiffs in those charts and Plaintiffs’ current position.

6

For example, on page 12 of its MPSJ, Defendant states:

7

Even if the Court does not find that Taco Bell’s modifications have rendered certain

issues moot, plaintiffs failed to challenge as noncompliant walkways that exceeded

8

3.0% cross-slope at store numbers 3027 (3.3%) and 3471 (3.8%) in their 2006 Meet

and Confer Charts. The apparent reason why plaintiffs failed to challenge such

9

cross-slope is that plaintiffs determined that the cross-slope did not deprive plaintiffs of

“full and equal enjoyment” of the services provided at the Taco Bell stores. These

10

omissions constitute evidence that such cross-slope in accessible walkways did not

deprive plaintiffs of “full and equal enjoyment” of the services provided at the Taco

11

Bell stores.

12 (Emphasis in original.)

13

This is a clear violation of FRE 408, which unequivocally prohibits statements made in

14 compromise negotiations to be used to prove “invalidity of . . . a claim . . . or to impeach

15 through a prior inconsistent statement or contradiction.” FRE 408(a). That is precisely what

16 Defendant is doing -- it is using statements made in Plaintiffs’ Meet and Confer charts to try to

17 show that Plaintiffs’ claims are invalid. For this reason, each assertion in the MPSJ and Elmer

18 Exhibit 18 that relies on, or cites to, Plaintiffs’ Meet and Confer charts should be struck.

19

Statements that should be struck for violation of FRE 408 are set forth in Fox Exhibit 4

20 and Robertson Exhibit 1 with the following language: “Reliance on meet and confer charts is

21 inappropriate under Rule 408 and agreement of the parties.”

22 III. The MPSJ and Elmer Exhibit 18 Cite Documents and Photographs That Defendant Did Not Submit to the Court.
23 The MPSJ and Elmer Exhibit 18 cite documents and photographs that Defendant did
24 not submit to the Court. For example, on page 309 of Elmer Exhibit 18, Defendant states:
25 “Taco Bell has relocated the drink lid dispenser by mounting it to the front of the drink table
26 immediately below the drink table itself. The vertical tri-level drink lid dispenser is usable via
27

28

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1 a side reach of at least 9 inches AFF. (See TBGT233942.)” Defendant, however, did not

2 submit a document Bates numbered TBGT233942 to the Court.

3

The Ninth Circuit has held that whatever establishes an undisputed fact “must both be

4 in the district court file and set forth in the response.” Carmen v. San Francisco Unified

5 School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (emphasis in original). Factual contentions

6 in the MPSJ and Elmer Exhibit 18 that cite to documents or photographs that Defendant did

7 not submit are not in the record, and thus these contentions should be struck. In Fox Exhibit 4

8 and Robertson Exhibit 1, these contentions are identified with the following language:

9 “Document(s) or photograph(s) cited by Taco Bell not provided to the Court.”

10 IV. The Elmer and Reeves Declarations Include Many Assertions for Which No

Foundational Facts Are Provided Establishing Personal Knowledge in Violation of

11

FRCP 56 and FRE 602.

12

In their declarations, Both Mr. Reeves and Mr. Elmer assert that Defendant or Maintco

13 have fixed various architectural elements, and in many cases purport to provide the very

14 specific measurements of the fixed elements. With very few exceptions, however, they provide

15 no basis for having personal knowledge of the factual assertions they make.

16

Compare, for example, paragraphs 45 and 52 of the Elmer Declaration. In paragraph

17 45, Mr. Elmer states that “[o]ver the past few months, I have personally measured the

18 horizontal projection or ‘run’ of the element at store #757 depicted in EMP008393, which I

19 construe to be a curb ramp, as 11' 2-1/2" in length.” Here Mr. Elmer provided foundational

20 facts demonstrating that he has personal knowledge of the measurement set forth in this

21 paragraph -- he took the measurement himself.

22

By contrast, in paragraph 52, Mr. Elmert asserts that “Taco Bell also relocated the toilet

23 seat cover dispensers in both restrooms [in store 3390] to make them usable without having to

24 reach over a toilet tank.” He provides no facts as to how he has knowledge that the change he

25 describes actually occurred.

26

FRCP 56(e)(1) provides that “[a] supporting or opposing affidavit must be made on

27 personal knowledge, set out facts that would be admissible in evidence, and show that the

28 affiant is competent to testify on the matters stated.” FRE 602 requires that “[a] witness may

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1 not testify to a matter unless evidence is introduced sufficient to support a finding that the

2 witness has personal knowledge of the matter.” Many of the factual assertions in the Elmer and

3 Reeves Declarations violate FRCP 56(e)(1) and FRE 602 because the Declarations do not set

4 forth a foundation establishing that these declarants have personal knowledge of their

5 assertions.

6

A virtually identical issue was considered by the court in Johnson v. Kriplani, No. Civ.

7 2:06-CV-02054 JAM GGH, 2008 WL 2620378 (E.D. Cal. July 2, 2008), a disability access

8 case in which the plaintiff brought suit under the ADA and California state law based on

9 alleged access violations at a fast food restaurant. The defendant moved for summary

10 judgment, and in support of his opposition, the plaintiff submitted his declaration with

11 measurements relating to running slope, cross-slope and the restaurant’s restroom. The

12 defendant moved to strike portions of the declaration on the ground that the plaintiff failed to

13 lay a proper foundation for his personal knowledge with respect to these measurements. The

14 court granted the motion to strike, holding: “Because [plaintiff’s] declaration does not state that

15 he made these measurements himself or specify how he acquired this knowledge, it is unclear

16 whether [the plaintiff] has personal knowledge of these facts or has merely been advised of

17 them by others. . . Thus, because [the plaintiff] did not state that he was personally involved in

18 any of the measurements to which he testifies, and because personal knowledge cannot be

19 inferred, the statements in [the plaintiff’s] declaration referencing such measurements are

20 stricken.” Id. at *3 (citations omitted).

21

As in Johnson, factual assertions in the Elmer and Reeves Declarations for which no

22 foundation is provided establishing personal knowledge should be struck. In Fox Exhibits 5

23 and 6, these assertions are identified with the following language: “No evidence that this

24 statement is based on personal knowledge.”

25 V. 26

Expert Testimony In The Elmer And Reeves Declarations And Elmer Exhibit 18 Should Be Struck Because It Was Not Disclosed By The Expert Designation Deadlines and Because The Declarations Lack Foundation.

27

As described above, in connection with Plaintiffs’ request under Rule 34 to survey

28 Defendant’s restaurants, both Magistrate Judge Larson and this Court held that the

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1 measurements and other tasks performed during such surveys require expert testimony. Sept.

2 22, 2009 Order at 3 (Docket no. 453); October 22, 2009 Order (Docket no. 461). The Elmer

3 and Reeves Declarations and Elmer Exhibit 18 all contain this type of evidence. For example,

4 these documents contain the following assertions:

5

(1) “At store #22871, Taco Bell has relocated the urinal shield closer to the urinal

so that the clear width at the urinal is 36-5/8 inches instead of the former 38-7/8

6

inches measurement. Based on the reduction of the clear width at the urinal of

2-1/4 inches, the clear floor space at the lavatory has increased by exactly that

7

same number, which means that the prior clear floor space width at the lavatory

has increased by 2-1/4 inches from 34-3/8 inches to 36-5/8 inches, which

8

exceeds the 36 inches standard for maneuvering clearance in an alcove based on

a forward approach. (ADAAG 4(e).)” Reeves Decl. ¶ 144.

9

(2) “In reviewing [Plaintiffs’ expert’s] methodology for measuring the dimensions

10

of a diagonal or angled van accessible parking space or standard accessible

parking space and adjoining access aisle, [Plaintiffs’ expert’s] methodology

11

would require a significant amount of additional space, depicted in red, based on

his apparent methodology. Attached hereto as Exhibit "12" is a chart depicting

12

[Plaintiffs’ expert’s] measurement methodology for measuring the dimensions

of a diagonal 45 degree van accessible parking space and access aisle. Attached

13

hereto as Exhibit ‘13’ is a chart depicting [Plaintiffs’ expert’s] measurement

methodology for measuring the dimensions of a diagonal ‘saw-tooth’ style of

14

accessible parking space and access aisle.” Elmer Decl. ¶ 19 (emphasis in

original).

15

(3) “The ADAAG provides that an accessible route can be 32 inches wide for 24

16

inches of depth. (ADAAG 4.3.3, 4.13.5, Fig. 24(e).) At store #3904, the base of

the advertising stand at issue created a change in level of 1/4 inch or less, which

17

is compliant under the ADAAG. (ADAAG Fig. 7(c).) Thus, the change in level

due to the base of the advertising stand did not deprive any disabled customer of

18

the full and equal enjoyment of Taco Bell's services.” Elmer Decl. ¶ 25.

19

(4) “Over the past few months, I have personally measured the horizontal projection

or ‘run’ of the element at store #757 depicted in EMP008393, which I construe

20

to be a curb ramp, as 11' 2-1/2" in length.” Elmer Decl. ¶ 45.

21

(5) “Taco Bell has relocated the toilet paper dispenser so that its centerline is 36

inches from the rear wall. This modification satisfies the unspecified ‘within

22

reach’ current ADAAG standard and/or the proposed ADAAG standard

depicted in Fig. 604.7.” Elmer Exhibit 18 at 4.

23

(6) “The hand dryer does not obstruct the clear floor space at the water closet. (See

24

ADAAG Fig. 28.) To the extent that [Plaintiffs’ expert] contends that the

ADAAG requires a 60 inch width surround a water closet as measured from the

25

side wall closest to a water closet, that view is wrong. As depicted in Fig. 28 of

the ADAAG, fixtures such as lavatories are depicted as compliant even if their

26

side edge is 18 inches minimum to the centerline of the water closet. Thus, the

actual distance between the side edge of a lavatory and the side edge of the

27

water closet is far less than 18 inches, and still compliant. The same reasoning

applies to the hand dryer at issue.” Elmer Exhibit 18 at 20.

28

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1

Through their Rule 34 request, Plaintiffs sought simply to take measurements of

2 elements in Defendant’s restaurants, a request which was held to require expert testimony. The

3 Elmer and Reeves Declarations and Elmer Exhibit 18 are replete with precisely these types of

4 measurements, as shown by examples (1), (3), (4) and (5) above.

5

These Declarations and Elmer Exhibit 18 offer much more substantive expert analysis

6 as well. They offer expert critiques of Plaintiffs’ expert’s methodology and conclusions

7 (examples (2) and (6)) as well as expert interpretation of accessibility regulations (examples

8 (3), (5) and (6)). None of the expert assertions set forth in the Elmer and Reeves Declarations

9 and Elmer Exhibit 18 was disclosed in connection with the expert disclosure or discovery

10 deadlines in this case.

11

Further, neither the Elmer Declaration nor the Reeves Declaration set forth facts

12 establishing that these declarants qualify as expert on the subjects of their testimony.

13

FRCP 26(a)(2)(C) requires a party to disclose expert testimony at the time ordered by

14 the Court. FRCP 37(c)(1) provides that if a party fails to provide information or identify a

15 witness as required by Rule 26(a), the party is not allowed to use that information or witness to

16 supply evidence on a motion unless the failure was substantially justified or is harmless.

17 Defendant bears the burden of showing that its failure to designate experts was justified or

18 harmless. See Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.

19 2001); Green v. Baca, 226 F.R.D. 624, 655 (C.D. Cal. 2005).

20

Defendant cannot meet its burden of showing that its utter failure to serve expert

21 designations addressing the expert topics covered in the Elmer and Reeves Declarations and

22 Elmer Exhibit 18 was justified. Nothing prevented Defendant from timely serving an expert

23 designation setting forth its interpretation of accessibility regulations, or from serving an expert

24 rebuttal designation critiquing Plaintiffs’ experts’ reports.

25

Nor was it justified in failing to submit an expert designation with the measurements of

26 the fixes it purportedly had made. Although it had not completed all of its remediation efforts

27 by the July 2, 2009 expert designation deadline, by its own admission, it had by that date

28 “incurred over $8 million in ADA remediation costs . . .” See Notice of Mot. and Mot.

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1 For Continuance of Case Management and Scheduling Order Deadlines at 25 (Docket no. 421,

2 filed May 29, 2009). Instead of doing nothing, it should have “issued a preliminary report to be

3 supplemented after” it completed its remediation efforts, or “asked for an extension of the

4 discovery deadline.” Yeti By Molly, 259 F.3d at 1106.

5

Defendant also cannot demonstrate that its failure to serve expert designations was

6 harmless. By failing to do so, Defendant deprived Plaintiffs of the opportunity to designate

7 rebuttal experts on these topics, as well as to depose Defendant’s experts on the topics that

8 should have been disclosed in the designations. See, e.g., Dos Amigos Distribs., Inc. v.

9 Cadbury Bebidas, S.A. de C.V., Civil No. 05cv0151-L(POR), 2008 WL 3844062, *4 (S.D. Cal.

10 Aug. 14, 2008) (holding that failure to serve a supplemental expert report harmed the opposing

11 party by depriving it of the opportunity to conduct relevant discovery and designate a rebuttal

12 expert).

13

Finally, the Elmer and Reeves Declarations are deficient because they fail to set forth

14 facts establishing that these declarants qualify as experts as required by FRE 702. See Talada

15 v. City of Martinez, --- F. Supp. 2d ----, 2009 WL 2941514, *7 n.4 (N.D. Cal. Sept. 10, 2009)

16 (striking purported expert declaration in part because it failed to set forth expert’s qualifications

17 as required by FRE 702). Indeed, Mr. Reeves admitted in his deposition that he had never

18 received any training relating to the Americans with Disabilities Act, and his training for the

19 entire Taco Bell barrier removal project was limited to accompanying Steve Elmer to a few

20 Taco Bell restaurants and reviewing a checklist. Robertson Decl. Ex. 15 at 12:8-12; 27-30.

21

The assertions set forth in the Elmer and Reeves Declarations and Elmer Exhibit 18 that

22 Plaintiffs contend should be struck as undisclosed expert testimony lacking foundation are

23 identified in Fox Exhibits 4, 5 and 6, and in Robertson Exhibit 1, as “Testimony constituting

24 expert opinion that was not the subject of disclosures pursuant to Rule 26(a)(2).”

25 VI. Conclusory Assertions in the Reeves Declaration and Elmer Exhibit 18 Should be Struck.
26 An assertion is conclusory if it is “unsupported by factual data.” Hansen v. United
27 States, 7 F.3d 137, 138 (9th Cir. 1993). A summary judgment motion cannot be based on
28

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1 conclusory assertions. See Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990) (“Such

2 conclusory assertions are wholly insufficient to sustain either the defendants’ burden or the

3 district court’s grant of summary judgment.”).

4

The Reeves Declaration and Elmer Exhibit 18 include a number of conclusory

5 assertions. For example, paragraph 29 of the Reeves Declaration asserts that “[a]t store #2961,

6 Maintco has relocated the garbage can away from both access aisles and taken steps to ensure

7 that it does not return.” The Declaration, however, fails to provide any facts as to what those

8 “steps” were, and thus this assertion is conclusory.

9

The assertions set forth in the Reeves Declaration and Elmer Exhibit 18 that Plaintiffs

10 contend should be struck as conclusory are identified in Fox Exhibit 6 and Robertson Exhibit 1

11 as “Conclusory assertion.”

12

13

CONCLUSION

14

For the reasons set forth above, Plaintiffs respectfully request that their Motion to Strike

15 be granted.

16

17

18

Respectfully submitted,

19

FOX & ROBERTSON, P.C.

20

By: /s/ Timothy P. Fox

21

Timothy P. Fox, Cal. Bar No. 157750

Amy F. Robertson, pro hac vice

22

104 Broadway, Suite 400

Denver, Colorado 80203

23

Tel: (303) 595-9700

Fax: (303) 595-9705

24

25 November 10, 2009

Attorneys for Plaintiffs

26

27

28

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1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
104 Broadway, Suite 400
3 Denver, CO 80203
Tel: (303) 595-9700
4 Fax: (303) 595-9705
Email: tfox@foxrob.com
5
LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823
835 Mandana Blvd.
7 Oakland, CA 94610
Tel: (510) 419-0940
8 Fax: (501) 419-0948
Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

OAKLAND DIVISION

13 FRANCIE E. MOELLER et al,

14

Plaintiffs,

15 v.

16 TACO BELL CORP.,

17

Defendant.

Case No. C 02 5849 PJH JL
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANT TACO BELL CORP.’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Hearing Date: December 16, 2009

Time:

9:00 a.m.

18

19

20

21

22

23

24

25

26

27

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TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUE TO BE DECIDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. TBC’s Pattern of Changing and Recurring Barriers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. TBC’s Changing and Ineffective Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
a. Operations Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 i. TBC’s Operations Policies are Inconsistent and Contradictory. . . . . . . . . 5 ii. TBC’s Operations Policies Are Not Being Used At Its Restaurants. . . . . 6 iii. TBC’s Operations Policies Are Facially Deficient. . . . . . . . . . . . . . . . . . . 8 iv. TBC’s Most Recent Policies Violate the California Retail Food Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
b. Maintco’s Semi-Annual Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 c. TBC’s New Construction Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 d. TBC’s Customer Service Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PROCEDURAL STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 OVERVIEW OF PLAINTIFFS’ EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. Standard of Review: Taco Bell’s MPSJ Does Not Satisfy Rule 56 . . . . . . . . . . . . . . . . . 12 II. Plaintiffs’ Claims are Not Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. Legal Standard: TBC Has A Heavy Burden to Demonstrate
that it is Absolutely Clear That Its Allegedly Wrongful Behavior Will not Recur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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B. The Ninth Circuit Has Held that The Voluntary Cessation Doctrine Bars Mootness In a Case Almost Identical to This One . . . . . . . . . . . . . . . . . . 16
C. Because Elements in Taco Bell Restaurants Change Frequently, TBC Cannot Satisfy the Heavy Burden to Show that Violations Will Not Recur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. An Injunction Continues to Be Necessary for the Same Reasons Listed in the 2007 Mootness Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. TBC Has Not Remedied All ADA Violations . . . . . . . . . . . . . . . . . . . . 17
2. TBC Has Not Demonstrated that It Can Maintain Compliance. . . . . . . . 18
3. TBC Has Not Demonstrated That it Can Ensure Compliance in New and Acquired Stores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
E. TBC Still Contests Liability and Only Attempted to Reform Long After Being Sued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
F. Cases Cited by TBC Cannot Overcome The Force of Supreme Court and Ninth Circuit Precedent Demonstrating Plaintiffs’ Claims Are Not Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. TBC’s Single-Store Mootness Cases Are Distinguishable. . . . . . . . . . . . 24
2. TBC Bears the Burden to Show That No Effective Relief can be Ordered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. TBC’s Citation to Doran Is Apparently an Impermissible Attempt to Shift the Burden of Demonstrating Mootness . . . . . . . . . . . . 27
III. Plaintiffs’ Responses to TBC’S Non-Mootness Defenses . . . . . . . . . . . . . . . . . . . . . . . . 28
A. Any References to or Attempts to Draw Inferences from Plaintiffs’ Meet and Confer Charts Are Improper and in Violation of Rule 408. . . . . . . . . 28
B. Many of TBC’s Non-Mootness Defenses Are Meritless . . . . . . . . . . . . . . . . . . . 29
1. Customer Service Cannot Excuse Violations of the ADAAG . . . . . . . . . 29
2. TBC Does Not Provide Any Evidence Concerning The Position of the City of La Mirada. . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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3, 60 & 63.

TBC Has Not Satisfied its Burden of Proof to Demonstrate that Remedies are Technically Infeasible. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4. In New Construction, TBC Is Required to Provide An Accessible Route Within the Boundary of the Site from Public Transportation and Public Streets or Sidewalks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

5. TBC’s Assertions with Respect to One Element Each At Stores 4622 and 20310 Are Disputed Issues of Fact . . . . . . . . . . . . . . . . . . . . 33

6 & 7.

The Parties Agreed That a Maximum 6.6% Running Slope and 3% Cross Slope Would Be Acceptable. . . . . . . . . . . . . . . . . . . . . . . . . . . 33

11 & 12. The ADAAG Requires Handrail Extensions At the Top and Bottom of Ramps In the Direction of The Ramp. . . . . . . . . . . . . . . . . . . 34

13. Plaintiffs’ Expert Used the Proper Method to Measure Ramp Landings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

15. The Ramp At Store 22691 Requires A Handrail. . . . . . . . . . . . . . . . . . . 35

17. The ADAAG Requires that Accessible Parking Be On the Shortest Route of Travel from Adjacent Parking to an Accessible Entrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

18. The ADA Requires Access Aisles to Extend the Full Length of Accessible Parking Spaces. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

23. The ADAAG Requires that Parking Signs Be Visible Over Parked Vehicles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

37. The Threshold at the Doorway in Store 176 Violates the ADAAG. . . . . 36

38. The Parties Agreed to the Applicable Standard for Floor Mats . . . . . . . 37

39. Self-Service Items Must be Accessible to People with Disabilities. . . . . 37

42. Accessible Counters Must Remain Unobstructed. . . . . . . . . . . . . . . . . . 38

46. When A Side Reach is Over an Obstruction, the Height of the Obstruction is Limited to 34 Inches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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47. Plaintiffs’ Expert Properly Measured Reach Ranges at Condiment and Tableware Dispensers . . . . . . . . . . . . . . . . . . . . . . . . . . 39

49. All of the Site Inspections Were Planned at Least A Week In Advance And Were Accompanied by TBC Personnel. . . . . . . . . . . . . 39

50. Tray Slides at Drink Dispensers are Limited to 34 Inches in Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

57. Plaintiffs Have Standing to Challenge the Force Required to Use Doors and Hardware. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

58. Plaintiffs’ Expert Properly Measured the Force Necessary to Open Doors and Operate Bolts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

62. The California Health Code Does not Permit TBC to Remove Restroom Door Closers; The Required Push Side Clearance is 48 Inches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

65 & 83.

Moveable Objects May Not Obstruct Required Accessible Routes and Clear Floor Space and TBC Is Required to Maintain the Accessibility of its Restaurants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

66 & 81. Forward Reach is Not Permitted To Extend Beyond the Available Toe Space. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

67. Restroom Floors May Have a Maximum Slope of 2%. . . . . . . . . . . . . . . 46

70. The ADAAG Only Permits Lavatories to Encroach in the Clear Floor Space Around Toilets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

72. The ADAAG Requires The Front End of Side Grab Bars To Be a Minimum of 54 Inches from the Rear Wall. . . . . . . . . . . . . . . . . . . 47

73 & 74.

The ADAAG Requires The Dispensing Point of Toilet Paper Dispensers to Be A Maximum of 36 Inches from the Rear Wall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

78 & 79. The ADAAG Requires That Hot Water and Drain Pipes Be Insulated or Configured to Prevent Contact . . . . . . . . . . . . . . . . . . . . . . 48

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C. TBC’s Arguments That Do Not Contain References to the Elements to Which They Apply Are Improper Requests for Advisory Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
D. Many of TBC’s Single-Store/Single-Element Arguments Suffer from the Same Legal and Procedural Shortcomings As Discussed Above . . . . 49
E. TBC’s Arguments That Address Title 24 Standards Are Premature. . . . . . . . . . 50

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TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Adelman v. Acme Markets Corp., 1996 WL 156412 (E.D. Pa. Apr. 3, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
American Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc) (S.D. Cal. June 14, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Antoninetti v. Chipotle Mexican Grill, Inc., 2008 WL 111052 (S.D. Cal. Jan. 10, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Armster v. United States Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Association of Disabled Americans, Inc., v. Key Largo Bay Beach, LLC, 407 F. Supp. 2d 1321 (S.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Blake v. Southcoast Health System, Inc., 145 F. Supp. 2d 126 (D. Mass. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Bleakly v. Sierra Cinemas, Inc., 2008 WL 109377 (E.D. Cal. Jan. 8, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Blue Ocean Preservation Society v. Watkins, 767 F. Supp. 1518 (D. Haw. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Bragdon v. Abbott, 524 U.S. 624, 646 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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Brother v. CPL Investments, Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Carmen v. San Francisco Unified School District, 237 F.3d 1026 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Caruso v. Blockbuster-Sony Music Entertainment Center, 193 F.3d 730 (3d. Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Celano v. Marriott Int'l, Inc., 2008 WL 239306 (N.D. Cal. Jan 28, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 43
Chapman v. Pier 1 Imports, 2006 WL 1686511 (E.D. Cal. June 19, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Cherry v. City College of San Francisco, No. C 04-04981 WHA (N.D. Cal. Jan. 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Clavo v. Zarrabian, 2004 WL 3709049 (C.D. Cal. May 17, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 30
Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707 (D. Colo. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078 (N.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Donald v. Café Royale, Inc., 218 Cal. App. 3d 168 (Cal. Ct. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Dowling v. MacMarin, Inc., No. C-94-2899 WHO (N.D. Cal. Sept. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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Eiden v. Home Depot USA, Inc., 2006 WL 1490418 (E.D. Cal. May 26, 2006) . . . . . . . . . . . . . . . . . . . . . . . . 22, 43, 44-45
Environmental Protection Information Center v. Pacific Lumber Co., 430 F. Supp. 2d 996 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23
Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15, 23
Funai Electric Co., Ltd. v. Daewoo Electronics Corp., 593 F. Supp. 2d 1088 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Gasper v. Marie Callender Pie Shops, Inc., No. CV 05-1435 CBM (Ssx) (C.D. Cal. June 27, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 27
Grove v. De La Cruz, 407 F. Supp. 2d 1126 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Harris v. Stonecrest Care Auto Center, LLC, 472 F. Supp. 2d 1208 (S.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Heinemann v. Copperhill Apartments, 2007 WL 4249842 (E.D. Cal. Nov. 30, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hubbard v. Kayo Oil Co., No. 05CV2076 BEN (BLM) (S.D. Cal. Dec. 22, 2006) . . . . . . . . . . . . . . . . . . . . . . 24-25
Hubbard v. Kayo Oil Co., 304 Fed. Appx. 515 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Hubbard v. Sobreck, LLC, No. 04cv1129 WQH (S.D. Cal. Aug. 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14
Johnson v. Kripliani, 2008 WL 2620378 (N.D. Cal. July 2, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 50

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Jones v. Wild Oats Markets, Inc., No. 04-1018-WQH (WMc) (S.D. Cal. Nov. 29, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 45
Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Longstreth v. Maynard, 961 F.2d 895 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Maldonado v. Morales, 556 F.3d 1037 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Mannick v. Kaiser Foundation Health Plan, Inc., 2006 WL 2168877 (N.D. Cal. July 31, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362 (N.D. Ga. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Martinez v. Longs Drug Stores Corp., 281 Fed. Appx. 712 (9th Cir. June 5, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Martinez v. Home Depot USA, Inc., 2007 WL 926808 (E.D. Cal. Mar. 27, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 48
Massachusetts v. E*Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Mendez-Aponte v. Puerto Rico, --- F. Supp.2d ---, 2009 WL 3063400 (D. P.R. Sept. 16, 2009) . . . . . . . . . . . . . . . . . . . 13
Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 42
Moeller v. Taco Bell Corp., 2005 WL 1910925 (N.D. Cal. August 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Moeller v. Taco Bell, 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Molski v. Foster Freeze Paso Robles, No. CV 04-03780 DDP (JWJx) (C.D. Cal. May 10, 2007) . . . . . . . . . . . . . . . . . . . . . . . 25

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Nissan Fire & Marine Insurance Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 27, 31
Ostendorf v. Dawson County Corrections Board, 2002 WL 31085085 (D. Neb. Sept. 18, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pereira v. Ralph’s Grocery Co., 329 Fed. Appx. 134 (9th Cir. July 7, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 23
Pereira v. Ralph’s Grocery Co., 07-cv-00841 (C.D. Cal. Oct. 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Polo Fashions, Inc. v. Dick Bruhn, Inc., 793 F.2d 1132 (9th Cir.1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rodriguez v. Ralph’s Grocery Co., No. 07-CV-02311-R (PLAx) (C.D. Cal. Nov. 7, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Rosemere Neighborhood Association v. U.S. Environmental Protection Agency, 581 F.3d 1169 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 20, 23, 28
Sanford v. Del Taco, Inc., 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp.2d 93 (D.D.C. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21, 22
Stringer v. White, 2008 WL 344215 (N.D. Cal. Feb. 6, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
United States v. Generix Drug Corp., 460 U.S. 453 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Oregon State Med. Soc’y, 343 U.S. 326 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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United States v. W.T. Grant, 345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Watanabe v. Home Depot USA, Inc., 2003 WL 24272650 (C.D. Cal. July 14, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
White v. Divine Investments, Inc., 2005 WL 2491543 (E.D. Cal. Oct. 7, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Wilson v. Haria and Gogri Corp., 2007 WL 851744 (E.D. Cal. Mar. 22, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Wilson v. Norbreck LLC, No. Civ. S-04-690 DFL JFM (E.D. Cal. Sept. 15, 2006) . . . . . . . . . . . . . . . . . . . . . 45, 48
Statutes
The Americans with Disabilities Act 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 30 42 U.S.C. § 12182(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 42 U.S.C. § 12182(b)(1)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12183(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 45 42 U.S.C. § 12186(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 U.S.C. § 12188(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 U.S.C. § 12206(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
The Rehabilitation Act 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
The California Disabled Persons Act Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10
The Unruh Civil Rights Act Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10

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Regulations and Other Authorities

Nondiscrimination on the Basis of Disability By Public Accommodations and in Commercial Facilities, 28 C.F.R. pt. 36
§ 36.211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim § 36.406(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Americans With Disabilities Act Accessibility Guidelines, 28 C.F.R. pt. 36, app A § 2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 § 3.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 46 § 4.1.2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 § 4.1.2(5)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 § 4.1.6(1)(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 § 4.2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 45 § 4.2.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 38, 39 § 4.3.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 46 § 4.5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 § 4.5.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 § 4.6.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 § 4.6.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 § 4.8.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 § 4.8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 § 4.8.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35 § 4.13.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 § 4.13.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 § 4.13.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 § 4.13.11(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 § 4.16.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 § 4.19.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 § 4.22.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 § 4.27.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 § 4.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 § 5.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 § 5.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 § 7.2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Figure 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46 Figure 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39 Figure 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Figure 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Figure 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-47 Figure 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Figure 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Figure 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 ADAAG Appx. at A1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
28 C.F.R. pt. 36, app. B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 42, 45
ADA Technical Assistance Manual § II-3.7000 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36, 43, 45
The Americans with Disabilities Act: Technical Assistance Updates from the U.S. Department of Justice, Design Details: Van Accessible Parking Spaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
California Retail Food Code Cal. Health & Safety Code § 114276(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20, 41-42
Title 24 of the California Code of Regulations, Cal. Code Regs. tit. 24 (1981) § 2-7101(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Title 24 of the California Code of Regulations, Cal. Code Regs. tit. 24 (2008) § 1115B.8.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Rules
The Federal Rules of Civil Procedure Rule 26(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Rule 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 49 Rule 56(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 49
The Federal Rules of Evidence Rule 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Local Rules, The Northern District of California Local Rule 7-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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1

INTRODUCTION

2

Defendant Taco Bell Corp. (“TBC”) cannot satisfy its “heavy burden” to show that its

3 undisputed violations of the Americans with Disabilities Act cannot “reasonably be expected to

4 recur.” See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

5 (2000) (citations omitted). To the contrary, there is substantial evidence that ADA violations

6 commonly recur in TBC’s restaurants and that TBC has not taken the steps or implemented the

7 policies necessary to remedy and prevent them.

8

TBC’s repeated, failed attempts to comply with decades-old law forms a proper basis

9 for the issuance of injunctive relief. As in any civil rights pattern and practice case, the liability

10 trial in this matter will focus on TBC’s general policies and conduct, not on individual victims

11 or individual items in each restaurant. See Int’l Bhd. of Teamsters v. United States, 431 U.S.

12 324, 360-61 (1977). If Plaintiffs prevail in proving this pattern and practice at trial, then the

13 injunction will need to address changes in corporate policies, training, and culture. One reason

14 such changes will be necessary is because TBC -- by its repeated, unsuccessful attempts to

15 make changes to its restaurants in order to gain a litigation advantage -- has proven itself

16 unwilling and incapable of complying with state and federal law. For this reason, an injunction

17 under the ADA remains necessary and Plaintiffs’ ADA claims are not moot.

18

ISSUE TO BE DECIDED

19

Has TBC rendered moot Plaintiffs’ request for injunctive relief under the Americans

20 with Disabilities Act?

21

FACTS

22

Plaintiffs filed this case in December, 2002, alleging that TBC’s California corporate-

23 owned restaurants contained barriers to individuals who used wheelchairs or scooters in

24 violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

25 (“ADA”), the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the “CDPA”),

26 and/or California’s Unruh Civil Rights Act, id. § 51 et seq. (“Unruh”). In February, 2004, the

27 court certified a class of individuals who used wheelchairs or scooters who had encountered

28
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1 barriers at the covered Taco Bell restaurants since December 17, 2001. Moeller v. Taco Bell

2 Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004).

3 1. TBC’s Pattern of Changing and Recurring Barriers.

4

In the summer of 2004, with its genesis in amicable but ultimately unsuccessful

5 settlement negotiations, the parties jointly retained Bob Evans of Equal Access, Inc., to survey 6 20 of the stores at issue. Robertson Decl. ¶ 2.1 In October of that year, pursuant to the parties’

7 joint request, the Court appointed Mr. Evans special master. Docket No. 101. The Court, after

8 setting forth the duties of the Special Master, required the parties to meet and confer

9 concerning, among other things, whether there were violations of federal or state law and how

10 to resolve them. Id. at 10.

11

Between the fall of 2004 and June 30, 2005, the Special Master surveyed the stores and

12 reported back to the parties. See Docket Nos. 216-40. In the summer of 2005, the parties got

13 together and devised a system for addressing the findings of the Special Master. The parties

14 agreed that Plaintiffs would prepare “Meet and Confer Charts,” identifying the elements that

15 Plaintiffs asserted -- for the purpose of the meet and confer process -- were out of compliance

16 and the applicable standard. See, e.g., Robertson Decl. ¶ 6; Ex. 9 at 1. TBC committed to go 17 through all of the elements and provide its position on each. Robertson Ex. 9 at 2.2

18

Despite this commitment, TBC never made any serious attempt to work with Plaintiffs

19 to narrow the issues. Rather, as TBC asserts in the present motion, it started attempting to fix

20 things “without waiting for resolution of such matters.” Def. Taco Bell Corp.’s Notice of

21 Motion and Motion for Partial Summary Judgment (“MPSJ,” Docket No. 458) at 2. In fact,

22 TBC repeatedly made clear that its goal was not to work with Plaintiffs to resolve the litigation

23

24 1

All declarations submitted by the parties in support of and opposition to the present

motion will be referred to by the declarant’s last name and the abbreviation “Decl.” Exhibits to 25 declarations will be referred to by the declarant’s last name and “Ex.”

26 2

Because this was part of a settlement process, Plaintiffs made clear that they were not

conceding for purposes of litigation that elements excluded from the meet and confer charts

27 were compliant, Robertson Ex. 7 at 1, and the parties agreed that the charts and the meet and

confer process would be protected by Rule 408 of the Federal Rules of Evidence. Robertson

28 Exs. 8 at 2 & 10 at 1.

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1 or even narrow the issues, but rather to moot out Plaintiffs’ claims. For example, in-house

2 counsel for TBC asserted that “[t]he purpose of [TBC’s] comprehensive modifications was to

3 render the federal and state injunctive relief claims in the instant action subject to the mootness

4 doctrine.” Decl. of Richard L. Deleissegues (Docket No. 363-1) ¶ 3; Docket No. 363 at 2.

5

Toward this end, when Plaintiffs moved for partial summary judgment in 2007, TBC

6 argued that Plaintiffs’ claims as to the challenged elements were moot. Docket No. 260 at 34-

7 39. The Court rejected this argument holding that, even if certain elements were in

8 compliance, the Court could “order effective relief as to those elements in the form of an

9 injunction requiring TBC to (1) remedy the remainder of these elements that are out of

10 compliance; (2) maintain those elements in a compliant state; and (3) ensure that those

11 elements comply in any new or acquired restaurants.” Moeller v. Taco Bell Corp., 2007 WL

12 2301778, at *8 (N.D. Cal. Aug. 8, 2007). TBC moved for reconsideration, raising many of the

13 arguments it now raises in its MPSJ. Docket No. 319. The Court denied that motion as well.

14 Docket No. 367.

15

In late 2007 and throughout 2008, TBC once again began informing Plaintiffs that it

16 had remedied its stores. It did this by sending charts prepared by its contractor, Alianza

17 International (“Alianza”). Robertson Decl. ¶ 7. Plaintiffs’ expert Eric McSwain surveyed

18 nineteen of the stores in March, 2008, and another 172 between September, 2008, and April of 19 2009. McSwain Ex. 2.3

20

Plaintiffs began sending TBC copies of Mr. McSwain’s site visit notes, his

21 photographs, and lists of the violations he was finding in the stores in early December, 2008,

22 and served Mr. McSwain’s and Mr. Terry’s expert reports on May 1, 2009, Robertson Decl.

23 ¶ 8, the deadline the Court had set for expert reports in the Case Management and Scheduling

24 Order of June 27, 2008. Docket No. 386 at 2. Exhibit 3 to Mr. McSwain’s report was a 420-

25 page document detailing over 2,400 violations of the ADA and state law that Mr. McSwain

26

27 3

Mr. McSwain was accompanied by expert James L.E. Terry for the March, 2008,

surveys and Mr. Terry surveyed one of those stores, 17576, without Mr. McSwain. See Terry

28 Ex. 6.

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1 found in the stores he surveyed. McSwain Decl. ¶ 5 and Ex. 3. These violations included a

2 number of elements Alianza claimed to have remedied that had fallen out of compliance just a

3 few months later. Robertson Ex. 21.

4

On May 1, 2009, TBC served one nine-page report by an expert who had not been to a

5 single restaurant at issue, had not looked at any photographs, and had not reviewed any of the

6 Special Master surveys. Blackseth Dep. at 30 (Fox Ex. 1.) There were no measurements in

7 that report, and it had nothing to do with Defendant’s attempts to fix its restaurants. See

8 generally Taco Bell Corp.’s Expert Report (Fox Ex. 2).

9

And instead of rebutting Mr. McSwain’s and Mr. Terry’s reports on June 1, 2009, as the

10 Court’s scheduling order required, Docket No. 386 at 2, on May 29, TBC moved for an

11 extension of 90 days on the expert disclosure and dispositive motion deadlines, Docket No.

12 421. This Court granted the motion, setting a new expert rebuttal deadline of July 16, 2009.

13 Docket No. 435 at 2. On that date, however, TBC still did not serve an expert report, and to

14 this day, has not rebutted any of Mr. McSwain’s or Mr. Terry’s expert opinions concerning the

15 conditions in the stores. Robertson Decl. ¶ 9. Instead, TBC apparently retained yet another

16 contractor -- Maintco Corp., this time, instead of Alianza -- to take another run at making its

17 stores compliant. Elmer Decl. ¶ 5.

18

It is the result of this now third effort at mootness that forms the basis for TBC’s current

19 motion. Yet even still -- and even according to TBC’s papers -- many elements remain out of

20 compliance or in dispute. In addition, as explained below, TBC policies are inadequate to

21 achieve and maintain compliance with applicable standards.

22 2. TBC’s Changing and Ineffective Policies

23

TBC has asserted that there are a number of architectural elements in its restaurants that

24 are “subject to frequent change,” including: door force, which can change on a daily basis,

25 Elmer 2005 Dep. at 66 (Robertson Ex. 12); utensils, condiment and lid dispensers, which can

26 be placed out of reach by employees, id. at 67; and various items in the dining area and

27 restrooms, which must be replaced after they break, or are vandalized or stolen. See generally

28
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1 de Beers Decl. (Docket No. 113) ¶ 6 (Copy provided at Robertson Ex. 5).

2

The ADA has accessibility requirements covering each of these elements, and thus it is

3 crucial that TBC have effective policies ensuring that when elements in a particular restaurant

4 are moved, modified, or replaced, they continue to comply with these requirements. TBC

5 claims to address maintenance of accessibility in two ways: restaurant-level policies that are

6 supposed to govern day-to-day operations in restaurants (“Operations Policies”); and

7 twice-yearly access inspections by Maintco. As demonstrated below, these measures utterly

8 fail to ensure that access is maintained at TBC’s restaurants.

9

a. Operations Policies.

10

TBC’s ADA Operations Policies have been inconsistent and contradictory over time,

11 are not being used in TBC’s restaurants, and are facially deficient. In one case, TBC’s most

12 recent policy actually instructs its stores to violate the California Retail Food Code.

13

i. TBC’s Operations Policies are Inconsistent and Contradictory.

14

In 2005, TBC’s accessibility consultant at the time, National Access Consultants

15 (“NAC”), prepared a document listing steps that restaurant employees should take to avoid

16 access problems typically encountered at restaurants and similar facilities. See Elmer 2005

17 Dep. at 71 & Ex. D81. TBC provided this list to its facilities leaders as an “informal reference”

18 to help them train restaurant employees. Id. at 71-72.

19

In December 2006, TBC issued another set of ADA operations guidelines to its

20 restaurant general managers. See Elmer 2008 Dep. at 18-21 & Ex. 7 (Robertson Ex. 13).

21 Although the 2006 policy, like the 2005 policy, purported to identify the steps that restaurant

22 employees should take to maintain access, the two policies were substantially different. Many

23 of the steps set forth in the 2005 policy were omitted from the 2006 policy, and the 2006 policy 24 included steps not found in the 2005 policy.4 The 2006 operations guidelines were reissued in

25

4
26

For example, the following tasks were deleted from the 2006 policy: “Fix broken or

raised asphalt and concrete along pedestrian routes,” “Ensure that drop-offs adjacent to

27 walkways are filled with soil or other materials,” “Ensure that the insulation under lavatories completely covers hot water lines and drain pipes,” and “Replace toilet partition doors that will

28

(continued...)

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1 September 2008, and again in April 2009. See Elmer 2009 Dep. at 16-17, 22-23, 26-27

2 (Robertson Ex. 14); Elmer Ex. 4.

3

In October 2009 -- just days before it filed its MPSJ -- TBC sent a new set of ADA

4 operations guidelines to its restaurant general managers that, once again, had wholesale

5 changes from its previous guidelines issued less than six months earlier. See Elmer Ex. 1. 6 Many tasks from the April 2009 checklist were gone, and a number of new tasks were added.5

7

ii. TBC’s Operations Policies Are Not Being Used In Its Restaurants.

8

Although TBC claims to have issued ADA Operations Policies, it fails to provide any

9 facts showing that it has taken any steps to make sure that those policies are actually being used

10 in its restaurants. See Elmer Decl. ¶¶ 6-12. In fact, the evidence demonstrates to the contrary.

11

In September 2009, Plaintiffs deposed the general managers of four restaurants at issue.

12 TBC’s ADA Operations Policies in effect at the time of these depositions consisted of a

13 checklist of eleven items, several of which required periodic inspections of the restaurant to

14 ensure, for example, that “entrance doors are kept clear of obstructions,” that “the route to

15 accessible tables is kept clear of obstructions,” and that condiment and other dispensers are

16 arranged so that their contents are within reach of a person using a wheelchair. Elmer Decl. ¶ 9

17 & Ex. 4. These depositions demonstrated that managers were not even aware of the existence

18 of many of the ADA Operations Policies purportedly issued by TBC, much less prepared to

19

20

4(...continued) 21 no longer self-close completely.” The following was added: “Ensure that the disabled parking

stalls are kept open for use by disabled customers ONLY.”

22
5

The following tasks were deleted from the April 2009 checklist: “Ensure that the path

23 of travel from the public sidewalk to the store entrance(s) is kept clear of any obstructions

(trash cans, potted plants, pay phones, newspaper dispensers, etc.),” “Ensure that the path of

24 travel from the disabled parking stalls to the store entrance(s) is kept clear of obstructions

(trash cans, potted plants, pay phones, newspaper dispensers, etc.),” “Ensure that the disabled

25 parking stalls are kept open for use by disabled customers ONLY.” The following tasks were

added: “Do not replace any restroom door closers that have been removed: by our ADA

26 contractors,” “Do not store bulk drink carriers on the beverage counter, unless a short stack of

no more than 30 carriers is placed near the front edge of the counter so that it can be reached by

27 someone in a wheelchair,” “Do not place any new dispensers (such as nutrition brochure or job

application dispensers) on the walls without consulting with your AC, Facility Leader or

28 myself.”

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1 ensure that those policies were followed in their restaurants. For example, three of the four

2 managers testified that they had never seen any policy or other document relating to the use of 3 the restaurant by people who use wheelchairs or scooters. Solis Dep. at 19;6 Fike Dep. at 19;

4 Malik Dep. at 20, 22.

5

Other than general customer service training applicable to all customers, the managers

6 had not received any training relating specifically to the use of the restaurant by people who use

7 wheelchairs or scooters. Carlos Dep. at 11-12; Malik Dep. at 15-16. Other than instructing

8 their employees to treat all customers with courtesy, the managers had not provided their

9 employees with any training relating to the use of the restaurant by people who use wheelchairs

10 or scooters. Solis Dep. at 19; Fike Dep. at 19. Finally, although pursuant to TBC’s ADA

11 policy, managers were supposed to contact their superior before replacing any restroom signage

12 or equipment (apparently to make sure that replaced items were installed in a manner that

13 complied with the ADA), the managers testified that they believed they had the authority to

14 replace such items without consulting their superiors. Solis Dep. at 10-11; Fike Dep. at 12-14;

15 Carlos Dep. at 9-10; Malik Dep. at 12-14.

16

Several times each shift, managers conduct “customer satisfaction” walks using a

17 Manager In Charge card (“MIC Card”). During these walks, managers try to “see [themselves]

18 as a customer . . . what a customer might see.” Solis Dep. at 15; see also Malik Dep. at 21.

19 The MIC Card instructs managers to check on items that are important to customers, for

20 example, ensuring that the restaurant is clean, that condiments and other items are stocked, and

21 that the lighting is in working order. Boothby Ex. 132. Significantly the MIC Card omits the

22 vast majority of items on the ADA guidelines checklist, simple measures necessary to allow

23 disabled customers to independently patronize TBC’s restaurants. Compare id. with Elmer Ex.

24 4. Yet the MIC Card is the only document these managers used to guide their customer

25 satisfaction walks; none testified he or she used the ADA guidelines.

26

27
6

Excerpts of these depositions are attached as Exhibits 16 through 19 to the Robertson

28 Declaration.

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1

Ultimately, the large number of violations found by Mr. McSwain six years into this

2 litigation and class member experiences demonstrate that whatever policies TBC has are

3 ineffective. See generally McSwain Ex. 3; Corbett Decl. ¶¶ 3-4; Delara Decl ¶ 4; Evans Decl.

4 ¶¶ 4-5; Frederickson Decl. ¶¶ 4-5; Grassi Decl. ¶¶ 4-7; Hall Decl. ¶¶ 4-5; Hardnett Decl.

5 ¶¶ 7-9; Mortimer Decl. ¶¶ 4-9; Pliska Decl. ¶¶ 4-5; Ross Decl. ¶¶ 4-6; Wilkie Decl. ¶ 4-5;

6 Yates Decl. ¶¶ 3-5.

7

iii. TBC’s Operations Policies Are Facially Deficient.

8

TBC’s current ADA Operations Policy, issued on October 14, 2009, does not address

9 many architectural elements that -- according to TBC’s own testimony -- are subject to frequent

10 change and thus can easily fall out of compliance with accessibility requirements. For

11 example, TBC’s current Operations Policy does nothing to ensure that parking spaces and

12 access aisles remain compliant; parking lot signage that is vandalized or stolen is properly

13 replaced; tableware, condiment and lid dispensers are kept within reach of people who use

14 wheelchairs or scooters; the force necessary to open restroom doors remains compliant; and

15 restroom grab bars are installed correctly when they are replaced. Compare de Beers Decl. ¶ 6

16 with Elmer Ex. 1.

17

iv. TBC’s Most Recent Policies Violate the California Retail Food

Code.

18

TBC’s most recent policy instructs stores: “Do not replace any restroom door closers

19

that have been removed by our ADA contractors.” Elmer Ex. 1. The California Retail Food

20

Code, however, requires door closers in restaurant bathrooms. Cal. Health & Safety Code

21

§ 114276(c); see also infra Section III.B.62.

22

b. Maintco’s Semi-Annual Inspections.

23

Earlier this year, TBC entered into a one-year contract with Maintco to conduct

24

semi-annual surveys of its California restaurants. Reeves Dep. at 13, 30 & Ex. 4 (Robertson

25

Ex. 15). The items that Maintco inspects during these surveys are set forth in TBC’s ADA

26

Maintenance Checklist. Elmer Decl. ¶ 8 & Ex. 3. There are a number of architectural elements

27

that change frequently that are entirely omitted from TBC’s Operational Policies and

28

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1 Maintenance Checklist, or that should be inspected much more frequently than twice a year.

2

For example, the ADA requires that doors take at least three seconds to close. ADAAG

3 § 4.13.10.7 There is no dispute that door closing time changes frequently; indeed, Mr. Elmer

4 testified that HVAC and other forces can affect doors on a daily basis. Elmer 2005 Dep. at

5 66:4-21; see also de Beers Decl. ¶ 6. Mr. McSwain found numerous doors in violation of this

6 requirement. See Robertson Ex. 22. Yet neither TBC’s Operational Policies nor its

7 Maintenance Checklist addresses door closing time.

8

The ADAAG also governs reach ranges. Id. §§ 4.2.5, 4.2.6. Many of TBC’s tableware,

9 condiment, and other dispensers are movable, and Mr. Elmer testified that restaurant

10 employees may place these beyond the reach of a person using a wheelchair or scooter. Elmer

11 2005 Dep. at 67:4-20. Mr. McSwain found numerous movable dispensers outside of ADAAG

12 reach ranges. See Robertson Ex. 23. Although the Maintenance Checklist purports to address

13 this issue, TBC’s current Operations Policies do not. Thus at best, the reach range of

14 dispensers -- which can change daily -- will be surveyed only twice a year.

15

c. TBC’s New Construction Policy.

16

The only policy concerning the accessibility of newly constructed restaurants identified

17 by TBC in its MPSJ papers is a two-page document entitled “ADA General Checklist for

18 Construction Managers.” See Elmer Decl. ¶ 12 & Ex. 7. This short document is deficient in a

19 number of ways. First, TBC does not require construction managers to use or comply with this

20 document. According to Mr. Elmer, whether construction managers use this document is

21 purely at their discretion. Elmer 2008 Dep. at 15. Second, this document entirely omits

22 important accessibility requirements, including for example: entrance door closing time;

23 restroom door force or closing time; door hardware; reach height, depth and clear floor space at

24 dispensers; and maneuvering clearances at restroom doors. Taco Bell has submitted no

25

7
26

The ADA requires new construction and alterations to comply with the Americans With

Disabilities Act Accessibility Guidelines (“ADAAG”), 28 C.F.R. § 36.406(a). These standards

27 also provide prima facie evidence of a barrier in existing facilities. See, e.g., Johnson v. Kriplani, 2008 WL 2620378, at *4 n.3 (N.D. Cal. July 2, 2008); Heinemann v. Copperhill

28 Apartments, 2007 WL 4249842, at *3 (E.D. Cal. Nov. 30, 2007).

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1 evidence showing that it has policies in place ensuring that these elements are compliant in

2 newly constructed restaurants. Accordingly, the four new stores Mr. McSwain surveyed

3 contained a significant number of violations. See McSwain Ex. 3 at 408-420.

4

d. TBC’s Customer Service Policies.

5

TBC asserts that its customer service policies make up for ADAAG violations in its

6 restaurants. MPSJ at 8-9. As discussed infra Section III.B.1, as a matter of law, the ADA does

7 not permit TBC to use customer service to avoid architectural accessibility requirements. In

8 any event, as a factual matter, TBC has a long history of deficient customer service with respect

9 to customers with disabilities. Since at least June 2006, Defendant has relied on customer

10 service in lieu of making all of the elements in its restaurants accessible. See Decl. of Mike

11 Harkins (Docket No. 263) ¶ 4. The experiences of customers with disabilities during this time,

12 however, demonstrate the deficiencies of Defendant’s customer service policies.

13

For example, as is true with TBC’s other access policies described above, employees

14 have not been trained effectively (or at all) concerning Defendant’s customer service policy,

15 and thus some Class Members have never been offered assistance, and others have been

16 completely ignored. See, e.g., Pliska Decl. ¶¶ 4-5; Mortimer Decl. ¶ 7; Frederickson Decl. ¶ 4;

17 Yates Decl. ¶ 4; Grassi Decl. ¶¶ 4, 6; Ross Decl. ¶ 4. Many times when Class Members need

18 assistance, employees simply cannot see them, for example, when the disabled customer cannot

19 open a heavy door to get in the restaurant. See, e.g., Wilkie Decl. ¶ 4; Hardnett Decl. ¶ 8; Hall

20 Decl. ¶ 4; Evans Decl. ¶ 4. Finally, employees often are too busy to assist Class Members.

21 Hall Decl. ¶¶ 4-5; Frederickson Decl. ¶ 5; Evans Decl. ¶ 5; Grassi Decl. ¶ 6; Ross Decl. ¶ 5.

22

PROCEDURAL STATUS

23

This Court bifurcated this case into two phases: the first to address Plaintiffs’ ADA

24 claims; the second to address Plaintiffs’ claims under Unruh and the CDPA. Docket No. 386 at

25 2-3. The parties are currently in Phase One addressing ADA claims only. As such, TBC’s

26 MPSJ does not purport to render this case moot. Rather, it addresses only injunctive relief

27 under the ADA. Plaintiffs’ claims for injunctive relief and damages under Unruh and the

28
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1 CDPA are unaffected by TBC’s motion.

2

OVERVIEW OF PLAINTIFFS’ EXHIBITS

3

Plaintiffs’ opposition to the MPSJ is supported by a number of declarations and

4 exhibits. Mr. McSwain’s declaration includes the full list of violations that was served with his

5 expert report on May 1, 2009. McSwain Ex. 3. TBC responded to this list through Exhibit 18

6 to the Elmer Declaration (“Elmer Exhibit 18”). Robertson Exhibit 1 is Plaintiffs’ response to

7 Elmer Exhibit 18. Robertson Exhibit 1 sets forth -- with respect to the elements at issue in the

8 present motion -- the store and item numbers and item description, the violation found by Mr.

9 McSwain, and TBC’s position as reflected in Elmer Exhibit 18. In separate columns, it

10 provides “Plaintiffs’ Substantive Response” and “Plaintiffs’ Procedural Response.” The

11 former column sets forth item-specific information relevant to TBC’s mootness argument or

12 one of its other defenses, see MPSJ at 8-50; the latter column sets forth the reasons why it

13 would be appropriate to strike the information or why it is in violation of Rule 56.

14

Plaintiffs thus submit two large charts: McSwain Exhibit 3 includes all of the

15 violations he observed; Robertson Exhibit 1 includes only those at issue at this time, along with

16 Plaintiffs’ responses to TBC’s arguments. McSwain Exhibits 4 through 252 are photographs

17 and notes that he took during his surveys. Exhibits 1 through 12 of the Terry Declaration are

18 photographs and notes that he took during the surveys in which he participated. The

19 declaration of Ashley Boothby contains copies of discovery documents received from TBC

20 cited herein and in exhibits to the Robertson Declaration. The declaration of Darryl Collins

21 contains copies of unpublished cases cited herein. Exhibits 2 through 34 of the Robertson

22 Declaration consist of other documents referenced herein, including a number of charts

23 summarizing entries in Robertson Exhibit 1 or Elmer Exhibit 18. Finally, Plaintiffs submit the

24 declarations of Representative Plaintiffs Katherine Corbett and Craig Yates, and Class

25 Members Enrique Delara, James Evans, Elaine Frederickson, Mary Grassi, Nancy Hall, Arnetta

26 Hardnett, Carmen Mortimer, Sharon Pliska, Mary Ross, and Roger Wilkie testifying to their

27 personal experiences.

28
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1

ARGUMENT

2 I. Standard of Review: Taco Bell’s MPSJ Does Not Satisfy Rule 56

3

TBC, as the moving party, “has both the initial burden of production and the ultimate

4 burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co.,

5 Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “The initial burden of production

6 refers to the burden of producing evidence, or showing the absence of evidence, on the motion

7 for summary judgment.” Id. “If a moving party fails to carry its initial burden of production,

8 the nonmoving party has no obligation to produce anything, even if the nonmoving party would

9 have the ultimate burden of persuasion at trial. In such a case, the nonmoving party may defeat

10 the motion for summary judgment without producing anything.” Id. (citing Adickes v. S.H.

11 Kress & Co., 398 U.S. 144, 160 (1970)).

12

Affidavits supporting a motion for summary judgment “must be made on personal

13 knowledge [and] set out facts that would be admissible in evidence . . ..” Fed. R. Civ. P.

14 56(e)(1). A decision to grant summary judgment can be made only “if the pleadings, the

15 discovery and disclosure materials on file, and any affidavits show that there is no genuine

16 issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id.

17 Rule 56(c). The Ninth Circuit has held that these rules “mean, taken together, that whatever

18 establishes a genuine issue of fact must both be in the district court file and set forth in the

19 response.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir.

20 2001) (emphasis in original). Because neither rule differentiates between the evidence of the

21 moving and non-moving parties, this principle is equally applicable to TBC here.

22

TBC moves for summary judgment but has largely not produced the evidence necessary

23 to support its motion. As demonstrated in Plaintiffs’ Motion to Strike, many of the assertions

24 in the Elmer and Reeves Declarations are not made on personal knowledge and constitute 25 expert testimony lacking foundation and not disclosed as required by Rule 26(a)(2).8 Those

26

27

8

See, e.g., MPSJ at 13 (no expert testimony to rebut Mr. McSwain’s opinion concerning

the requirements for handrails); 14 (arguing that a feature analyzed by Mr. McSwain as a ramp

28

(continued...)

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1 arguments are incorporated herein by reference, and demonstrate TBC’s failure to satisfy Rule

2 56(e)(1). On a more basic level, TBC’s MPSJ makes many assertions that it does not even 3 attempt to support with evidence,9 and refers to documents and photographs that it did not file 4 with the Court, contrary to the requirements of Rule 56(c).10 TBC is asking this Court to spend

5 a great deal of time and effort addressing arguments that require consideration of documents or

6 photographs without bothering to submit the relevant documents or photographs.

7

In addition to these shortcomings, even where supporting assertions -- although

8 inadmissible -- may exist in one of TBC’s declarations, TBC generally does not attempt to

9 reference those assertions in its MPSJ. So, for example, there are no references to TBC’s

10 supporting declarations after page 8 of its 50-page brief, nor to Elmer Exhibit 18 -- the

11 compilation of TBC’s responses to Mr. McSwain’s report -- after page 7. The reader is left to

12 guess at the location or even existence of support for the last 42 pages of TBC’s brief. This is,

13 at the very least, a violation of Local Rule 7-5, which requires that “[f]actual contentions made

14 in support of . . . any motion must be supported by . . . appropriate references to the record.”

15 “The court . . . is not required to consider evidence that is buried in a two-foot-tall stack of

16 paper, where the parties do not specifically direct the court’s attention to the exact page where

17 the evidence is to be found and do not explain the significance of the evidence in their

18 memoranda of points and authorities.” Mannick v. Kaiser Found. Health Plan, Inc., 2006 WL

19 2168877, at *18 (N.D. Cal. July 31, 2006); see also Mendez-Aponte v. Puerto Rico, --- F.

20 Supp.2d ---, 2009 WL 3063400, at *2 (D. P.R. Sept. 16, 2009) (“When a party makes

21

22

8(...continued) 23 was “better characterized as a curb ramp” without expert support); 16-17 (same; diagonal

parking spaces); 24 (challenging Mr. McSwain’s methodology without expert testimony).

24

9

See, e.g., MPSJ at 19 (assertion concerning position of trash can at store 137 not

25 supported); 22 (assertion concerning left leaf of door not supported); 28 (measurement of

shelves not supported). This is also true throughout Exhibit 18 to the Elmer Declaration.

26 10

See, e.g., MPSJ at 9 (City of La Mirada building permits not provided). Throughout the

27 brief, TBC refers to photographs that it did not file with the Court. See, e.g., MPSJ at 12, 13, 14, 24, 26, 28, 32, 36, 37, 44. Over 100 line items in Elmer Exhibit 18 cite to photographs or

28 documents that TBC did not file with the Court. See Robertson Ex. 24.

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1 numerous conclusory allegations and assertions of fact for which they offer no support, a

2 district court is not required to ferret through sloppy records in search of evidence supporting

3 the party’s case.”).

4

Plaintiffs address the substance of TBC’s legal arguments below, and -- where it was

5 possible to discern the stores, elements, or other evidence on which TBC was relying --

6 Plaintiffs rebut that evidence. However, Plaintiffs respectfully request that this Court deny

7 TBC’s MPSJ for the simple reason that it did not comply with Rule 56. See Nissan Fire &

8 Marine, 210 F.3d at 1102-03 (where the non-moving party does not carry its burden of

9 persuasion, “the nonmoving party may defeat the motion for summary judgment without

10 producing anything”).

11 II. Plaintiffs’ Claims are Not Moot.

12

TBC’s motion reflects a fundamental misunderstanding of this case. This is a multi-

13 facility class action with evidence of changing and recurring barriers -- and changing and

14 ineffective policies -- stretching over a period of more than five years. Although in the single-

15 facility/single-plaintiff cases on which TBC generally relies it may be appropriate to treat the

16 ADA like a contractor’s punchlist, that is not proper here. Rather, at trial, Plaintiffs intend to

17 request -- and demonstrate that they are entitled to -- an injunction requiring policy change,

18 training, and other systemic measures designed to ensure that barriers do not recur in the future

19 not an injunction addressing -- item by item -- the elements that remain out of compliance or 20 that -- at that moment -- have fallen out of compliance.11

21

The evidence now before this Court of recurring and unremedied barriers and

22

23 11

Cf. Teamsters, 431 U.S. at 361 (holding that injunction following showing of a pattern

24 and practice of discrimination “might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment

25 decisions and file periodic reports with the court, or any other order ‘necessary to ensure the full enjoyment of the rights’” protected by the statute); Armstrong v. Davis, 275 F.3d 849, 869-

26 70 (9th Cir. 2001) (“[s]ystem-wide relief is required if the injury is the result of violations of a statute or the constitution that are attributable to policies or practices pervading the whole

27 system . . ..”); Celano v. Marriott Int’l, Inc., 2008 WL 239306, at *21 (N.D. Cal. Jan 28, 2008) (stating that injunction remedying discrimination relating to golf carts would not have to reach

28 “all of the features and precise parameters” of the carts).

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1 ineffective policies demonstrates that Plaintiffs would be entitled to such an injunction -- or at

2 the very least, that they have raised genuine issues of material fact on that question -- and thus

3 the case is not moot.

4

A. Legal Standard: TBC Has A Heavy Burden to Demonstrate that it is

Absolutely Clear That Its Allegedly Wrongful Behavior Will not Recur.

5

It is well established that TBC’s “‘voluntary cessation of a challenged practice’” cannot

6

moot Plaintiffs’ claim unless “‘subsequent events [make] it absolutely clear that the allegedly

7

wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth, Inc. v.

8

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations omitted); United States

9

v. W.T. Grant, 345 U.S. 629, 632 (1953); Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot.

10

Agency, 581 F.3d 1169, 1173 (9th Cir. 2009). TBC has the “‘heavy burden of persua[ding]’

11

the court that the challenged conduct cannot reasonably be expected to start up again.” Friends

12

of the Earth, 528 U.S. at 189 (citations omitted; alteration in original).

13

To render a claim for injunctive relief moot, “‘the reform of the defendant must be

14

irrefutable and total.’” Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp., 593 F. Supp. 2d 1088,

15

1110-11 (N.D. Cal. 2009) (quoting Polo Fashions, Inc. v. Dick Bruhn, Inc., 793 F.2d 1132,

16

1135 (9th Cir. 1986)). “The possibility that [the defendant] may change its mind in the future

17

is sufficient to preclude a finding of mootness.” United States v. Generix Drug Corp., 460 U.S.

18

453, 456 n.6 (1983); see also W.T. Grant Co., 345 U.S. at 632 (Holding that if voluntary

19

cessation could render an action moot, “[t]he defendant is free to return to his old ways”).

20

Ultimately, “[i]t is no small matter to deprive a litigant of the rewards of its efforts . . ..

21

Such action on grounds of mootness would be justified only if it were absolutely clear that the

22

litigant no longer had any need of the judicial protection that is sought.” Adarand

23

Constructors, Inc. v. Slater, 528 U.S. 216, 224 (2000). “Once a defendant has engaged in

24

conduct the plaintiff contends is unlawful and the courts have devoted resources to determining

25

the dispute, there is Article III jurisdiction to decide the case as long as ‘the parties [do not]

26

plainly lack a continuing interest . . .’” Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004).

27

As the facts discussed in this brief and supporting papers demonstrate, Plaintiffs still

28

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1 need the protection of an injunction to ensure compliance.

2

B. The Ninth Circuit Has Held that The Voluntary Cessation Doctrine Bars

Mootness In a Case Almost Identical to This One.

3

The Ninth Circuit has applied the voluntary cessation standard to reject mootness in a

4

case virtually identical to the present but with far stronger evidence favoring mootness. The

5

plaintiff class in Pereira v. Ralph’s Grocery Co., 07-cv-00841-PA-FFM (C.D. Cal. Oct. 25,

6

2007) (Robertson Ex. 3), alleged a variety of violations of the ADAAG at 23 of the defendant’s

7

grocery stores. Id., slip op. at 3. The defendant moved for summary judgment on mootness

8

grounds, asserting that it had remedied all of the alleged violations; crucially, the plaintiffs did

9

not dispute that the defendant had done this. Id. at 4. The district court explicitly distinguished

10

the present case on the grounds that there was no evidence -- as there is here -- that elements

11

change frequently. Id. at 5 (citing the August 8, 2007 order in this case reprinted at 2007 WL

12

2301778). On these grounds, the district court granted the defendant’s motion for summary

13

judgment on mootness grounds. Id. at 7.

14

The Ninth Circuit reversed in a one-sentence opinion, holding that “[t]he defendant’s

15

‘voluntary cessation of allegedly illegal conduct’ did not moot this case.” Pereira v. Ralph’s

16

Grocery Co., 329 Fed. Appx. 134 (9th Cir. 2009) (quoting W.T. Grant Co., 345 U.S. at 632). If

17

the voluntary cessation doctrine applies to prevent mootness in a Title III class action where the

18

plaintiff concedes that all remedies have been made, it applies with that much greater force

19

here, where many of the violations remain contested and where there is strong evidence that

20

even those elements that may have been remedied will change frequently in the future.

21

C. Because Elements in Taco Bell Restaurants Change Frequently, TBC

22

Cannot Satisfy the Heavy Burden to Show That Violations Will Not Recur.

23

TBC has previously informed this Court that, “[d]ue to regular maintenance, remodels,

24 repairs, and normal wear and tear, virtually every accessibility element [in a Taco Bell

25 restaurant] is subject to change over time so that evidence that an element is or is not in

26 compliance today (for purposes of determining injunctive relief) is not dispositive of whether

27 the same element was in compliance” at the time of any class member visit. Docket No. 110,

28
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1 at 3, see also id. at 9-10. This assertion was supported by the testimony of TBC’s then-

2 Northern California Facility Leader, Jaime de Beers, listing 37 categories of elements in Taco

3 Bell restaurants that are “subject to frequent change.” de Beers Decl. ¶¶ 2, 6.

4

The Court, in evaluating TBC’s mootness argument in 2007, considered TBC’s

5 assertions and concluded that, indeed, “evidence of the current compliant status of certain

6 elements is not dispositive of whether the elements will continue to be compliant in the future.”

7 Moeller, 2007 WL 2301778, at *8. As a result, the Court held that TBC could not “satisfy its

8 heavy burden to show that the past and existing ADA violations will not recur.” Id. Even if

9 certain elements were in compliance at one point in time, the Court could “order effective relief

10 as to those elements in the form of an injunction requiring TBC to (1) remedy the remainder of

11 these elements that are out of compliance; (2) maintain those elements in a compliant state; and

12 (3) ensure that those elements comply in any new or acquired restaurants.” Id.

13

This reasoning is as powerful and applicable today as it was in 2007. TBC does not

14 claim to have remedied all ADA violations in its California stores. It presents no evidence that

15 Ms. de Beers’s testimony is no longer the case. Substantiating that testimony, Mr. McSwain’s

16 surveys revealed a number of items that TBC claimed were fixed by Alianza that had already

17 fallen out of compliance just a few months later. See Robertson Ex. 21. And TBC provides no

18 evidence that new construction will comply.

19

D. An Injunction Continues to Be Necessary for the Same Reasons Listed in

The 2007 Mootness Ruling.

20

1. TBC Has Not Remedied All ADA Violations.

21

TBC does not claim to have remedied all of the ADA violations in its California

22

restaurants. Rather, it claims that it has “modified the vast majority of features” identified in

23

Plaintiffs’ expert reports. MPSJ at 7. Putting aside the evidentiary and legal shortcomings of

24

TBC’s asserted remedies, TBC does not claim that its California stores are now in compliance

25

with the ADA or even that all of the violations identified by Mr. McSwain have been remedied.

26

Instead, TBC submits Elmer Exhibit 18, which addresses each of the items identified by

27

Mr. McSwain. The Elmer, Reeves and Hikida Declarations include additional assertions

28

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1 relating to various elements. Plaintiffs respond systematically to Elmer Exhibit 18 in

2 Robertson Exhibit 1. This latter document shows that there are few if any elements currently at

3 issue that TBC has demonstrated -- with admissible evidence in the record -- that it has

4 remedied. Even, putting aside TBC’s comprehensive failure to comply with Rule 56, many of

5 the elements in Robertson Exhibit 1 remain unresolved.

6

As an initial matter, the “TBC’s Position” column in over 280 of the items in Elmer

7 Exhibit 18 is simply blank. Robertson Ex. 25. With respect to a number of others, TBC has

8 refused to remedy the violations or described a remedy that is improper. For example, TBC

9 refuses to remedy a number of parking spaces in which the access aisle does not parallel the

10 space it serves. Plaintiffs demonstrate below that TBC’s legal reasons for this refusal are

11 incorrect. See infra Section III.B.11. TBC attempted to remedy 51 restroom door clearances

12 by removing the door closer. However, this measure was improper under the California Retail

13 Health Code. See infra Section III.B.62. Those parking spaces and doors remain at issue.

14

2. TBC Has Not Demonstrated that It Can Maintain Compliance.

15

TBC’s conduct over the past two years has underscored the court’s Conclusion that an

16 injunction remains necessary to ensure that TBC maintains its stores in compliance with the

17 ADA. See Moeller, 2007 WL 2301778, at *8.

18

TBC received the Special Master’s reports in June 2005 showing widespread violations

19 of the ADA and Title 24. See Robertson Decl. ¶ 3; Docket Nos. 216 through 240. In April,

20 2006, it retained Alianza to begin attempting to remedy its stores. After this initial attempt --

21 and the Court’s rejection of its mootness argument in 2007 -- in 2008, TBC once again began

22 informing Plaintiffs that it had remedied its stores. Robertson Decl. ¶ 7. In response,

23 Plaintiffs’ expert, Eric McSwain, surveyed the stores between the fall of 2008 and the spring of

24 2009. These surveys demonstrated conclusively that TBC is incapable of bringing its stores

25 into compliance and maintaining them in that condition. Two years after this court’s ruling on

26

27

28
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1 mootness, Mr. McSwain still found over 1,900 violations of the ADA.12 In many cases,

2 measures that TBC’s contractor performed only a few months before had slipped back into

3 violation. See Robertson Ex. 21.

4

Store 3498 provides an excellent example of TBC’s failure to ensure ongoing

5 compliance with the ADA. While generally Mr. McSwain surveyed the stores after Alianza

6 had attempted to remedy them, in the case of 3498, the order was reversed. When Mr.

7 McSwain surveyed that store in February, 2009, he discovered that, since the Special Master’s

8 survey in December, 2004 -- almost four years previously -- nothing had been done about the

9 following violations: the lack of a van accessible parking space; noncompliant ramp in the

10 access aisle; the door force at the men’s and women’s restrooms; the maneuvering clearances at

11 the restroom doors; the flush controls on the toilets; urinal height; and height of the women’s

12 room lavatory. Compare generally Docket No. 225-3 (Special Master report for store 3498) at

13 11-12, 36-37, 44, 45, 51-52, 59-60 with McSwain Ex. 3 at 147-53. While TBC had claimed, in

14 conjunction with its 2007 mootness argument, to have policies in place to address such things

15 as door force, see Docket No. 260 at 36-37; Decl. of Mike Harkins (Docket No. 263) ¶ 2, this

16 survey makes it clear that they were ineffective.

17

In a number of stores, elements that Alianza alleged were in compliance had fallen out

18 of compliance when observed by Mr. McSwain, demonstrating that TBC cannot ensure that

19 store-level modifications will be done in compliance with the ADA. See generally Robertson

20 Ex. 21. For example, in store 15614, the water closet in the women’s restroom was in

21 compliance when surveyed by Alianza, but was replaced between the Alianza and McSwain

22 surveys. Compare Boothby Ex. 83 at TBGT007341 with McSwain Ex. 161 at EM03438. The

23 new water closet seat was too low, McSwain Ex. 3 at 273. Compare also Boothby Ex. 53 with

24 McSwain Ex. 120A (flush handle moved to wide side (ADAAG § 4.16.5) by Alianza in 2007;

25 tank replaced with flush handle on narrow side before McSwain visit in April 2008).

26

27 12

Mr. McSwain found over 2,400 violations of the ADA and state law. Of those, over

28 1,900 were ADA violations. See Robertson Decl. ¶ 11 and Ex. 1.

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1

Restroom door closers present an especially troubling example of the lack of effective

2 policies at the store level. TBC built a number of stores without sufficient push side clearance

3 at one restroom door. Robertson Ex. 26. Rather than installing an automatic door, which

4 would have solved the problem, TBC removed the door closers. This, as noted above, is illegal

5 under the Retail Food Code. See Cal. Health & Safety Code § 114276(c). Initially, Alianza did

6 this in 13 stores. See Robertson Ex. 27. Whether store managers were out of touch with

7 TBC’s attempted remedies, anxious to comply with applicable heath and safety standards, or

8 both, a number of the closers had been reinstalled by the time Mr. McSwain surveyed the

9 stores. See id. TBC then compounded the problem by issuing a policy prohibiting the

10 reinstallation of door closers, Elmer Ex. 1, that is, mandating a violation of the Retail Food

11 Code. Accordingly, Taco Bell recently removed the closers on 51 doors. Robertson Ex. 28.

12

TBC has a duty to ensure that its stores are maintained in compliance with the ADA.

13 See 28 C.F.R. § 36.211 (requiring places of public accommodation to be maintained readily

14 accessible to and usable by individuals with disabilities); see also infra at 42-45. TBC claims

15 to have policies in place to ensure that this happens; however, these policies have changed

16 repeatedly over the course of the litigation and are apparently not actually promulgated to store

17 employees. See Longstreth v. Maynard, 961 F.2d 895, 900 (10th Cir. 1992) (rejecting

18 mootness where policy “varied considerably”). Ultimately, Plaintiffs’ evidence shows that

19 these policies are ineffective.

20

Most importantly -- for mootness purposes -- these deficient policies cannot satisfy

21 TBC’s heavy burden to demonstrate that the challenged conduct -- the illegal barriers in its

22 restaurants -- will not recur. TBC’s history of failure “is probative of the likelihood of future

23 [violations].” Rosemere, 581 F.3d at 1175. Indeed, a number of ADA cases have held that

24 policy changes do not moot a claim for injunctive relief under that statute. In Sheely v. MRI

25 Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007), the Eleventh Circuit held that a

26 medical office that changed its service animal policy in response to a lawsuit did not moot the

27 plaintiff’s claims. It held that it was “more likely to find a reasonable expectation of recurrence

28
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1 when the challenged behavior constituted a ‘continuing practice’ or was otherwise deliberate.”

2 Id. at 1184-85. Here, Plaintiffs have demonstrated a continuing practice of ADA violations

3 over many years, and TBC continues to defend those practices.

4

In Clavo v. Zarrabian, 2004 WL 3709049 (C.D. Cal. May 17, 2004), the court rejected

5 the defendant’s mootness argument on the grounds that the claimed new wheelchair access

6 policy did “not eliminate the possibility of future violations” when the problems were

7 “entrenched,” and the defendant “failed to change [its] policy until after [the] case was filed.”

8 Id. at *4; see also Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1084 (N.D.

9 Cal.1997) (holding that BART’s actual and planned upgrades in physical facilities and a new

10 preventive maintenance program did not moot the plaintiffs’ claims); Watanabe v. Home Depot

11 USA, Inc., 2003 WL 24272650, at *4 n.2 (C.D. Cal. July 14, 2003) (holding that a memo

12 circulated to the defendant’s employees concerning preserving access to parking spaces was not

13 sufficient to render ADA claims moot: “Defendant has wholly failed to meet its heavy burden.

14 . . . Defendant provides no evidence or persuasive argument that its unlawful conduct will not

15 continue”); Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1382 (N.D.

16 Ga. 2002) (“Improvements in service will not preclude injunctive relief where there has been a

17 clearly established pattern of failing to provide an acceptable level of service to the disabled.”).

18

3. TBC Has Not Demonstrated That it Can Ensure Compliance in New

and Acquired Stores.

19

The third ground on which the Court held, in 2007, that an injunction was necessary

20

was to “ensure that those elements comply in any new or acquired restaurants.” Moeller, 2007

21

WL 2301778, at *8. This, too, remains as necessary as it was in 2007.

22

TBC has provided the Court with no evidence or argument that the six new stores it

23

recently opened are in compliance. See Robertson Decl. ¶ 20 (April 10, 2009 letter from R.

24

Hikida stating that stores 24199, 24256, 24304, 24399, and 24440 were recently constructed);

25

see also Elmer Decl. ¶ 4 (store 24424 recently constructed). The former five stores are not

26

mentioned anywhere in TBC’s MPSJ or supporting papers; there is no evidence that any of the

27

six recently-constructed stores is in compliance. The only mention of a policy relating to new

28

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1 stores is in Mr. Elmer’s declaration, where he states merely that TBC provides a checklist to

2 construction managers. Elmer Decl. ¶ 12. As explained above, this is something construction

3 managers use at their discretion, Elmer 2008 Dep. at 15, and it omits important accessibility

4 requirements. Ultimately, for the reasons discussed in Section III.D.2 immediately above, this

5 policy cannot satisfy TBC’s heavy burden to show that violations will not occur in newly

6 constructed restaurants.

7

The inadequacy of any policy covering new construction was underscored by Mr.

8 McSwain’s surveys of four stores -- 22460, 22691, 22692, 22871 -- that had presumably been

9 constructed since the Special Master served his reports. See Robertson Decl. ¶ 10. These

10 stores contained a wide variety of violations, see McSwain Ex. 3 at 408-20, ranging from door

11 closing time, id. at 408, 411, 412, to an improperly constructed ramp, id. at 410.

12

In light of the complete lack of evidence of compliance in the six recent stores, and the

13 long list of violations found in the four new stores surveyed by Mr. McSwain, TBC cannot

14 satisfy the heavy burden to show that violations will not occur in new stores.

15

E. TBC Still Contests Liability and Only Attempted Reform Long After Being

Sued.

16

Where a litigant attempts to remedy a problem during litigation while continuing to

17

assert the legality of its original conduct, this weighs in favor of finding that the conduct is

18

likely to resume and the case is not moot. See, e.g., Sheely, 505 F.3d at 1186-87 (holding that a

19

“defendant’s failure to acknowledge wrongdoing similarly suggests that cessation is motivated

20

merely by a desire to avoid liability, and furthermore ensures that a live dispute between the

21

parties remains”); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 430 F. Supp. 2d 996, 1006 (N.D.

22

Cal. 2006) (holding that the defendant’s persistent representations that the challenged

23

operations were legal “are an additional factor suggesting that there is a likelihood that [the

24

defendant] will resume the challenged activity.”); Blue Ocean Pres. Soc’y v. Watkins, 767 F.

25

Supp. 1518, 1525 (D. Haw. 1991) (holding that “the likelihood of recurrence of challenged

26

activity is more substantial when the cessation is not based upon a recognition of the initial

27

illegality of that conduct.” (citing Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43

28

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1 (1944)).). With respect to many of the items in Exhibit 18 that TBC claims to have remedied, 2 TBC simultaneously contests liability.13 Nowhere does it recognize the initial illegality of its

3 conduct; instead, it has asserted repeatedly that the only motivation for the changes was a desire

4 to avoid liability through application of the mootness doctrine. See supra at 3.

5

It is also suspect that TBC waited four years after the filing of this case before even

6 starting to remedy the challenged conduct. The Supreme Court has cautioned that “[i]t is the

7 duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance

8 and reform, especially when abandonment seems timed to anticipate suit, and there is

9 probability of resumption.” United States v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952);

10 see also Armster v. United States Dist. Court, 806 F.2d 1347, 1357 (9th Cir. 1986) (holding

11 that “[a] change of activity by a defendant under the threat of judicial scrutiny is insufficient to

12 negate the existence of an otherwise ripe case or controversy [under the voluntary cessation

13 exception to mootness].”).

14

F. Cases Cited by TBC Cannot Overcome The Force of Supreme Court and

Ninth Circuit Precedent Demonstrating Plaintiffs’ Claims Are Not Moot.

15

TBC does not discuss or distinguish the Supreme Court and Ninth Circuit precedents

16

that govern this case -- Friends of the Earth; Rosemere; Pereira -- nor does it acknowledge --

17

much less attempt to satisfy -- its “heavy burden” to make it “absolutely clear that the allegedly

18

wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., 528

19

U.S. at 189 (citation omitted). Instead, TBC relies almost entirely on unpublished, single-

20

facility, single-plaintiff cases in many of which the plaintiff had conceded mootness or even

21

summary judgment.

22

Similarly, nowhere does TBC acknowledge the Court’s prior decision rejecting its

23

24

13
25

For example, compare Elmer Ex. 18 at 36, 62, 92-93, 109, 124, 133, 149 and other

examples in which TBC claims to have replaced floor mats, with MPSJ at 25 (arguing that

26 floor mats are not covered by the ADAAG); compare Elmer Ex. 18 at 3, 35, 46, 96, 103 and other examples in which TBC claims to have removed a portable trash can with MPSJ at 40-42

27 (arguing that these elements are not covered by the ADAAG). (Plaintiffs are not confident that their version of Elmer Exhibit 18 has the same pagination as that before the Court. See Docket

28 Nos. 476 & 477. Page references within Exhibit 18 are thus approximate.)

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1 mootness argument or attempt to explain why injunctive relief would not be still necessary to

2 “(1) remedy the remainder of these elements that are out of compliance; (2) maintain those

3 elements in a compliant state; and (3) ensure that those elements comply in any new or

4 acquired restaurants.” Moeller, 2007 WL 2301778, at *8. Instead, TBC relies largely on

5 unpublished -- and quite distinguishable -- cases addressing when injunctive relief is

6 appropriate, with no attempt to tie them to the circumstances of this case.

7

1. TBC’s Single-Store Mootness Cases Are Distinguishable.

8

The cases TBC recites in support of its mootness argument are all single-facility,

9 generally single-plaintiff cases, in many of which the plaintiff conceded mootness. These cases

10 are not apposite here.

11

TBC’s lead mootness case, Bleakly v. Sierra Cinemas, Inc., 2008 WL 109377 (E.D.

12 Cal. Jan. 8, 2008) (cited in MPSJ at 5), involved a single plaintiff challenging conditions in a

13 single theater. The plaintiff “concede[d] that as a result of the modifications defendant ha[d]

14 made to the movie theater her ADA claim [was] now moot. The parties [did] not dispute that

15 summary judgment on plaintiff’s ADA claim in favor of defendants [was] warranted.” Id. at

16 *1; see also Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc), slip op. at 22

17 (S.D. Cal. June 14, 2007) (Collins Ex. 1) (“Plaintiff concedes that Defendant has modified the

18 restrooms to comply with the law.”); Sanford v. Del Taco, Inc., 2006 WL 2669351, at *4 (E.D.

19 Cal. Sept. 18, 2006) (noting that the plaintiff had agreed that certain barriers had been remedied

20 and were therefore moot). Hubbard v. Kayo Oil Co., No. 05CV2076 BEN (BLM) (S.D. Cal.

21 Dec. 22, 2006) (Collins Ex. 2), cited in MPSJ at 5 -- a one-paragraph decision stating that the

22 plaintiffs did not oppose the defendants’ motion for summary judgment on mootness grounds --

23 was reversed on appeal by the Ninth Circuit. Hubbard v. Kayo Oil Co., 304 Fed. Appx. 515,

24 516 (9th Cir. 2008).

25

In Rodriguez v. Ralph’s Grocery Co., No. 07-CV-02311-R (PLAx) (C.D. Cal. Nov. 7,

26 2007) (Collins Ex. 3), two plaintiffs challenged a total of three barriers in a single facility. Id.,

27 slip op. at 2-3. When the defendant remedied those three barriers, the court held the case moot.

28
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1 Id. at 4; see also Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 95 (D.D.C. 2007)

2 (holding that when the single feature at issue in single restaurant was remedied, the claim was

3 moot); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130 (C.D. Cal. 2005) (single plaintiff

4 sought injunctive relief as to a single element in a single facility; court held case was moot

5 because element had been remedied); Ostendorf v. Dawson County Corrections Bd., 2002 WL

6 31085085, at *6 (D. Neb. Sept. 18, 2002) (no immediate threat of harm because prisoner

7 plaintiff had been transferred out of the challenged facility).

8

In Molski v. Foster Freeze Paso Robles, No. CV 04-03780 DDP (JWJx) (C.D. Cal.

9 May 10, 2007) (Collins Ex. 4), the plaintiff admitted that all of the barriers he challenged had

10 been removed. Id. slip op. at 11. Nevertheless, he argued that the “voluntary cessation”

11 doctrine applied. Id. In granting the defendant’s motion, however, the court found that

12 “[t]here is no indication that Defendants would attempt to undo those remedies if the Court

13 refrained from granting injunctive relief.” Id. at 12. That is in sharp contrast to the present

14 case, in which there is ample evidence of frequent change and impermanent remedies.

15

The only Ninth Circuit case on which Defendant relies is not relevant here. In Martinez

16 v. Longs Drug Stores Corp., 281 Fed. Appx. 712 (9th Cir. 2008) -- another single, plaintiff

17 single facility case, see id. at 713 -- the Ninth Circuit held that the district court had not abused

18 its discretion in declining to order injunctive relief. That court specifically stated that the

19 district court’s decision was not based on mootness and that, as a result, the “voluntary

20 cessation” doctrine did not apply. Id. at 713 n.1.

21

None of these cases involved a class action. None involved multiple facilities. And in

22 none was there evidence -- as there is here, in abundance -- that the facilities at issue change

23 frequently and that violations have recurred and will continue to recur. The cases TBC cites

24 are simply not relevant to the present case.

25

2. TBC Bears the Burden to Show That No Effective Relief can be

Ordered.

26

Plaintiffs have demonstrated that injunctive relief is necessary for the same categories

27

of reasons this Court found applicable in 2007. See Moeller, 2007 WL 2301778, at *8. TBC

28

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1 does not argue or present evidence to the contrary. Instead, it cites to a series of cases that are

2 completely disconnected from the present motion. For example, its lead case is Antoninetti v.

3 Chipotle Mexican Grill, Inc., 2008 WL 111052 (S.D. Cal. Jan. 10, 2008), which addressed the

4 question whether injunctive relief was proper in light of the fact that the plaintiff did not appear

5 to have a sincere plan to return to the two restaurants at issue, id. at *25, a question not at issue

6 in the present litigation. Because the question was before the court for findings of fact and

7 conclusions of law following a bench trial, see id. at *1, the court properly placed the burden of

8 proof on the plaintiff to establish entitlement to injunctive relief, id. at *24.

9

In contrast, “[t]o establish mootness, a defendant must show that the court cannot order

10 any effective relief.” San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th

11 Cir. 2002). That is, in a context such as the present -- a defense motion for summary judgment

12 on mootness -- the burden is on TBC to show that the court cannot order effective relief, not on

13 Plaintiffs to establish entitlement to an injunction. Furthermore, “the question is not whether

14 the precise relief sought at the time the application for an injunction was filed is still available.

15 The question is whether there can be any effective relief.” Cantrell v. City of Long Beach, 241 16 F.3d 674, 678 (9th Cir. 2001) (internal quotations omitted).14

17

The remainder of TBC’s cases are equally inapposite. For example, in Blake v.

18 Southcoast Health System, Inc., 145 F. Supp. 2d 126, 132 (D. Mass. 2001), the only plaintiff

19 was deceased. In Adelman v. Acme Markets Corp., 1996 WL 156412, at *2 (E.D. Pa. Apr. 3,

20 1996), and Stringer v. White, 2008 WL 344215, at *6-7 (N.D. Cal. Feb. 6, 2008), the plaintiffs

21 were not seeking injunctive relief. In Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 184

22 (Cal. Ct. App. 1990), the defendant had ceased operating the restaurant in question. In Harris

23 v. Stonecrest Care Auto Center, LLC, 472 F. Supp. 2d 1208, 1218 (S.D. Cal. 2007), the only

24

14
25

TBC cites Long v. United States Internal Revenue Service, 693 F.2d 907, 909 (9th Cir.

1982) for the proposition that the court should consider “the likelihood of recurrence, weighing

26 the good faith of any expressed intent to comply, the effectiveness, if any, of the discontinuance and the character of past violations.” MPSJ at 4. This case predated Friends of

27 the Earth and San Francisco Baykeeper, which set forth the governing standards assigning the burden to the defendant to prove mootness and the lack of need for an injunction in that

28 context.

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1 question was whether the single plaintiff intended to return to the challenged facility.15

2

In Gasper v. Marie Callender Pie Shops, Inc., No. CV 05-1435 CBM (Ssx) (C.D. Cal.

3 June 27, 2006) (Collins Ex. 5), the plaintiff admitted that the barriers she challenged had been

4 remedied, and that the policy she challenged complied with the ADA and had not affected her

5 the only time she made use of it. Id., slip op. at 2. The defendant was able to produce evidence

6 that a compliant policy had been in effect since before the lawsuit. Id. at 5. This is again in

7 stark contrast to the present case, in which TBC has adopted a series of changing policies

8 which it has not promulgated to its stores, and which Plaintiffs contend do not satisfy its

9 obligations under the ADA.

10

3. TBC’s Citation to Doran Is an Impermissible Attempt to Shift the

Burden of Demonstrating Mootness.

11

The last case cited -- again without explanation -- in TBC’s mootness argument is

12

Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008), for the proposition that Plaintiffs

13

bear the burden of proof to defeat summary judgment as to each of the elements at issue.

14

MPSJ at 7. TBC did not, however, move for summary judgment on the merits as to each of the

15

elements at issue. Indeed, TBC does not challenge any of the Special Master’s findings,

16 documented in the reports filed at Docket Nos. 216 through 240. Nor -- with one exception16 --

17

does it challenge the accuracy of the measurements documented in Plaintiffs’ expert reports.

18

Because TBC has not provided evidence or argument on the merits of Plaintiffs’ claims,

19

Plaintiffs do not -- at this juncture -- bear the burden of proof assigned in Doran. See Nissan

20

Fire & Marine, 210 F.3d at 1102-03 (where the non-moving party does not carry its burden of

21

persuasion, “the nonmoving party may defeat the motion for summary judgment without

22

23
15

TBC also cited Dowling v. MacMarin, Inc., No. C-94-2899 WHO (N.D. Cal. Sept. 6,

24 1996). MPSJ at 4. This case was decided before the advent of the electronic case filing (ECF)

system in the Northern District of California, and is thus unavailable to Plaintiffs electronically.

25 Plaintiffs requested that TBC provide a copy but this did not happen. Robertson Decl. ¶ 15.

16
26

Mr. Elmer disputes a single measurement taken by Mr. McSwain. See Elmer Decl. ¶

35. Mr. Elmer’s assertion is based on photographs that TBC does not provide the court, in

27 violation of Rule 56(c). There are thus no grounds to accept Mr. Elmer’s assertion; at most, it is a disputed issue of fact. Compare Elmer Decl. ¶ 35 with McSwain Ex. 3 at 223 and Ex. 138

28 at EMP002169-72.

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1 producing anything”). Rather, this argument “impermissibly attempts to shift the burden to

2 [Plaintiffs] to defeat mootness.” Rosemere, 581 F.3d at 1173. By moving for summary

3 judgment on the theory that it has remedied all alleged violations, TBC has for all purposes 4 related to this motion the “heavy burden” to show that these violations will not recur. Id.17 It

5 has not satisfied that burden.

6 III. Plaintiffs’ Responses To TBC’s Non-Mootness Defenses.

7

The section of the MPSJ entitled “Taco Bell’s Defenses Other than The Mootness

8 Doctrine” contains 84 subsections -- ranging from one sentence to several pages long -- raising

9 a variety of non-mootness issues. MPSJ at 8-50. These will be referred to as the “Non-

10 Mootness Defenses.”

11

As an initial matter, these Non-Mootness Defenses suffer from the inadequacies noted

12 in Section I of the Argument: they are completely unsupported by expert evidence; largely

13 unsupported by any other type of admissible evidence; and rife with unsupported assertions of

14 fact and references to documents and photographs that were not submitted to the Court.

15 Throughout its Non-Mootness Defenses, TBC improperly relies on Plaintiffs’ Meet and Confer

16 Charts, which reliance is barred by both Rule 408 of the Federal Rules of Evidence and by the

17 parties’ previous agreement.

18

A. Any References To Or Attempts to Draw Inferences from Plaintiffs’ Meet

and Confer Charts Are Improper and in Violation of Rule 408.

19

Throughout the Non-Mootness Defenses, TBC asks the Court to draw various

20

inferences from the fact that various elements were or were not included in Plaintiffs’ “Meet

21

and Confer Charts.” As described above, these charts are protected by Rule 408. Robertson

22

Exs. 8, 10; see also Pls.’ Mot. to Strike, sec. II. In addition, Plaintiffs informed TBC that they

23

24

17
25

TBC also cites two cases for the proposition that a plaintiff only has standing with

respect to barriers of which he had knowledge. MPSJ at 6 (citing Wilson v. Haria and Gogri

26 Corp., 2007 WL 851744, at *3 (E.D. Cal. Mar. 22, 2007) and Brother v. CPL Investments, Inc., 317 F. Supp. 2d 1358, 1368 (S.D. Fla. 2004)). TBC does not explain the relevance of these

27 citations to this class action case. In any event, the governing law in the Ninth Circuit is that a plaintiff has standing to challenge all barriers at a facility that affect his or her disability. See

28 Doran, 524 F.3d at 1044.

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1 “cannot agree that those items that are left off the charts [they sent] were in compliance on the

2 date of the Special Master’s survey.” Robertson Ex. 7. In any event, as is common in a

3 settlement process, each decision to omit a violation from Plaintiffs’ settlement position was an

4 individualized decision. No further inferences can be drawn from it. Thus, the many occasions

5 on which TBC asks this Court to make inferences from the an omission from an M&C chart are 6 not only improper but logically and factually unsupported.18

7

B. Many of TBC’s Non-Mootness Defenses Are Meritless

8

The arguments below are meritless for the reasons provided. Plaintiffs retain the

9 numbering used in TBC’s MPSJ for ease of reference.

10

1. Customer Service Cannot Excuse Violations of the ADAAG.

11

Customer service cannot constitute “equivalent facilitation” under Section 2.2 of the

12 ADAAG and cannot otherwise excuse violations of ADAAG standards. Section 2.2 permits

13 “[d]epartures from particular technical and scoping requirements of this guideline by the use of

14 other designs and technologies . . . where the alternative designs and technologies used will

15 provide substantially equivalent or greater access to and usability of the facility.” This Court

16 has previously held that “there are only two requirements for an equivalent facilitation: 1) it is

17 an alternative design or technology; and 2) it provides equal or greater access to subject

18 facilities.” Moeller v. Taco Bell Corp., 2005 WL 1910925, at *3 (N.D. Cal. Aug. 10, 2005).

19 “Indeed, when ‘[p]roperly read, the “Equivalent Facilitation” provision does not allow facilities

20 to deny access under certain circumstances, but instead allows facilities to bypass the technical

21 requirements laid out in the [Accessibility] Standards when alternative designs will provide

22 “equivalent or greater access to and usability of the facility.”’” Id. at *3 n.1 (quoting Caruso v.

23 Blockbuster-Sony Music Entm’t Ctr., 193 F.3d 730, 739 (3d. Cir. 1999)).

24

TBC ignores this limitation and attempts to use customer service -- which is neither an

25

26

27 18

See MPSJ, Section IV.B, Subsections 5, 6, 7, 8, 9, 15, 16, 17, 18, 23, 26, 29, 30, 32, 34,

28 37, 41, 43, 45, 46(a), 46(b), 46(c), 55, 59, 61, 62, 67, 70, and 77.

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1 alternative design nor an alternative technology -- to excuse its violations of the ADAAG.19

2 This is improper both under this Court’s prior ruling and in light of the ADA’s purposes of

3 “full participation, independent living, and economic self-sufficiency” for individuals with

4 disabilities, 42 U.S.C. § 12101(a)(7). The District of Columbia Circuit recently held that the

5 same goals of the Rehabilitation Act, 29 U.S.C. § 794, “ensure[ ] that, for the disabled, the

6 enjoyment of a public benefit is not contingent upon the cooperation of third persons.” Am.

7 Council of the Blind v. Paulson, 525 F.3d 1256, 1269 (D.C. Cir. 2008) (citations omitted); see

8 also Clavo, 2004 WL 3709049, at *3 (holding that defendant could not require plaintiff to ask

9 employee to unlock gate in front of grocery store or request that accessible check-out lane be

10 opened. “Although Plaintiff was ultimately able to purchase merchandise at the [store], the

11 manner in which he was able to make his purchases was neither ‘full’ nor ‘equal’ in

12 comparison to non-disabled patrons.”).

13

Not only is customer service by definition not a design or technology, it does not

14 “provide[ ] equal or greater access to subject facilities,” in violation of this Court’s second

15 requirement. Moeller, 2005 WL 1910925, at *3. A review of the circumstances in which TBC

16 attempts to invoke this defense demonstrates the unequal and ultimately humiliating experience

17 it would create. TBC suggests that instead complying with the ADAAG, it can insist that

18 customers rely on assistance to enter the restaurant -- including being bumped over a

19 noncompliant threshold, see MPSJ at 24 -- and having to ask for help moving obstructions in

20 paths of travel and on counters, retrieving drinks, condiments, tableware, and brochures,

21 opening the door to get into the restroom and again to get back out. See generally Robertson

22 Decl. Ex. 37; Corbett Decl. ¶ 5. This experience can be “diminishing,” and undermines the

23 ADA’s promise of independence. Id.; see also Frederickson Decl. ¶¶ 4-5; Hall Decl. ¶¶ 4-5;

24 Hardnett Decl. ¶ 8; Mortimer Decl. ¶ 7; Pliska Decl. ¶¶ 4-5; Wilkie Decl. ¶¶ 4-5; Yates ¶ 4.

25

19
26

In its MPSJ and throughout Elmer Exhibit 18, TBC also uses the phrase “assisting

disabled customers . . . constitutes a reasonable modification of its self-service policy.” See,

27 e.g., MPSJ at 8; Elmer Ex. 18 at 2 and passim. Nowhere in the ADAAG, the ADA, or its implementing regulations does a reasonable modification of policy excuse compliance with the

28 ADAAG.

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1

2. TBC Does Not Provide Any Evidence Concerning The Position of

the City of La Mirada.

2

TBC asserts that, at store 5636, the City of La Mirada refused to permit certain

3

measures. MPSJ at 9. This assertion is not accompanied by a citation to the record and

4

Plaintiffs were unable to find any support for it in the Hikida, Reeves or Elmer Declaration,

5

much less documentary proof from the City of La Mirada. In the absence of such evidence, it

6

is impossible -- and unnecessary -- for Plaintiffs to respond. See Nissan Fire & Marine, 210

7

F.3d at 1102-03.

8

3, 60 & 63. TBC Has Not Satisfied its Burden of Proof to Demonstrate that

9

Remedies are Technically Infeasible.

10

With respect to alterations, the ADAAG provides a defense where compliance is

11 “technically infeasible.” Id. § 4.1.6(1)(j). A measure is “technically infeasible” if it would

12 require alteration of a load-bearing member or because “other existing physical or site

13 constraints” prohibit full compliance. Id. TBC has stipulated that it has the burden of proof of

14 demonstrating that compliance was technically infeasible. Joint Status Conference Statement

15 (Docket No. 157) at 6. TBC invokes the “technically infeasible” defense in three subsections:

16 3, 60 and 63. In no case does it satisfy its burden to show that compliance would require

17 altering a load-bearing member or that other site constraints prohibit compliance.

18

In subsection 3, TBC makes the bare assertion that compliance with respect to the ramp

19 landings at store 829 was technically infeasible. MPSJ at 10. It provides no evidence

20 whatsoever for this assertion, or even a description of how it believes the defense applies. It

21 has not satisfied its burden of proof as to technical infeasibility.

22

In subsections 60 and 63, TBC claims that compliance with respect to the maneuvering

23 clearance at restroom doors in 20 stores was technically infeasible. MPSJ at 37-38, 40. As an

24 initial matter, seven of those stores (5512, 5636, 5641, 19344, 19509, 20180, and 20353) were

25 stipulated as built after January 26, 1993. See Docket No. 241 at 5, 8. As such, the

26 “technically infeasible” defense does not apply to these stores. See ADAAG § 4.1.6(1)(j)

27 (defense applies to alterations). With respect to the remainder, TBC has not provided any

28
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1 evidence that compliance is technically infeasible. In each case, the problem is insufficient

2 room on the pull side of a restroom door. In each, compliance could be achieved by the use of

3 automatic door openers. TBC does not provide any explanation -- much less evidence -- of

4 why such a solution would be technically infeasible.

5

Its references to the Special Master’s reports are equally unavailing. With respect to

6 store 829, the Special Master provided a feasible solution -- installing a new lavatory -- merely

7 noting that the alternative solution of moving the walls was technically infeasible. Docket No.

8 217-5 at 63. The restroom door maneuvering clearance at the men’s room in store 3112 was

9 not addressed by Plaintiffs’ expert, so it is not clear why it is included in subsection 60.

10 Compare MPSJ at 38 with McSwain Ex. 3 at 103. The Special Master made no commentary

11 about feasibility whatsoever with respect to the restroom doors in store 3390. Docket No. 224-

12 7 at 59-65, 80-85. With respect to the remainder of the stores, the Special Master noted that it

13 was technically infeasible to alter the walls; he did not address the feasibility of installing 14 automatic door openers.20

15

4. In New Construction, TBC Is Required to Provide An Accessible

Route Within the Boundary of the Site from Public Transportation

16

and Public Streets or Sidewalks.

17

The ADAAG requires that, in new construction, “[a]t least one accessible route . . .

18 shall be provided within the boundary of the site from public transportation stops, . . . and

19 public streets or sidewalks, to an accessible building entrance.” Id. § 4.1.2(1). In 43 stores,

20 Mr. McSwain opined that no such accessible route was provided because the public sidewalk

21 contained excessive slope or cross slope where it crossed the driveway. See Robertson Ex. 29.

22 TBC argues that it “does not have the ability to make modifications within the public right-of-

23 way.” See, e.g., Elmer Ex. 18 at 1, 8, 14, 48. This is irrelevant with respect to any stores built

24

20
25

See Docket No. 217-7 at 88 (store 955); Docket No. 223-7 at 84 (store 3145); Docket

No. 223-10 at 60 (store 3184); Docket No. 226-9 at 83 (store 4325); Docket No. 227 at 85

26 (store 4343); Docket No. 227-6 at 88 (store 4558); Docket No. 228 at 84 (store 4617); Docket No. 228-2 at 78 (store 4622); Docket No. 228-7 at 85 (store 4799); Docket No. 229 at 84 (store

27 5081); Docket No. 229-6 at 81 (store 5512); Docket No. 229-10 at 83 (store 5636); Docket No. 230 at 82 (store 5641); Docket No. 235-8 at 53 (store 19344); Docket No. 237-1 at 57, 74

28 (store 19509); Docket No. 238 at 64 (store 20180); and Docket No. 238-6 at 62 (store 20353).

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1 after January 26, 1993.21 If TBC was unable to modify the public right-of-way, it had the

2 obligation to provide an accessible route through some other means. The only defense to full

3 compliance in new construction is that it is “structurally impracticable” to do so. 42 U.S.C.

4 § 12183(a)(1); see also Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001) (holding

5 that “structural impracticability” is the only defense to compliance in new construction). TBC

6 has made no argument and provided no evidence that it was structurally impracticable to

7 provide an accessible route from the sidewalk to the front door in each of these restaurants.

8

Because -- since 1981 -- Title 24 has required that “[s]ite development and grading shall

9 be designed to provide access to primary entrances . . .,” id. (1981) § 2-7101(a), discussion of

10 the remaining restaurants, built prior to January 26, 1993, is premature. See infra at 50.

11

5. TBC’s Assertions with Respect to One Element Each At Stores 4622

and 20310 Are Disputed Issues of Fact.

12

TBC argues that the east ramp at store 4622 and the turn knobs on the patio doors at

13

store 20310 are not for use by customers with disabilities. MPSJ at 12. It was Mr. McSwain’s

14

opinion that the former was required to be accessible. See McSwain Ex. 3 at 205. TBC

15

provides no expert opinion to rebut this; it is at most a disputed issue of fact.

16

TBC’s assertion that the turn knobs on the patio doors at store 20310 are “used only by

17

building security,” is incorrect. MPSJ at 12. When Mr. McSwain surveyed the store, he had to

18

turn the turn knob in photo EMP031351 to get from the patio back into the restaurant.

19

McSwain Decl. ¶ 2 and Ex. 222 at EMP031351 & EMP031353.

20

6 & 7.

The Parties Agreed That a Maximum 6.6% Running Slope and 3%

21

Cross Slope Would Be Acceptable.

22

The ADAAG limits the running slope of an accessible route to 1:20 or 5%; cross slope

23 is limited to 1:50 or 2%. Id. § 4.3.7. The parties stipulated that they would accept a slope up to

24 a maximum of 6.6% running slope and 3% cross slope. See Robertson Ex. 2.

25

26 21

The following stores -- as to which TBC asserted this defense -- were stipulated as built

27 after January 26, 1993: 99, 3079, 3152, 5513, 9489, 15573, 16140, 16812, 17363, 17471, 17751, 18606, 18687, 19289, 19344, 19591, 19744, 20180, and 20578. See Docket No. 241 at

28 1, 3, 5-8.

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1

While the citation to the Meet and Confer Charts in subsection 6 is inappropriate, see

2 supra at 28-29, it is not necessary to establish that a 6% running slope is acceptable, in light of

3 the agreement that 6.6% will be acceptable. This does not, however, indicate that “such cross-

4 slope in accessible walkways,” MPSJ at 12 (emphasis added), is acceptable. Although the

5 reference to “cross-slope” in this subsection of the MPSJ may have been a typographical error,

6 it is clear that the agreement to 6.6% as an acceptable measurement was limited to slope and

7 not cross-slope. See Robertson Ex. 2. TBC’s attempt, in subsections 6 and 7, to justify cross-

8 slopes greater than 3% is improper because it deviates from the parties’ stipulation.

9

11 & 12. The ADAAG Requires Handrail Extensions At the Top and Bottom

of Ramps In the Direction of The Ramp.

10

Wherever handrails are not continuous, they must extend 12 inches beyond the top and

11

bottom of the ramp. ADAAG § 4.8.5(2). Mr. McSwain opined that the ramps at stores 4622

12

and 17572 violated this provision. See McSwain Ex. 3 at 205, 317. TBC argues that this is

13

incorrect, but does not provide either factual evidence that the handrails have proper extensions

14

or expert evidence that Mr. McSwain’s opinion is incorrect.

15

13. Plaintiffs’ Expert Used the Proper Method to Measure Ramp

16

Landings.

17

The ADAAG requires that ramp landings be at least 60 inches long. ADAAG

18 § 4.8.4(2). TBC challenges Mr. McSwain’s measurement of the bottom ramp landing at store

19 22691 on the theory that he measured only to the expansion joint. MPSJ at 14. There are two

20 problems with this argument. First, TBC is incorrect concerning Mr. McSwain’s measurement

21 methodology: he measured the relevant slopes rather than stopping at an expansion joint.

22 McSwain Decl. ¶ 7. In any event, TBC is attempting to rebut Mr. McSwain’s expert opinion

23 that the landing -- properly measured -- was 56½ inches long by simply asserting that portions

24 of the landing beyond that length were “between 2.2% and 2.7% running slope.” MPSJ at 14.

25 TBC does not provide expert testimony to support this assertion, and the testimony they

26 purport to provide -- apparently paragraph 57 of the Elmer Declaration, though this is not cited

27 in the MPSJ -- is not based on personal knowledge. In the absence of such support, this is, at

28
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1 the very least, a disputed issue of fact.

2

15. The Ramp At Store 22691 Requires A Handrail.

3

The ADAAG requires that ramps have handrails under certain conditions. Id. § 4.8.5.

4 Mr. McSwain opined that the upper portion of the ramp at store 22691 required handrails.

5 McSwain Ex. 3 at 410. TBC argues that this ramp is “better characterized as a curb ramp,”

6 MPSJ at 14, but offers no support -- expert, photographic, or otherwise -- for this assertion. In

7 the absence of such support, this is at the very least a disputed issue of fact.

8

17. The ADAAG Requires that Accessible Parking Be On the Shortest

Route of Travel from Adjacent Parking to an Accessible Entrance.

9

The ADAAG requires that “[a]ccessible parking spaces serving a particular building

10

shall be located on the shortest accessible route of travel from adjacent parking to an accessible

11

entrance.” Id. at 4.6.2. At store 17984, Mr. McSwain opined that “[t]he accessible parking

12

spaces, located beyond the southwest corner of the building, are not located on the shortest

13

route to the building entrance.” McSwain Ex. 3 at 321. TBC does not dispute this, nor does it

14

provide any expert opinion concerning the application of Section 4.6.2, nor does it provide any

15

evidence of any kind relating to store 17984 -- the only store at which Mr. McSwain found a

16

violation of this provision. TBC’s argument consists merely of stating generally that adjacent

17

parking “could be quite a distance away from the store entrance.” MPSJ at 16. Mr. McSwain’s

18

finding is undisputed; this is at least a disputed issue of fact precluding summary judgment.

19

18. The ADA Requires Access Aisles to Extend the Full Length of

20

Accessible Parking Spaces.

21

The ADAAG requires van accessible parking spaces to be “served by an access aisle 96

22 [inches] . . . wide.” Id. 4.1.2(5)(b). TBC disputes Mr. McSwain’s application of this provision

23 to diagonal parking spaces. See MPSJ at 16-17. While the ADAAG does not directly address

24 the question of diagonal parking spaces and does not require any particular length, it clearly

25 requires that the access aisle extend the entire length of the parking space provided. See id.

26 Fig. 9. The Department of Justice has issued a publication describing how van accessible

27 parking is used. ADATA: Americans with Disabilities Technical Assistance (No. 1, Aug.

28
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1 1996).22 This publication provides excellent illustrations of van-users exiting their vans into

2 the access aisle. See id. at 13-15. These illustrations make clear that, in order to be useable,

3 the access aisle must serve the entire van accessible parking space, whether in the ordinary

4 parallel configuration or in a diagonal or sawtooth configuration.

5

Because, in a number of stores, TBC’s diagonal parking did not provide an access aisle

6 the full length of van accessible spaces, Mr. McSwain opined that they were in violation of the

7 ADAAG. See McSwain Ex. 3 at 8, 17, 53, 86, 101, 106, 110, 117, 326. TBC offers no expert

8 rebuttal of this opinion or of Mr. McSwain’s methodology. See MPSJ at 16-17. It asserts that

9 “the ADAAG does not endorse such methodology,” MPSJ at 17, but provide no citations in

10 support of this assertion.

11

23. The ADAAG Requires that Parking Signs Be Visible Over Parked

Vehicles.

12

The ADAAG requires that signs at accessible parking spaces “be located so they cannot

13

be obscured by a vehicle parked in the space.” Id. § 4.6.4. TBC asserts that the ADAAG does

14

not provide a minimum parking sign height, MPSJ at 18, but does not cite -- either in the MPSJ

15

or Exhibit 18 -- to any examples of signs from Mr. McSwain’s expert report that it believes

16

were compliant with Section 4.6.4. TBC does not identify the stores to which this applies;

17

however, in each case in which Mr. McSwain notes that the height of a parking sign is in

18

violation, it is because it is likely not visible over parked cars. McSwain Ex. 3 at 9, 52, 202,

19

208, 210, 304.

20

37. The Threshold at the Doorway in Store 176 Violates the ADAAG.

21

Thresholds at doorways and other changes in level are limited to half an inch and must

22

be beveled. ADAAG §§ 4.5.2, 4.13.8. The parties have agreed that changes in level may only

23

be d" if unbeveled, and that thresholds may be up to ¾ " if beveled. Robertson Ex. 2 at 1. Mr.

24

McSwain opined that, at restaurant 176, there was a “2" gap at main entrance threshold with [a]

25

1/2" unbeveled change in level.” McSwain Ex. 3 at 5. This violates the parties’ agreed

26

27 22

Available at http://www.usdoj.gov/crt/ada/adata1.pdf (last visited Nov. 3, 2009)

28 (attached as Exhibit 4 to the Robertson Declaration).

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1 acceptable measurements. Mr. McSwain also provided several photos, showing a side view of

2 the threshold, in one case with a level and a tape measure that show the depth of the change in

3 level. See McSwain Ex. 8 at EM01075, EM01077.

4

TBC counters that its photographs “depict little to no change in level.” MPSJ at 24. As

5 an initial matter, it did not provide these photographs to the Court, so under Rule 56(c) and (e),

6 summary judgment would be inappropriate. In addition, it offers no expert testimony to rebut

7 Mr. McSwain’s opinion. Ultimately, too, it is interesting to observe the photographs that TBC

8 believes prove its point: both are taken from above, looking directly down on the change in

9 level, with no attempt to measure it. See Boothby Ex. 2.

10

38. The Parties Agreed to the Applicable Standard for Floor Mats.

11

TBC argues that “the ADAAG does not contain any enforceable standard as to floor

12 mats.” MPSJ at 25. While Plaintiffs disagree as a legal matter, this is irrelevant: TBC has

13 stipulated to the applicable standard. The ADAAG requires that floor surfaces be “stable, firm

14 and slip-resistant.” Id. § 4.5.1. TBC agreed with Plaintiffs that “floor mats that are rubberized

15 and have beveled edges will be considered to provide a stable, firm and slip-resistant surface,

16 provided that they are maintained in such a condition that they do not otherwise violate the

17 requirement by having frayed edges or edges that are curled up.” Robertson Ex. 11 at 4 (R.

18 Hikida letter dated Dec. 15, 2006). The floor mats cited by Mr. McSwain as violations were in

19 violation of the agreed standard. See Robertson Ex. 30.

20

39. Self-Service Items Must be Accessible to People with Disabilities.

21

Apparently because they were stored in an inaccessible alcove in one store, TBC has

22 announced that, because they weigh up to 20 pounds, high chairs are “full service item[s] for

23 the mobility impaired.” MPSJ at 26. That is, while individuals without disabilities can retrieve

24 high chairs on their own, even those individuals with disabilities who would have no problem

25 lifting 20 pounds may be denied independent access. TBC provides no legal or expert support

26 for this inequality -- for good reason: Title III requires that individuals with disabilities be

27 provided equal accommodations. See, e.g., 42 U.S.C. § 12182(b)(1)(A)(ii). While individuals

28
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1 with disabilities who cannot lift 20 pounds should be able to request assistance, those who are

2 able to retrieve the high chairs on their own should not be prevented from doing so. There is

3 no excuse for TBC’s practice of storing high chairs in inaccessible locations.

4

42. Accessible Counters Must Remain Unobstructed.

5

The ADAAG requires that counters with cash registers have a portion that is at least 36

6 inches long that is at most 36 inches high. Id. § 7.2(1). In many restaurants, although such a

7 counter was present, it was covered with obstructions such as advertising placards, donation

8 banks, and other objects. See Robertson Ex. 31. This violates the requirement that features

9 that are required to be accessible be “maintained in operable working condition.” 28 C.F.R.

10 § 36.211. The DOJ’s interpretive guidance makes it clear that this requires that “accessible

11 routes are properly maintained and free of obstructions,” Preamble to Regulation on

12 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial

13 Facilities, 28 C.F.R. pt. 36, app. B, at 720 (2009) (“Preamble”), so they can be “readily

14 accessible to and usable by individuals with disabilities.” 28 C.F.R. § 36.211(a); see also infra

15 at 42-45. Mr. McSwain opined that these obstructed counters were in violation; TBC provides

16 no expert testimony to rebut this opinion.

17

46. When A Side Reach is Over an Obstruction, the Height of the

Obstruction is Limited to 34 Inches.

18

The ADAAG governs the height of objects that individuals with disabilities must reach

19

to retrieve or operate. Objects that can be reached from a side approach can be no higher than

20

54 inches from the floor. Id. § 4.2.6. If the individual must reach over an obstruction that is

21

deeper than 10 inches back, the obstruction is limited in height to 34 inches and the reach

22

height is limited to 46 inches. Id. and Fig. 6(c). When the item to be reached is an automatic

23

teller machine (“ATM”), the ADAAG provides a separate sliding scale of reach height and

24

depth; however, nothing in that scale or the other ATM provisions changes the 34-inch limit on

25

the obstruction. Id. at 4.34, specifically 4.34.3(2)(b).

26

TBC attempts to avoid the requirements of Section 4.2.6 and Figure 6(c) in several

27

ways. First, it argues that Figure 54 shows a 54-inch reach over an obstruction that exceeds 34

28

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1 inches in height. MPSJ at 29. Figure 54, however, does not provide a dimension for the

2 obstruction, so TBC’s assertion is apparently based simply on eyeballing the diagram and

3 guessing at the height. Using this approach, it appears equally clear that the item reached for --

4 the napkin holder -- is less than ten inches back, which would not constitute a reach over

5 obstruction pursuant to Figure 6.

6

TBC next argues that the ATM reach ranges are applicable to other items as well, but

7 provides no legal or expert support for this. See MPSJ at 29-30. To the contrary, it is hard to

8 explain why the drafters of the ADAAG would have provided a separate scale of reach ranges

9 for a specific type of device -- ATMs -- if they intended it to supercede the clearly-articulated

10 general standard in Section 4.2.6 and Figure 6. Finally, TBC again attempts to justify its

11 approach based on positions Plaintiffs took in settlement negotiations, see MPSJ at 29, an

12 approach Plaintiffs have demonstrated is improper. See supra at 28-29.

13

47. Plaintiffs’ Expert Properly Measured Reach Ranges at Condiment

and Tableware Dispensers.

14

Since the purpose of reaching condiment and tableware bins is to be able to reach the

15

condiments and tableware they contain, Mr. McSwain measured to the back of each of the bins,

16

to ensure that individuals with disabilities would be able to reach items even if only a few items

17

remained. McSwain Decl. ¶ 8. TBC asserts that it “challenges such measurement

18

methodology,” MPSJ at 32, but provides no expert or other support for the proposition that this

19

methodology is improper. Its assertion that the Special Master used a different method is also

20

unsupported.

21

49. All of the Site Inspections Were Planned at Least A Week In

22

Advance And Were Accompanied by TBC Personnel.

23

TBC argues that “[m]any of Mr. McSwain’s inspections occurred before stores were

24 open for business to the general public and had restocked” various bins. MPSJ at 33.

25 However, all of Mr. McSwain’s surveys were scheduled ahead of time, generally at least a

26 week in advance, McSwain Decl. ¶ 4, so TBC had ample opportunity to restock before the

27 surveys. In addition, Mr. McSwain was accompanied on every survey by a representative of

28
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1 TBC, id., yet TBC provides no support for the assertion that Mr. McSwain’s surveys addressed

2 bins that had not yet been filled for the day and indeed identifies no specific bins to which it

3 believes this argument applies.

4

50. Tray Slides at Drink Dispensers are Limited to 34 Inches in Height.

5

Tray slides at food service lines are limited to 34 inches in height. ADAAG § 5.5. Mr.

6 McSwain has the opinion that tray slides at drink dispensers fall into this category. McSwain

7 Decl. ¶ 9. TBC argues that drink dispensers are subject to ADAAG § 5.6. MPSJ at 33.

8 While Section 5.6 governs the height of the drink dispensers themselves, it does not address the

9 height of the tray slides that serve them, an item addressed only in Section 5.5, and in that

10 section, limited to 34 inches. TBC provides no expert testimony to rebut Mr. McSwain’s

11 opinion that the tray slides at drink dispensers are governed by Section 5.5.

12

TBC appears to argue that the California Retail Health Code prevents it from

13 complying with this requirement. MPSJ at 33. TBC does not explain which tray slides it

14 believes this applies to, and it is belied by the instances in which TBC claims to have installed

15 a 34-inch-high tray slide at its drink machines. See, e.g., Elmer Ex. 18 at 184, 195, 562-63.

16

57. Plaintiffs Have Standing to Challenge the Force Required to Use

Doors and Hardware.

17

TBC argues that the Court has already ruled that Plaintiffs “lack standing to litigate

18

hardware.” MPSJ at 36. Although the MPSJ does not provide any examples of the elements

19

this argument addresses, Elmer Exhibit 18 cites “standing” as grounds to challenge door force,

20

id. at 95, 389, 517, 678, and the force necessary to operate faucets and flush controls, id. at 512,

21

626, 907.

22

In August, 2005, the Court held that Plaintiffs lacked standing to address two discrete

23

elements: continuous toilet paper rolls; and hardware useable with one hand. Docket No. 188

24

at 5. The ruling addressing hardware was limited to the question whether controls were

25

“‘operable with one hand’ and [did] not . . . “require tight grasping, pinching or twisting of the

26

wrist.’” Id. at 5 n.2; see also Def.’s Opening Br. on Issues 1(c) and 1(d) of the Joint Pre-Trial

27

Briefing Schedule (Docket No. 161) at 14 (challenging only standing as to hardware that was

28

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1 not “useable with one hand without tight grasping, pinching or twisting;” no mention of force

2 necessary to operate doors, faucets or flush handles); Robertson Ex. 6 at 2-3 (J. Dasteel

3 2/15/2005 letter listing “those elements . . . that Taco Bell contends do not affect the Plaintiff

4 class” and limiting hardware challenge to “[h]ardware usable with one hand.”). Thus Plaintiffs

5 have standing to challenge the force necessary to open doors or use faucet and flush handle

6 hardware.

7

58. Plaintiffs’ Expert Properly Measured the Force Necessary to Open

Doors and Operate Bolts.

8

The ADAAG limits the amount of force that must be exerted to open an interior door,

9

such as the restroom doors at TBC restaurants, to five pounds, id. § 4.13.11(2)(b). In a separate

10

section, it limits the amount of force required to operate “controls and operating mechanisms”

11

to five pounds as well. Id. 4.27.4. TBC’s argument that the former section does not address

12

the force needed to retract a bolt, MPSJ at 36, ignores the separate section (4.27.4) that governs

13

mechanisms such as bolts. Although the MPSJ does not list any elements to which this

14

argument applies, the elements in which Mr. McSwain addressed bolts are all examples of a

15

failure to maintain such mechanisms, see infra Section III.B.65/83, so that they can be used

16

with less than five pounds of force. See McSwain Ex. 3 at 34, 158, 217, 294.

17

62. The California Health Code Does not Permit TBC to Remove

18

Restroom Door Closers; the Required Clearance is 48 Inches.

19

When a door that pushes into a restroom must be approached from the latch side, if that

20 door has a closer, it is required to have 48 inches of depth perpendicular to the face of the door.

21 ADAAG § 4.13.6, Fig. 25(c). In a number of restrooms, in Mr. McSwain’s opinion, TBC did

22 not provide maneuvering clearance that complied with this standard. Robertson Ex. 26. TBC

23 argues in its MPSJ that, where the door does not have a closer, the clearance is permitted to be

24 only 42 inches. Id. at 39. In Exhibit 18, it asserts -- with respect to at least 50 restroom doors

25 -- that TBC has removed the door closer. Robertson Ex. 28.

26

The California Retail Food Code, however, prohibits TBC from removing door closers

27 in its restaurants. Section 114276(c) of that Code governs toilet rooms at permanent food

28
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1 facilities and requires that “[t]oilet rooms shall be separated by well-fitted, self-closing doors

2 that prevent the passage of flies, dust, or odors,” and that “[t]oilet room doors shall be kept

3 closed except during cleaning and maintenance operations.” Cal. Health & Safety Code

4 § 114276(c). With the state law-required closer, the ADAAG-required push side clearance is

5 48 inches; these elements remain out of compliance.

6

65 & 83. Moveable Objects May Not Obstruct Required Accessible Routes

and Clear Floor Space and TBC Is Required to Maintain the

7

Accessibility of its Restaurants.

8

TBC argues that “moveable objects such as trash cans are not architectural barriers” and

9 are therefore not governed by the ADA, MPSJ at 40-42, and that “maintenance issues cannot

10 trigger ADA liability.” Id. at 49. This is incorrect. Where moveable objects consistently

11 obstruct required clear floor space and accessible routes, they are governed -- and prohibited --

12 by the ADA, because ADA regulations require that required accessible features be maintained

13 in an accessible state.

14

The Department of Justice (“DOJ”) regulations implementing Title III require that a

15 public accommodation “maintain in operable working condition those features of facilities and

16 equipment that are required to be readily accessible to and usable by persons with disabilities.”

17 28 C.F.R. § 36.211(a); see also Moeller, 220 F.R.D. at 606 (quoting 28 C.F.R. § 36.211(a)). In 18 the DOJ’s interpretation -- which is entitled to deference23 -- this regulation

19

recognizes that it is not sufficient to provide features such as accessible routes,

elevators, or ramps, if those features are not maintained in a manner that enables

20

individuals with disabilities to use them. Inoperable elevators, locked accessible

doors, or “accessible” routes that are obstructed by furniture, filing cabinets, or

21

potted plants are neither “accessible to” nor “usable by” individuals with

disabilities.

22

Preamble at 720 (emphasis added). While isolated or temporary obstructions are not

23

prohibited, allowing obstructions to persist or “[f]ailure . . . to ensure that accessible routes are

24

properly maintained and free of obstructions . . . would also violate this part.” Id.; see also

25

26 23

“As the agency directed by Congress to issue implementing regulations, see 42 U.S.C. §

27 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, § 12206(c), and to enforce Title III in court, § 12188(b), the Department’s

28 views are entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998).

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1 ADA Technical Assistance Manual, § III-3.7000.24

2

In addition, while it is true that the Access Board drafted the ADAAG to apply to fixed

3 elements, Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707,

4 712 (D. Colo. 2004), the ADAAG does require, for example, clear floor space in restrooms.

5 See, e.g., id. § 4.22.3 “Clear floor space” is defined by the ADAAG as “[t]he minimum

6 unobstructed floor or ground space required to accommodate a single, stationary wheelchair

7 and occupant.” Id. § 3.5 (emphasis added); see also Terry Decl ¶ 3 (“Movable objects are not

8 allowed to obstruct door maneuvering clearances, clear floor spaces, accessible routes, or any

9 other required accessible spaces or elements”).

10

Most important, the ADA itself and its regulations address how the elements mandated

11 by the ADAAG are to be used and maintained. The Ninth Circuit made this relationship

12 explicit in Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004). In that

13 case, a theater with ADAAG-compliant accessible seating did not have a policy requiring non-

14 disabled patrons to give precedence to disabled patrons in the use of that seating. Id. at 1078.

15 The defendant argued that its compliance with the ADAAG was sufficient; that nothing more

16 was required. Id. at 1083-84. The Ninth Circuit disagreed, holding that while the ADAAG

17 governed the design of the facility, “in cases such as Fortyune’s, which concern a public

18 accommodation’s policy regarding the use of that design . . . the provisions of the ADAAG are

19 not controlling.” Id. at 1085. Rather, the provision of the statute requiring “full and equal

20 enjoyment” of places of public accommodation governs. See id. (citing 42 U.S.C. § 12182).

21 Furthermore, “[p]olicies effectuating the ADAAG may be required to fulfill the statutory

22 purpose of 42 U.S.C. § 12182.” Id. at 1085 n.4; see also Celano, 2008 WL 239306, at *11-12

23 (citing Fortyune for the proposition that it is not necessary to prove a violation of the ADAAG

24 to prove a violation of the ADA; in the absence of the former, the latter governs).

25

One of the cases on which TBC relies explicitly applied Section 36.211 to moveable

26 objects obstructing required accessible routes, and denied the defendant’s motion for summary

27
24
28

Available at http://www.ada.gov/taman3.html (last visited Nov. 8, 2009).

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1 judgment on the grounds that “disputed facts remain[ed] as to whether [the defendant] had a

2 practice of failing to remove obstructions from accessible routes of travel or parking spaces.”

3 Eiden v. Home Depot USA, Inc., 2006 WL 1490418, at *13 (E.D. Cal. May 26, 2006); see also

4 Cherry v. City Coll. of San Francisco, No. C 04-04981 WHA, slip op. at 13 (N.D. Cal. Jan. 12,

5 2006) (“Any blockage beyond a reasonable period of time is actionable.”), both cited in MPSJ

6 at 41.

7

In the present case, Plaintiffs have presented extensive evidence that TBC has a practice

8 of failing to remove obstructions from required clear floor spaces and other accessible

9 elements: moveable trash cans that obstruct restroom clear floor space; loose toilet paper rolls

10 that obstruct grab bars; and advertising placards, donation banks and other objects that obstruct

11 accessible counters. See Robertson Ex. 35. Indeed, many of the moveable trash cans were

12 noted by the Special Master, were removed by Alianza, and were back in place when surveyed

13 by Mr. McSwain. See id. Ex. 36. Class members make clear that these moveable obstructions

14 pose real barriers to the “full and equal enjoyment” of TBC restaurants. For example, while

15 TBC appears to argue that moveable trash cans are light enough to be pushed out of the way,

16 see Elmer Decl. ¶ 31, Named Plaintiff Katherine Corbett explains that, when she tries to do

17 this, “[m]ost often what happens is that the trash can tips over and becomes a larger barrier

18 than before because it falls on its side.” Corbett Decl. ¶ 3. Named Plaintiff Craig Yates

19 explains that, with a restroom trash, the result can be disgusting: after the trash can tips over,

20 there is no room to maneuver except over the spilled trash, which then gets stuck in the wheels

21 and driveshaft of the wheelchair. Yates Decl. ¶ 3; see also Pliska Decl. ¶ 5; Mortimer Decl.

22 ¶¶ 8-9; Grassi Decl. ¶ 7.

23

As underscored by this testimony, the ADA’s requirement of “full and equal

24 enjoyment,” 42 U.S.C. § 12182(a), the regulatory requirement that accessible features be

25 maintained accessible and obstruction-free, 28 C.F.R. § 36.211, and the ADAAG requirement

26 that clear floor space be “unobstructed,” all require that TBC have policies in place preventing

27 obstructions of accessible elements, including trash cans in restroom clear floor space and

28
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1 placards and the like on accessible counters. Plaintiffs’ evidence demonstrates that any such

2 policies are ineffective.

3

TBC did not address Section 36.211, the DOJ’s interpretation, the Technical Assistance

4 Manual, or Fortyune. See generally MPSJ at 40-42. TBC’s interpretation -- that the ADA in

5 no way addresses moveable objects -- is not only contrary to the letter of the statute, the

6 regulations, the DOJ’s interpretation, and governing Ninth Circuit precedent, it would also

7 completely frustrate the goals of the ADA that facilities be “readily accessible to and useable

8 by individuals with disabilities.” See, e.g., 42 U.S.C. § 12183(a). It would permit TBC to

9 place an advertising stand -- or even the potted plant explicitly addressed in the DOJ

10 interpretation, see Preamble at 720 -- directly in the path of travel to the counter, completely

11 preventing customers in wheelchairs from ordering food.

12

The cases on which TBC relies are either factually or legally inapposite. As noted

13 above, Eiden actually favors Plaintiffs, having denied summary judgment on the grounds that

14 the defendant’s access-maintenance policies were disputed issues of fact. Others simply fail to

15 address the governing regulation and Ninth Circuit precedent. Massachusetts v. E*Trade

16 Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006); Martinez v. Home Depot USA, Inc., 2007

17 WL 926808, at *4-*5 (E.D. Cal. Mar. 27, 2007); Wilson v. Norbreck LLC, 2006 WL 2651139

18 (E.D. Cal. Sept. 15, 2006); Hubbard v. Sobreck, LLC, No. 04cv1129 WQH (S.D. Cal. Aug. 7,

19 2006) (Collins Ex. 6); Ass’n of Disabled Ams., Inc. v. Key Largo Bay Beach, LLC, 407 F.

20 Supp. 2d 1321 (S.D. Fla. 2005). Two are distinguishable by the fact that the plaintiff -- a single

21 plaintiff addressing a single barrier in a single facility -- did not provide evidence that the

22 barrier was anything other than isolated and temporary. Chapman v. Pier 1 Imports, 2006 WL

23 1686511, at *9 (E.D. Cal. June 19, 2006); Jones v. Wild Oats Mkts, Inc., No. 04-1018-WQH

24 (WMc), slip op. at 19 (S.D. Cal. Nov. 29, 2005) (Collins Ex. 7).

25

66 & 81. Forward Reach is Not Permitted To Extend Beyond the Available

Toe Space.

26

The ADAAG governs the location and dimensions of reach ranges. Forward reaches

27

are governed by Section 4.2.5 and Figure 5. Figure 5 specifically limits forward reach to a

28

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1 distance less than the available toe space. This is indicated by the fact that the available toe

2 clearance is denominated as “z” in Figure 5 and the forward reach as “x.” The note under

3 Figure 5 states that “z shall be $ x,” or toe clearance shall be greater than or equal to the

4 forward reach. In spite of this clear language, TBC argues in subsection 81 that forward reach

5 can extend beyond available toe space and offers in support a figure from the appendix, see

6 MPSJ at 49, which the ADAAG itself cautions “contains materials of an advisory nature.”

7 ADAAG Appx. at A1. It also relies on the manufacturer’s recommendation for its wall-

8 mounted trash cans; such a recommendation cannot overrule the applicable ADAAG standard

9 in Figure 5. The wall-mounted trash can in store 526 -- the subject of MPSJ subsection 66 --

10 violates this standard. See McSwain Ex. 3 at 10 and Ex. 12 at EM05080; EM05083;

11 EM05088-93.

12

67. Restroom Floors May Have a Maximum Slope of 2%.

13

TBC is correct that the general standards for accessible routes apply to restroom floors.

14 MPSJ at 43. Its application of that principle to the required slope is, however, incorrect. There

15 are two kinds of slope: “running slope,” which is slope parallel to the direction of travel; and

16 “cross slope,” which is perpendicular to the direction of travel. See ADAAG § 3.5. Accessible

17 routes may have a running slope of up to 5%, id. § 4.3.7, or up to 8.33% in the case of a ramp,

18 id. § 4.8.2. Cross slope is, however, limited to 2%. Id. § 4.3.7. Because individuals who use

19 wheelchairs may turn and move at various angles throughout a restroom, any slope may, at any

20 time, be perpendicular to the user’s direction of travel, that is, cross slope. Because of this,

21 slope of restroom floors is limited to 2%. McSwain Decl. ¶ 11. Mr. McSwain included in his

22 report restroom floors near floor drains the slope of which exceeded 3%, the parties’ acceptable

23 measurement for cross slope of an accessible route. See Robertson Ex. 32.

24

70. The ADAAG Only Permits Lavatories to Encroach in the Clear

Floor Space Around Toilets.

25

TBC argues that Plaintiffs misapply Figure 28 of the ADAAG, which sets out the

26

minimum clear floor space that must surround a toilet. TBC states that the figure permits

27

“fixtures such as lavatories” to encroach. MPSJ at 44 (emphasis added). That is inaccurate.

28

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1 Figure 28 shows one permissible type of object encroaching in the far corner of the clear floor

2 space: a lavatory. There is no indication that other types of fixtures or objects may encroach.

3 Thus, for example, in restaurant 3027, a loose trash can encroaches. McSwain Ex. 3 at 77; see

4 also id. at 184 (urinal encroaches in store 4343); 197 (same at store 4578). These obstructions

5 to the clear floor space are not permitted.

6

72. The ADAAG Requires The Front End of Side Grab Bars To Be A

Minimum of 54 Inches from the Rear Wall.

7

TBC argues that the ADAAG does not require the front end of the side grab bar to be

8

“exactly 24 inches in front of the front end of the water closet.” MPSJ at 46. That is correct;

9

that requirement is in Title 24. See id. (2008) § 1115B.4.3.1. However, the ADAAG does

10

require that the front end of the side grab bar be a minimum of 54 inches from the rear wall.

11

See id. Fig. 29. While a number of side grab bars violate only the Title 24 standard -- and it is

12

thus premature to address them in this phase of the case, see infra at 50 -- a number of side

13

grab bars violate the ADAAG standard as well. McSwain Ex. 3 at 32, 60, 149, 264, 322.

14

73 & 74. The ADAAG Requires The Dispensing Point of Toilet Paper

15

Dispensers to Be A Maximum of 36 Inches from the Rear Wall.

16

Toilet paper dispensers must be installed within 36 inches of the wall behind the toilet.

17 See ADAAG Fig. 30(d). TBC argues that this only applies to toilet paper dispensers mounted

18 on the walls of toilet stalls, but not to those mounted on the walls of single-user toilet rooms.

19 MPSJ at 46-47. Mr. Terry offered his opinion concerning how to measure toilet paper

20 dispensers, concluding that “[t]he requirement is clearly intended to put the entire area where

21 dispensing might occur within 36 inches of the rear wall.” Terry Decl. ¶ 4. This principle

22 applies in both toilet rooms and toilet stalls. ADAAG § 4.16.6 -- applicable to water closets

23 generally -- requires that toilet paper dispensers be “within reach.” The ability to reach the

24 toilet paper is unrelated to the type of wall surface -- masonry wall or metal stall -- on which

25 the toilet paper dispenser is mounted. Terry Decl. ¶ 4. As a result, when determining what

26 satisfies the “within reach” standard of Section 4.16.6, architects and facility managers would

27 look to the requirement set forth in Figure 30, that is, the maximum of 36 inches from the rear

28
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1 wall. Id. As such, the 36 inch limitation in Figure 30 applies to all toilet paper dispensers. Id.

2

TBC offers no expert evidence in support of its position. It asserts that the defendants

3 in White v. Divine Investments, Inc., 2005 WL 2491543 (E.D. Cal. Oct. 7, 2005), “successfully

4 argued” that the provision applicable to toilet stalls was not applicable to water closets without

5 stalls. MPSJ at 46. This is incorrect. In fact, the court in White granted the defendants’

6 motion based on the fact that the plaintiff conceded she did not have standing to sue concerning

7 this element. Id. at *7. In footnote 18 of that decision, the court recited the defendants’

8 argument concerning the applicable provision, but did not decide the matter. The courts in

9 Martinez v. Home Depot USA, Inc., 2007 WL 926808, at *5 (E.D. Cal. Mar. 27, 2007) and

10 Wilson v. Norbreck, LLC, 2005 WL 3439714, at *4 (E.D. Cal. Dec. 14, 2005), apparently

11 agreed with TBC here, but did so without the benefit of expert evidence concerning the

12 interpretation of the phrase “within reach” in Section 4.16.6.

13

Furthermore, as Mr. Terry makes clear, the proper method to measure toilet paper

14 dispensers is so that the dispensing point is at most 36 inches from the rear wall. Terry Decl.

15 ¶ 5. When attempting to remediate its many noncompliant toilet paper dispensers, however,

16 TBC moved them to a point where the centerline is 36 inches from the rear wall. See

17 Robertson Ex. 33. Because the front dispensing point can be several inches farther from the

18 rear wall than the centerline, this is not compliant, and TBC’s attempt to remedy this element

19 has uniformly failed.

20

78 & 79. The ADAAG Requires That Hot Water and Drain Pipes Be

Insulated or Configured to Prevent Contact.

21

Mr. McSwain opined that the hot water pipes and drain pipes in a number of stores

22

were in violation of ADAAG Section 4.19.4, which requires that drains and hot water pipes be

23

insulated or configured to protect against contact. See Robertson Ex. 34. TBC’s MPSJ merely

24

recites this provision, but does not indicate how it applies in this case. See id. at 48. At several

25

locations in Elmer Exhibit 18, TBC asserts that the pipes have been “configured to prevent

26

contact,” see id. at 24-25, 87, 90, 100, 167, 169, 230, but provides no evidence -- expert,

27

photographic, declaration or otherwise -- to support this assertion. As such, this argument fails

28

Case No. C 02 05849 PJH JL Plaintiffs’ Memorandum in Opposition to Defendant Taco Bell Corp.’s Motion for Partial Summary Judgment

Page 48

Case4:02-cv-05849-PJH Document483 Filed11/10/09 Page63 of 64

1 under Rule 56(c) and (e)(1).

2

C. TBC’s Arguments That Do Not Contain Reference to the Elements to

Which They Apply Are Improper Requests for Advisory Opinions.

3

TBC makes arguments in subsections 6, 7, 17, 23, 26, 27, 29, 30, 32, and 34 of its Non-

4

Mootness Defenses, but does not identify which stores or elements they apply to, and Plaintiffs

5

were unable to locate examples in Exhibit 18. It is thus impossible to say whether these

6

argument have any relevance to this case and they should be denied as improper requests for an

7

advisory opinion. See Maldonado v. Morales, 556 F.3d 1037, 1044 (9th Cir. 2009) (“The role

8

of the courts is ‘neither to issue advisory opinions nor to declare rights in hypothetical

9

cases . . ..’”) (citation omitted).

10

D. Many of TBC’s Single-Store/Single-Element Arguments Suffer from the

11

Same Legal and Procedural Shortcomings As Discussed Above.

12

TBC makes a number of single-store and/or single-element arguments that have many

13 of the same shortcomings as discussed above. For example, TBC does not offer expert

14 testimony to rebut Mr. McSwain’s analysis of the following: the table at store 137 (subsection

15 25); the queue line at store 3904 (subsection 40); the counter in store 955 (subsection 41); the

16 counter in store 22691 (subsection 44); the floor sinks discussed in subsection 45; the job

17 application brochures in store 2918 (subsection 48); or the door maneuvering clearance at store

18 4633 (subsection 84).

19

According to Ms. de Beers, a number of elements are subject to frequent change; these

20 elements thus still require an injunction, for example: the directional signage in store 522325

21 (subsection 28), see de Beers Decl. ¶ 6(d)(i); the high chairs in store 18901 (subsection 31), see

22 id. ¶ 6(c)(ii); the tables in stores 18003 and 18808 (subsections 51 and 54), see id. ¶ 6(c)(vi).

23

The ADAAG requires insulation of hot water and drain pipes; TBC is correct that it

24 does not require insulation of cold water lines. See MPSJ at 48. This only came up when Mr.

25 McSwain observed that both supply lines were uninsulated, see, e.g., McSwain Ex. 3 at 36,

26

27 25

The MPSJ lists store 5523. See id. at 21. Plaintiffs do not know of a California

28 corporate store with this number. It is likely a typographical error for store 5223.

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Page 49

Case4:02-cv-05849-PJH Document483 Filed11/10/09 Page64 of 64

1 104, 257, or where pre-existing insulation had come loose. Id. at 363, 407. In each case, the

2 hot water supply line identified in that same item was in violation.

3

Finally, in subsection 61, TBC admits that the doors in question are in violation, but

4 argues that the violation is a “small shortfall.” See MPSJ at 38. However, a violation of the

5 ADAAG provides prima facie evidence of a barrier in existing facilities. See, e.g., Johnson,

6 2008 WL 2620378, at *4 n.3.

7

E. TBC’s Arguments That Address Title 24 Standards Are Premature.

8

Plaintiffs bring claims for injunctive relief under both the ADA and state law, and for

9 damages under state law. The current phase of the case addresses only ADA claims. Docket

10 No. 386 at 2-3. The Non-Mootness Defenses addressed in the following sections are not moot,

11 but, because they are addressed only by state law, any discussion of them at this stage is

12 premature: Section IV.B, subsections 4 (pre-1993 stores 137, 283, 863, 2423, 2918, 2961,

13 3027, 3055, 3070, 3160, 3196, 3209, 3222, 3471, 3579, 4325, 4510, 4578, 5223, and 5259

14 only), 8, 9, 10, 14, 16, 19, 20, 21, 22, 24, 33, 35, 36, 43, 52, 53, 55, 56, 59, 64, 68, 69, 71, 72

15 (stores 124, 991, 4799, 16819, 18377 and 22691), 75, 76, 77, and 82. These items are not

16 included in Robertson Exhibit 1.

17

CONCLUSION

18

For the reasons set forth above, Plaintiffs respectfully request that this Court deny

19 TBC’s motion for partial summary judgment.

20

21

Respectfully submitted,

22

FOX & ROBERTSON, P.C.

23

By: /s/ Amy F. Robertson

24

Amy F. Robertson, pro hac vice

25 November 10, 2009

Attorneys for Plaintiffs

26

27

28
Case No. C 02 05849 PJH JL Plaintiffs’ Memorandum in Opposition to Defendant Taco Bell Corp.’s Motion for Partial Summary Judgment

Page 50

 
 Case4:02-cv-05849-PJH Document487 Filed11/10/09 Page1 of 3

United States District Court For the Northern District of California

1

2

3

4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6

7

8 FRANCIE MOELLER, et al.,
9 Plaintiffs,
10 v.
11 TACO BELL CORP.
12 Defendant.
13 ____________________________/

No. C 02-5849 PJH ORDER

14

The court has reviewed Taco Bell’s submission, filed November 9, 2009, purporting

15 to clarify the exhibits submitted in support of its motion for partial summary judgment.

16

Counsel for Taco Bell shall be prepared to explain, at the December 16, 2009,

17 hearing on its motion for summary judgment, the discrepancy between

18

(a) the statement in the November 9 submission that “[c]ontrary to the Court’s

19 assumption stated in the Court’s Notice of November 2, 2009 [docket # 476], Taco Bell’s

20 counsel did not submit Exhibit 18 to the Steve Elmer declaration divided into five parts for

21 either Taco Bell’s manual filing or the chambers copy[;]”1 and the statement that “Taco

22 Bell’s counsel submitted Exhibit 18 as one undivided exhibit,” and

23

(b) the fact that the chambers copy of the Declaration of Steve Elmer

24 received by the court was divided into five parts, which were clearly marked on the caption

25 page(s), e.g., “Declaration of Steve Elmer . . . Exhibit Part of 18, 2 of 5[;]” “Declaration of

26 Steve Elmer . . . Exhibit Part of 18, 3 of 5[;]” Declaration of Steve Elmer . . . Exhibit Part of

27

28

1 It is the court’s assumption that Taco Bell intended to reference the Order filed on November 5, 2009 (docket No. 477), not the order filed on November 2, 2009 (docket No.

476).

Case4:02-cv-05849-PJH Document487 Filed11/10/09 Page2 of 3

United States District Court For the Northern District of California

1 18, 4 of 5[;]” and Declaration of Steve Elmer . . . Exhibit Part of 18, 5 of 5.”

2

Counsel for Taco Bell shall further be prepared to explain to the court whether, in

3 asserting that “the Clerk of the Court apparently divided [the chambers copy of?] Exhibit 18

4 into five parts . . . and scanned the latter four parts into the Court’s internal computer

5 network in a font size that is smaller than what was submitted manually by Taco Bell’s

6 counsel,” Taco Bell intended to represent to the court that it was the Clerk’s Office, not

7 Taco Bell’s counsel, which was responsible for the preparation of the chambers copies,

8 including the chambers copy of the Elmer Declaration.

9

Finally, counsel for Taco Bell shall be prepared to explain to the court the

10 discrepancy between

11

(a) its assertion that in the November 9, 2009 submission that “the recent

12 chambers copy” of Exhibit 2 to the Hikida Declaration “is identical to the original chambers

13 copy except that the recent chambers copy expanded the font size of the printed contents

14 of the exhibit[;]” and

15

(b) the fact that the chambers copy of Exhibit 2 to the Hikida Declaration as

16 originally submitted includes entries for Store No. 18 through Store No. 2914 (only), while

17 Exhibit 2 to the Hikida Declaration in the recent chambers copy, includes (in a larger font,

18 and in five “volumes”) entries for Store No 18 through Store No. 21295.

19

The court is completely flummoxed by Taco Bell’s counsel’s attempt to evade the

20 simple requirement that counsel provide a chambers copy of every filed document no later

21 than noon the day following the date of filing; and even more flummoxed by the

22 argumentative tone of Taco Bell’s latest submission, which suggests either that the court

23 has manufactured the numerous defects in the chambers copies that have been noted in

24 the various orders, or that the court is somehow responsible for those defects.

25

The attempts to obtain an accurate and legible copy of Taco Bell’s exhibits have

26 been time consuming, frustrating, and distracting, and the court has no more time to devote

27 to this process. Accordingly, the court will attempt to find the exhibits referenced in Taco

28 Bell’s pending motion, but if unable to, will not contact Taco Bell’s counsel, and the

2

Case4:02-cv-05849-PJH Document487 Filed11/10/09 Page3 of 3

United States District Court For the Northern District of California

1 documents will go unreviewed.

2

All of Taco Bell’s submissions will, however, be displayed at the hearing on

3 December 16, 2009, so that Taco Bell’s counsel can see, perhaps for the first time, what

4 exactly has been presented to the court.

5

6 IT IS SO ORDERED.

7 Dated: November 10, 2009 8 9

______________________________ PHYLLIS J. HAMILTON United States District Judge

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 Case4:02-cv-05849-PJH Document495 Filed11/25/09 Page1 of 5

1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

7

8
UNITED STATES DISTRICT COURT 9

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12

13 FRANCIE MOELLER, et al.,

14

Plaintiffs,

15 vs.

16 TACO BELL CORP.,

17

Defendant.

18

CASE NO. C 02-5849 PJH JL

DEFENDANT TACO BELL CORP.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE

DATE: TIME: CTRM: JUDGE:

December 16, 2009 9:00 a.m. 3 Hon. Phyllis J. Hamilton

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Case No. C 02-5849 PJH JL
OC 286,498,506v3

TBC’S Opp’n to Mot. Strike

Case4:02-cv-05849-PJH Document495 Filed11/25/09 Page2 of 5

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I.

3

ARGUMENT

4 A. Expert Testimony Is Not Required to Take Measurements of Accessible Elements.

5

Plaintiffs contend that the declarations of Steve Elmer, Taco Bell Corp.’s Director of ADA

6 Compliance, and Robert G. Reeves, the General Manager of Taco Bell’s general contractor, Maintco

7 Corp. (“Maintco”), which has handled the vast majority of ADA modifications performed during the

8 summer and fall of 2009, should be stricken because they were not disclosed as retained experts by the

9 expert disclosure deadline in this case. Plaintiffs’ assumption that both need to have been formally

10 retained and disclosed as experts is wrong.

11

Plaintiffs’ position conflicts with published case authority that is directly on point. Wilson v.

12 Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1074 (E.D. Cal. 2006) (Karlton, J.). In Pier 1 Imports,

13 the defendants sued in a Title III ADA action moved to strike Joe Card as an expert because they

14 claimed he was not qualified. The district court rejected the defendants’ position upon noting,

15 “Essentially, to report on the matters addressed in the report all that appears to be required is the ability

16 to read a tape measure and use a level.” Id. at 1074. Based upon Card’s background as a licensed

17 contractor and training, including a “brief” discussion of the ADA in one class, the district court held,

18 “This appears to be sufficient for the task of determining whether physical measurements match those in

19 the ADAAG.” Id.

20

In Panzica v. Mas-Maz, Inc., No. CV 05-2595 (ARL), 2007 WL 1732123 (E.D.N.Y. June 11,

21 2007) (Lindsay, Mag. J.), the ADA defendants, owners or operators of a restaurant, sought to preclude

22 as part of cross-motions for summary judgment a report submitted, on behalf of the ADA plaintiff, by an

23 individual who had performed an accessibility review of the restaurant at issue. Id. at *5. The

24 defendants argued, inter alia, that the report was improper because it was not prepared by a qualified

25 expert and did not provide any expert information or analysis. Id. at *6. For purposes of the motion for

26 summary judgment, the district court declined to preclude the report. Significantly, the district court

27 noted, “While the report does largely include measurements of locations within the [restaurant] that

28 could have be[en] taken by a layperson, such fact does not warrant an order of preclusion.” Id. at *6

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1 TBC’s Opp’n to Mot. Strike

Case4:02-cv-05849-PJH Document495 Filed11/25/09 Page3 of 5

1 (emphasis added). The district court also noted that “given that the defendants deposed [the author of

2 the report at issue], there can be no genuine dispute that they had the opportunity to discover the scope

3 of the plaintiff’s claims.” Id. at *6.

4

In Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660 J (WMc), slip op. (S.D. Cal. June

5 14, 2007) (Jones, J.), (See Collins Decl. ¶ 2 Ex. 1), the district court made a finding on summary

6 judgment that “the Court finds that a layperson could determine from visual observation whether the

7 ramp extended into the parking space and access aisle.” Id. at 2 n.1.

8

Similarly, Steve Elmer’s background and experience as Director of ADA Compliance for Taco

9 Bell have provided him with the personal knowledge to either take measurements using an ordinary tape

10 measure or a digital level or rely upon photographs depicting such measurements taken by others.

11

Robert Reeves is the General Manager of a licensed general contractor. (Reeves decl. of

12 10/20/09 ¶ 1; docket #458-2.)

13

Separate and apart from their personal knowledge, Elmer and Reeves can both provide opinion

14 testimony as lay witnesses under Fed. R. Evid. 701 based upon their opinion and inferences that are

15 “rationally based on the perception of the witness”. Specialized knowledge is not required to read a tape

16 measure or use a level. As noted by Judge Karlton, “all that appears to be required is the ability to read

17 a tape measure and use a level.” Pier 1 Imports (US), Inc., 439 F. Supp. 2d at 1074. Both witnesses

18 have already had their depositions taken by plaintiffs and are available for future depositions as well.

19 Indeed, Elmer has had his deposition taken on multiple occasions throughout this action.

20

Finally, contrary to plaintiffs’ position, Taco Bell did not argue in its portion of the Joint

21 Statement submitted to the Magistrate Judge on September 15, 2009 that any measurements must be

22 taken by a retained expert, but rather that plaintiffs had consistently taken the position throughout the

23 course of this case that they intended to rely upon measurements taken by a formally retained expert,

24 which is why the Court, in turn, relying upon plaintiffs’ position, ordered plaintiffs to conduct their site

25 inspections of Taco Bell’s stores, assuming that they would do so via an expert. (Order of 6/27/08 at

26 2:13; docket #386) (referring to inspections by plaintiffs’ expert). During the Court’s telephonic Case

27 Management Conference conducted on October 22, 2009, which resulted in the Court’s refusal to allow

28 plaintiffs to conduct secret site inspections at Taco Bell’s stores, the Court allowed plaintiffs to conduct

Case No. C 02-5849 PJH JL
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2 TBC’s Opp’n to Mot. Strike

Case4:02-cv-05849-PJH Document495 Filed11/25/09 Page4 of 5

1 supervised and announced site inspections on 48 hours notice. (Order of 10/22/09 at 2:2-4; docket

2 #461.) In so doing, the Court clearly informed the parties’ respective counsel during the conference call

3 that the Court intended to make no ruling as to whether a formally retained expert would be the only

4 individual who could conduct a site inspection of a Taco Bell store, notwithstanding plaintiffs’ counsel

5 Amy Robertson’s express oral request for such ruling. Thus, plaintiffs’ characterization of the Court’s

6 October 22, 2009 Order should be rejected.

7 B. Steve Elmer Has Laid the Foundational Facts Via His Concurrently-Filed Supplemental

8

Declaration.

9

Although plaintiffs challenge the foundation for Steve Elmer’s declaration filed on October 20,

10 2009, Elmer has concurrently filed a supplemental declaration, which lays the foundation for both his

11 original declaration and his supplemental declaration. (Elmer Supp. Decl. of 11/25/09 ¶¶ 4-12.) Taco

12 Bell has also attached to Elmer’s supplemental declaration photographs taken by himself or Maintco

13 technicians or ADA project managers at Newport CM, which documents the ADA modifications

14 referenced in Taco Bell’s moving papers.

15 C. Plaintiffs Waived Their Reliance Upon Fed. R. Evid. 408 By Relying Upon Their Meet and

16

Confer Charts in Formal Discovery Requests Propounded Against Taco Bell.

17

Although plaintiffs contend that their Meet and Confer charts are subject to Federal Rule of

18 Evidence 408,1 (Opp’n at 28:15-16), plaintiffs conveniently ignore that they have affirmatively relied

19 upon their Meet and Confer Charts in formal discovery requests propounded against Taco Bell in the

20 instant action. In particular, on July 7, 2008, plaintiffs propounded numerous Interrogatories against

21 Taco Bell that expressly relied upon and incorporate by reference “Meet and Confer Charts” “provided

22 in electronic form by Plaintiffs to Defendant in or about April through June, 2006”. (Hikida Supp. Decl.

23 of 11/25/09 ¶ 2 Ex. 1.) Such Interrogatories are Interrogatories Nos. 11, 12, 13, 14, 15, and 16 to

24

25

1

Plaintiffs’ reliance upon former defense counsel’s letter dated July 19, 2005, (A. Robertson decl.

26 Ex. 8), is misplaced. That letter expressly contemplated adding four columns to the Special Master

27

Interim Survey Reports to create a “Final Special Master Form” including two columns that would be labeled as “SASMF Comments” and “F&R Comments”. That proposed Form was never used by the

28 parties. (Hikida Supp. Decl. ¶ 2.) As one can see from plaintiffs’ M&C charts, no such columns exist. (Hikida decl. of 10/20/09 ¶ 3 Ex. 2.)

3

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TBC’s Opp’n to Mot. Strike

OC 286,498,506v3

Case4:02-cv-05849-PJH Document495 Filed11/25/09 Page5 of 5

1 Plaintiffs’ July 7, 2008 Interrogatories. Id. at 6:7-7:10. Plaintiffs selectively rely upon their “Meet and

2 Confer Charts”.

3

Indeed, if a discovery dispute erupts in the future as to plaintiffs’ Interrogatories Nos. 11, 12, 13,

4 14, 15, and 16, the Court will necessarily have to consider plaintiffs Meet and Confer Charts given that

5 plaintiffs’ Interrogatories are expressly premised upon such Charts. Indeed, such discovery requests

6 become meaningless if the Meet and Confer Charts upon which they are premised are ignored.

7

8 DATED: November 25, 2009

GREENBERG TRAURIG, LLP

9

10

By /s/

Gregory F. Hurley

11

Attorneys for Defendant TACO BELL CORP.

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Case No. C 02-5849 PJH JL
OC 286,498,506v3

4 TBC’s Opp’n to Mot. Strike

 
 Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page1 of 31

1 GREENBERG TRAURIG, LLP
GREGORY F. HURLEY (SBN 126791) 2 RICHARD H. HIKIDA (SBN 196149)
3161 Michelson Drive, Suite 1000 3 Irvine, California 92612
Telephone: (949) 732-6500 4 Facsimile: (949) 732-6501
Email: hurleyg@gtlaw.com, hikidar@gtlaw.com 5
Attorneys for Defendant 6 TACO BELL CORP.

7

8
UNITED STATES DISTRICT COURT 9

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12

13 FRANCIE MOELLER, et al.,

14

Plaintiffs,

15 vs.

16 TACO BELL CORP.,

17

Defendant.

18

19

20

CASE NO. C 02-5849 PJH JL

DEFENDANT TACO BELL CORP.’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT

[Declaration of Steve Elmer, Sabrina Wright, Dawn L. Bennyhoff, Richard H. Hikida filed concurrently herewith]

DATE: TIME: CTRM: JUDGE:

December 16, 2009 9:00 a.m. 3 Hon. Phyllis J. Hamilton

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28 Case No. C 02-5849 PJH JL

TBC’S Reply Mem. Supp. of Mot. Part. Summ. J.

OC 286,498,505v6 11-25-09

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page2 of 31

1

TABLE OF CONTENTS

2

3

Page I. INTRODUCTION .................................................................................................................................. 1

4

5 II. ARGUMENT ........................................................................................................................................ 2

6 A. The Vast Majority of Fixes Have Been Completed.................................................................. 2
7

8

1. Taco Bell Has Submitted Photographs Verifying the Work Performed........................ 3

9

10

2. Taco Bell Has Made Improvements Beyond Those Proposed by the Special Master... 4

11

(a) Plaintiffs Are Raising Numerous New Alleged Barriers Not Disclosed in

12

Their 2006 Meet and Confer Charts ................................................................ 4

13

14

3. Plaintiffs’ Waited 10 Months After This Court Ordered Plaintiffs to Conduct

Inspections to Provide Taco Bell With The May 1, 2009 List of Alleged Barriers As

15

to 80 Stores ................................................................................................................... 5

16 4. The Predecessor Judge’s Prior Ruling Is Not Subject to Law of the Case .................... 5
17

18

B. The “Mop Up” Remaining Work that Taco Bell Intends to Perform Shall Be Completed in

19

the Near Future ......................................................................................................................... 6

20
1. A Comprehensive Plan to Bring a Facility Into Compliance Suffices for Mootness .... 6 21

22

C. McSwain’s Expert Report Is Grossly Overinclusive Because It Addresses Alleged

23

Non-ADA Standards and Liability ........................................................................................... 7

24 D. The Ninth Circuit’s Martinez v. Longs Drug Stores Corp. Decision Is On Point .................... 8
25

26

E. Plaintiffs Have Failed to Meet Their Burden of Demonstrating That New Stores Are

Not in Compliance with the ADA ............................................................................................ 9 27

28 Case No. C 02-5849 PJH JL

TBC’S Reply Mem. Supp. of Mot. Part. Summ. J.

OC 286,498,505v6 11-25-09

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page3 of 31

1

F. The Omission of the Challenged Elements Referenced in Plaintiffs’ 2006 Meet and Confer Charts From Plaintiffs’ 2009 Expert Reports Indicates That Such Elements Are No

2

Longer at Issue In This Action ............................................................................................... 10

3 G. Plaintiffs’ Shifting Injunctive Relief Demands....................................................................... 10
4

5

1. Plaintiffs Waived Their Reliance Upon Fed. R. Evid. 408 By Relying Upon Their

6

Meet and Confer Charts in Formal Discovery Requests ............................................ 10

7 H. Plaintiffs Should Inform Taco Bell Which Modifications Completed by Taco Bell Over the

8

Past Year Are Adequate and Which Are Not ......................................................................... 11

9

1. Plaintiffs Have Apparently Not Inspected a Single Modification Made By Taco Bell

10

in Response to Plaintiffs’ Experts’ Reports ................................................................ 11

11

12

I. Plaintiffs Cannot Prevail Based Upon a Reasonable Modification of Policy or Practice

Theory..................................................................................................................................... 11

13

14

1. Taco Bell Has an Appropriate Maintenance Policy..................................................... 12

15

16

2. Plaintiffs Failed to Request a Reasonable Modification of Taco Bell’s Maintenance Policy .......................................................................................................................... 13

17

18

3. Plaintiffs’ Apparent Position that Taco Bell’s Accessibility Policies Should Remain

Static and Unchanged Is Wrong ................................................................................. 13

19

20

4. The Four Depositions of Restaurant General Managers Took Place Before Taco Bell’s

21

ADA Director Issued a Memorandum Reminding RGMs To Focus on Certain

Accessibility-Related Items on a Daily Basis ............................................................. 14

22

23

J. Plaintiffs Ignore the Vast Case Authority Recognizing Equivalent Facilitation Via Customer

Service .................................................................................................................................... 15 24

25

K. The ADAAG Does Not Require a Separate Route Other Than the Parking Lot.................... 20

26

27

L. There Is No ADA Violation Premised Upon the California Retail Food Code ...................... 21

28

3

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page4 of 31

1

M. Plaintiffs Ignore the Documentary Evidence Produced to Plaintiffs Confirming the City of La Mirada’s Refusal to Allow an Accessible Route from the Public Sidewalk to Be

2

Constructed at Store #5636..................................................................................................... 22

3

N. The Special Master Expressly Stated That He Does Not Measure Lateral Reach to the Back

4

End of Condiment Bins .......................................................................................................... 22

5

6

7

8

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1

TABLE OF CONTENTS

2 Federal Cases
3

Page

4

White v. Divine Invs., Inc., No. 05-17077, slop op., 286 Fed. Appx. 344, 2008 U.S. App. LEXIS 12221 (9th Cir. June 5, 2008) . 22

5 Access 4 All, Inc. v. Atlantic Hotel Condominium Ass'n,
6 No. 04-61740-CIV, 2005 WL 5643878 (S.D. Fla. Nov. 23, 2005) ...................................................... 18

7 Access 4 All, Inc. v. Casa Marina Owner, LLC, 8 458 F. Supp. 2d 1359 (S.D. Fla. 2006) ............................................................................................... 6, 7

9 Adelman v. Acme Markets Corp., No. 95-4037, 1996 WL 156412 (E.D. Pa. Apr. 3, 1996)...................................................................... 17
10
Alford v. City of Cannon Beach, 11 No. CV-00-303-HU, 2000 WL 33200554 (D. Or. Jan. 17, 2000) ........................................................ 19
12 Antoninetti v. Chipotle Mexican Grill, Inc.,
13 No. 05CV1660 J (WMc), 2008 WL 1805828 (S.D. Cal. Apr. 21, 2008) ............................................. 17

14 Antoninetti v. Chipotle Mexican Grill, Inc., 15 No. 05CV1660-J (WMc), 2008 WL 111052 (S.D. Cal. Jan. 10, 2008) ........................................... 3, 16
16 Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla. 2001) ................................................................................................. 18
17 Association of Disabled Americans, Inc., v. Key Largo Bay Beach, LLC,
18 407 F. Supp. 2d 1321 (S.D. Fla. 2005) ............................................................................................. 7, 19
19 Bodley v. Macayo Rest., LLC, 20 546 F. Supp. 2d 696 (D. Ariz. Mar. 2008)............................................................................................ 13

21 Brother v. CPL Investments, Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004) ................................................................................................. 18
22
23 Chapman v. Pier 1 Imports, 571 F.3d 853 (9th Cir. 2009) .................................................................................................................. 9
24 Cherry, et al. v. The City College of San Francisco, et al.,
25 No. C04-04981 WHA, slip op (N.D. Cal. Jan 12, 2006) ...................................................................... 12
26 Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 27 344 F. Supp. 2d 707 .............................................................................................................................. 18

28

5

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1

Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) ................................................................................................................ 17

2 Doran v. 7-Eleven, Inc.,
3 524 F.3d 1034 (9th Cir. 2008) ................................................................................................................ 9

4 Eiden v. Home Depot USA, Inc., 5 No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418 (E.D. Cal. May 26, 2006) ............................ 12, 21
6 Foley v. City of Lafayette, Ind., 359 F.3d 925 (7th Cir. 2004) ................................................................................................................ 13
7 Fortyune v. American Multi-Cinema, Inc.,
8 364 F.3d 1075 (9th Cir. 2004) .............................................................................................................. 12
9 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
10 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)........................................................................ 9

11 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134 (S.D. Cal. 2006)................................................................................................. 17
12
13 Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698 (D. Or. 1997) ........................................................................................... 19, 21, 22
14 Jeffries v. Wood,
15 114 F.3d 1484 (9th Cir. 1997) ................................................................................................................ 6
16 Jones v. Dollar Tree Stores, Inc., 17 No. 204CV2002MCEKJM, 2006 WL 1408667 (E.D. Cal. May 19, 2006) ......................................... 19

18 Jones v. Wild Oats Markets, Inc., No. 04-1018-WQH (WMc), slip op (S.D. Cal. Nov. 29, 2005)............................................................ 17
19

20

Lieber v. Macy's West, Inc., 80 F. Supp. 2d 1065 (N.D. Cal. 1999) ...................................................................................... 15, 16, 19

21 Martinez v. Longs Drug Stores Corp.,
22 No. 05-17142, 281 Fed. Appx. 712, 2008 WL 2329712 (9th Cir. Mar. 5, 2008)............................... 8, 9

23 Massachusetts v. E*Trade Access, Inc., 24 464 F. Supp. 2d 52 (D. Mass. 2006) ..................................................................................................... 13

25 National Fed. of the Blind v. Target Corp., 582 F. Supp. 2d 1185 (N.D. Cal. 2007) ................................................................................................ 19
26
Peters v. Winco Foods, Inc., 27 No. S02-2010 (E.D. Cal. Dec. 18, 2003) .............................................................................................. 17
28

6

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1 Sanford v. Del Taco, Inc., 2 No. 04-cv-2154-GEB-EFB, 2006 WL 2669351 (E.D. Cal. Sept. 18, 2006) ........................................ 21

3 Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL 512426 (E.D. Cal. Feb. 12, 2007) ........................................ 22
4

5

Schonfeld v. City of Carlsbad, 978 F. Supp. 2d 1329 .............................................................................................................................. 7

6 White v. Divine Invs., Inc.,
7 No. 05-17077, slop op., 286 Fed. Appx. 344, 2008 U.S. App. LEXIS 12221 (9th Cir. June 5, 2008) . 22

8 Wilson v. PFS, LLC, 9 493 F. Supp. 2d 1122 (S.D. Cal. 2007)................................................................................................... 6
10 Wilson v. Pier 1 Imports (US), Inc., No. S-04-633-LKK/CMK, 439 F. Supp. 2d 1054 (E.D. Cal. July 14, 2006) ................................. 20, 21
11

12 State Cases
13 Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, 14 Nos. Civ.A. 96-WY-2490, 1997 WL 1523960 (D. Colo. Aug. 12, 1997).............................................. 7

15 Donald v. Café Royale, Inc., 218 Cal. App. 3d 168 (Cal. Ct. App. 1990) ............................................................................................ 3
16

17 Federal Statutes
18 42 U.S.C. 12182(b)(2)(A)(iv) ................................................................................................................... 18
19 42 U.S.C. 12182(b)(2)(v).......................................................................................................................... 15
20
21 Title III of the Americans with Disabilities Act ..................................................................... 11, 17, 21, 22

22 Federal Rules 23 Federal Rules of Evidence 408 ................................................................................................................. 10 24

25 Federal Regulations

26 28 C.F.R. § 36.305(b)(2)............................................................................................................... 16, 17, 18 27 ADAAG .................................................................................................................................. 19, 20, 21, 22 28

7

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page8 of 31
1 ADAAG 7.2(2)(iii) ................................................................................................................................... 17 2 State Regulations 3 Title 24 of the California Code of Regulations........................................................................................... 8 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
8

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Taco Bell Corp. (“Taco Bell”) has undertaken an unprecedented ADA remediation program to

4 comprehensively modify numerous features at approximately 200 California company-owned stores at a

5 cost in excess of $8 million. Taco Bell suspects that no company has ever undertaken as comprehensive

6 a program. Every Taco Bell store was surveyed, and thousands of imperceptible hyper technical

7 variations were addressed.

8

Plaintiffs contend that this lawsuit is about fixing stores. Taco Bell has asked for, but has not

9 received cooperation from plaintiffs as to what stores/features have been resolved and what, if anything,

10 is remaining to be performed. Most of the alleged “violations” plaintiffs raise are minuscule variations

11 from the ADAAG standards (such as service counters that are ¼ to ½ too high). Nevertheless, Taco

12 Bell has committed to bring all of its California company-owned stores into strict compliance with the

13 ADAAG. Until recently, all the guidance Taco Bell had on the injunctive relief plaintiffs sought was

14 the Special Master’s Interim Survey Reports and plaintiffs’ Meet and Confer Charts. Taco Bell has

15 spent over $8 million fixing virtually all the features identified in these Reports that were within Taco

16 Bell’s ownership or control. Plaintiffs’ have been unwilling to meet and confer on what has been fixed

17 and remove features or stores from their demand for injunctive relief. Without plaintiffs’ cooperation,

18 Taco Bell had to document all of its thousands of fixes for the Court, this resulted in the massive

19 number of exhibits in support of Taco Bell’s motion. Taco Bell believes that only a handful of features

20 are properly at issue for determining injunctive relief under the ADA. Taco Bell continues to seek

21 plaintiffs’ cooperation in attempting to narrow the scope of fixes so that this Court does not have to hold

22 a trial on the compliance of more than 100,000 features at issue (the survey form used by the Special

23 Master included 638 elements per store).

24

Rather than narrowing the scope of this litigation, the work that Taco Bell has done has resulted

25 in plaintiffs’ expanding this litigation. As recently as May 1, 2009, plaintiffs were expanding and

26 changing their claims for injunctive relief via their expert reports. Taco Bell now must go back to

27 stores and document compliance for the new allegations by plaintiffs. Taco Bell has committed to

28 making all feasible corrections regardless of how minor they may be in order to provide effective

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1 access. Taco Bell’s fixes based on plaintiffs’ most recent allegations will be completed and documented

2 before January 29th, 2010.

3

Plaintiffs asked this Court to overrule the Magistrate Judge and allow plaintiffs to conduct

4 additional secret site inspections of Taco Bell’s stores. Taco Bell opposed the secret inspections by

5 plaintiffs, in part, because Taco Bell would be kept in the dark as to what, if any, fixes remained to be

6 made. Plaintiffs were allowed additional inspections to determine compliance, however, Plaintiffs have

7 not conducted or asked for a single inspection allowed by the Court. The purpose of plaintiffs’

8 surprise inspections was to try to “catch” some feature that had fallen out of compliance and ask the

9 Court to rule on that feature without any effort to resolve it with Taco Bell first.

10

Plaintiffs sought certification of their class based on common injunctive relief for ADA

11 violations. Plaintiffs told this Court that the primary relief sought in this action was to fix the stores.

12 However, plaintiffs’ changing demands, and their refusal to work with Taco Bell to reduce the stores

13 and features in dispute, are tactics designed to delay and impair the resolution of ADA injunctive relief

14 claims.

15

II. ARGUMENT

16 A. The Vast Majority of Fixes Have Been Completed.

17

Plaintiffs claim that Taco Bell’s motion reflects a “fundamental misunderstanding of this case”

18 because plaintiffs intend at trial not to seek an injunction addressing--item by item--the elements that

19 remain out of compliance or that--at that moment--have fallen out of compliance.” (Opp’n at 14:12;

20 14:16-20.) This is news to Taco Bell given plaintiffs’ prior item-by-item allegations set forth in

21 plaintiffs’ expert Eric McSwain’s May 1, 2009 420-page expert report as well as plaintiffs’ thousands of

22 pages of Meet and Confer charts provided to Taco Bell in April-June 2006. (Hikida decl. ¶ 3 Ex. 2.)

23

Taco Bell has completed the vast majority of modifications requested by plaintiffs’ retained

24 experts via their May 1, 2009 expert reports.1 (See Supplemental Declaration of Steve Elmer of

25

26 1

Plaintiffs complain that over 280 items in Exhibit 18 to Elmer’s declaration are blank. (Opp’n at

27 18:6-7.) Taco Bell has concurrently-filed an updated version of Exhibit 18 (renumbered as Exhibit 1 to Elmer’s Supplemental Declaration), which fills in the previously omitted items. Given that Taco Bell’s

28 remediation work via Maintco and other contractors was still ongoing at the time of the filing of the

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1 11/25/09 (“Elmer Supp. Decl.”) ¶¶ 2-389 Exs. 1, 2, 5, 14; Declaration of Sabrina Wright ¶ 2 Ex. 1;

2 Declaration of Dawn Bennyhoff ¶ 2 Ex. 1.) Indeed, Taco Bell has addressed each of the items that are 3 highlighted in plaintiffs’ opposition as to store #3498. (Opp’n at 19:4-16; Wright decl. ¶ 2 Ex. 1.)

4

Under these circumstances, injunctive relief should be denied because it is clearly not the “only”

5 means of ensuring compliance. Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc),

6 2008 WL 111052, at *24 (S.D. Cal. Jan. 10, 2008) (Jones, J.).

7

The likelihood of recurrence is nil as to structural modifications. Plaintiffs have provided no

8 evidence that Taco Bell would attempt to undo its costly remediation of alleged architectural barriers if

9 the Court refrained from granting injunctive relief. For example, plaintiffs have provided no evidence

10 that Taco Bell has or will undo brand new curb ramps, ramps, concrete parking areas, drink tables,

11 modified condiment modules reduced in height, lowered service counters, or countless other features. It

12 is well established that an injunction should not be granted as punishment for past acts where it is

13 unlikely that they will recur. Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 184 (Cal. Ct. App.

14 1990). The good faith of Taco Bell’s expressed intent to comply similarly weighs against issuance of an

15 injunction.

16

1. Taco Bell Has Submitted Photographs Verifying the Work Performed.

17

Plaintiffs argue in their opposition that Taco Bell’s assertions as to modifications are

18 unsupported by “evidence” and not in compliance with Rule 56. (Opp’n at 13:3; 14:7.)

19

Apart from the declarations of Steve Elmer and Robert Reeves previously submitted by Taco

20 Bell, (Elmer decl. ¶¶ 18-58; docket #458-1; Reeves decl. ¶¶ 3-165; docket #458-2), Taco Bell has

21 concurrently-submitted literally thousands of photographs taken by a combination of either its own Taco

22 Bell personnel, its project manager, Newport CM, or Maintco Corp., a general contractor with whom

23 Taco Bell has contracted for the bulk of the ADA-related modifications performed over the summer and

24 fall of 2009. (Elmer Supp. Decl. ¶¶ 2-389 Exs. 1, 2, 5, 14.) Taco Bell had previously submitted the vast

25 majority of such photographs to plaintiffs as part of Taco Bell’s continuing discovery obligations and

26 supplementation of its Rule 26(a)(1) initial disclosures before plaintiffs filed their response in opposition

27 instant motion, Taco Bell felt it was appropriate to omit addressing such items until it could verify with
28 photographic documentation that the modification work was, in fact, complete. (Elmer Supp. Decl. ¶ 2.)

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1 to Taco Bell’s instant motion. (Supplemental Declaration of Richard H. Hikida of 11/25/09 (“Hikida

2 Supp. Decl.”) ¶ 11.)

3

2. Taco Bell Has Made Improvements Beyond Those Proposed by the Special Master.

4

Taco Bell’s commitment to accessibility is evidenced by its willingness to improve stores

5 beyond what was required by the reports of the Special Master. Taco Bell has made numerous

6 modifications that went far beyond the Special Master’s proposed solutions. For example, at store

7 #2918 and #5513 and other stores, the Special Master proposed that Taco Bell install directional signage

8 from the inaccessible entrance to the accessible entrance. (Hikida Supp. Decl. ¶ 12 Ex. 6.) Although

9 Taco Bell performed the Special Master’s proposed solution, Taco Bell recently also modified the path

10 of travels to the other entrances (not required by the Special Master to be accessible) at significant

11 expense, thereby rendering every entrance fully accessible. (Elmer Supp. Decl. ¶ 104.)

12

(a) Plaintiffs Are Raising Numerous New Alleged Barriers Not Disclosed in

13

Their 2006 Meet and Confer Charts.

14

Plaintiffs argue that a “large number of violations” were found by McSwain “six years into this

15 litigation”, (Opp’n at 8:1-3; id. at 14:14), which implies that plaintiffs had previously requested the

16 removal of these alleged architectural barriers and Taco Bell did not do the work identified.

17

Plaintiffs’ argument ignores that plaintiffs’ Meet and Confer charts omitted these McSwain

18 barriers that were raised for the first time by plaintiffs either in December 2008 or throughout the spring

19 of 2009. In fact, the Special Master did not note certain alleged barriers during his 2004-2005 surveys,

20 which implies that he did not find such barriers to exist. Plaintiffs knew that Taco Bell was trying to

21 resolve all the injunctive issues in this case, and in an attempt to defeat the narrowing of injunctive relief

22 claims, plaintiffs used McSwain’s expert report to assert brand new issues after Taco Bell’s surveys

23 and fixes.

24

By way of example only, plaintiffs’ expert, Eric McSwain, challenges for the first time the

25 following alleged barriers, each of which could have been raised by plaintiffs via their 2006 Meet and

26 Confer Charts, but was omitted:

27

 emergency exit door maneuvering clearances at store numbers 2961 and 2968;

28

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1

 the distance from the edge of the lavatory to the side wall at the water closet as less than

2 36 inches minimum at store #526;

3

 the lack of a warning sign inside a store if an entrance door is permitted to be

4 inaccessible at stores #2778;

5

 the side wall grab bar not extending 54 inches from the rear wall at stores #2930, #15379;

6

 a ½ inch change in level at the bottom of a curb ramp at store #20646;

7

 the distance of toilet paper dispensers from the rear wall at all stores.

8 (Hikida decl. ¶ 3 Ex. 2.) In addition, plaintiffs failed to meet and confer with Taco Bell for features in

9 dispute in their 2006 M&C chart. (Hikida decl. ¶ 3 Ex. 2) (“Plaintiffs would like to meet and confer

10 with Taco Bell concerning the restroom in this restaurant.”).

11

Thus, it is extremely misleading to suggest that purported barriers were communicated by either

12 the Special Master or plaintiffs to Taco Bell years ago and that Taco Bell has refused to correct them.

13

3. Plaintiffs’ Waited 10 Months After This Court Ordered Plaintiffs to Conduct

14

Inspections to Provide Taco Bell With The May 1, 2009 List of Alleged Barriers As

15

to 80 Stores.

16

Plaintiffs’ have offered no explanation as to why they waited until May 1, 2009 to supplement

17 their list of alleged architectural barriers for 80 stores. On June 27th, 2008 this Court ordered plaintiffs

18 to commence their site inspections “immediately” in order to provide the parties with “plenty of time” to

19 “meet and confer” and allow Taco Bell an opportunity to “take further corrective action,” (Order of

20 6/27/08 at 2:12-16; docket #386). Taco Bell did not get this list of plaintiffs’ expert’s delay in disclosing

21 new barriers as to 80 stores until 10 months later. This delay thwarted the intent of the Court’s

22 Scheduling Order and substantially delayed Taco Bell’s remediation efforts.

23

4. The Predecessor Judge’s Prior Ruling Is Not Subject to Law of the Case.

24

Plaintiffs’ implicit reliance upon the law of the case doctrine to attack Taco Bell’s mootness

25 defense is misplaced. (Opp’n at 17:4-13; 18:15-17; 18:21; 23:22-24:6; 25:26-28.) As an initial matter,

26 Judge Jenkins did not award any injunctive relief against Taco Bell in ruling upon plaintiffs’ motion for

27 partial summary judgment filed on February 23, 2007. (See Order of 8/8/07.)

28

Moreover, the law of the case doctrine is an appellate doctrine. Jeffries v. Wood, 114 F.3d 1484,

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1 1488-89 (9th Cir. 1997) (en banc) (“Law of the case is a jurisprudential doctrine under which an

2 appellate court does not reconsider matters resolved on a prior appeal.”).

3

In Wilson v. PFS, LLC, 493 F. Supp. 2d 1122 (S.D. Cal. 2007) (Hayes, J.), the court rejected

4 application of the law of the case doctrine. Id. at 1125 n.1. The district court stated, “[A] court may

5 review its past decisions notwithstanding the law of the case doctrine where the law and or relevant

6 circumstances have changed.” Id. at 1125 n.1. Taco Bell’s remediation efforts have changed the

7 relevant circumstances. (Elmer Supp. Decl. ¶¶ 2-389 Exs. 1, 2, 5, 14.)

8 B. The “Mop Up” Remaining Work that Taco Bell Intends to Perform Shall Be Completed in

9

the Near Future.

10

The remaining modification work that Taco Bell still intends to perform shall be completed in

11 the near future. In particular, Taco Bell has already retained its project manager, Newport CM, to

12 oversee the contractors who shall perform the remaining “mop up” ADA modification work on or

13 before January 29, 2010. (Elmer Supp. Decl. ¶ 18.)

14

1. A Comprehensive Plan to Bring a Facility Into Compliance Suffices for Mootness.

15

Plaintiffs argue that “TBC does not claim to have remedied all ADA violations in its California

16 stores.” (Opp’n at 17:13-14; 17:22-23.) Taco Bell submits that plaintiffs are applying the wrong legal

17 standard.

18

This action is analogous to Access 4 All, Inc. v. Casa Marina Owner, LLC, 458 F. Supp. 2d 1359

19 (S.D. Fla. 2006) (King, J.). In that case, the district court held that there was a comprehensive plan put

20 into place to remodel the entire facility at issue, a hotel, and bring it up to compliance with the ADA.

21 Id. at 1363. An architectural firm was retained regarding renovations. The firm had the duty to prepare

22 drawings and submit them to the proper authorities to help obtain building permits and to certify such

23 plans are in compliance with accessibility statutes and regulations. Id. at 1363-64. The court held,

24 “Defendant’s remedial plan . . . renders Plaintiffs’ claims moot, as a matter of law, and subjects

25 Plaintiffs’ Complaint to dismissal.” Id. at 1364-65. The district court criticized the plaintiff for

26 continuing the litigation after learning of the renovation plans including an investment of approximately

27 $38 million. Id. at 1365. “If an ADA ‘plaintiff [has] already . . . received everything to which [he]

28 would be entitled’, i.e., the challenged conditions have been remedied, then these particular claims are

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1 moot absent any basis for concluding that plaintiff will again be subjected to the same wrongful conduct

2 by this defendant.” Id. at 1365 (quoting Parr v. L & L Drive-Inn Rest., supra). “Plaintiffs have not, nor

3 can they present any competent or reasonable evidence whatsoever to suggest that they will again be

4 subjected to the same ADA violations by this Defendant.” Id. at 1366. The court also found the lawsuit

5 was frivolous, unreasonable, and groundless because the defendant notified the plaintiff of its plan to

6 renovate the hotel, but the plaintiff insisted upon pursuing its claims. Id. at 1367-68. The court noted

7 the defendant’s voluntary decision to remedy any alleged barriers. Id. at 1368.

8

In Association of Disabled Americans, Inc., v. Key Largo Bay Beach, LLC, 407 F. Supp. 2d 1321

9 (S.D. Fla. 2005) (King, J.), the district court relied upon the defense testimony that a handheld shower

10 head in a particular guest room was in the process of being fixed. Id. at 1347.

11

In Schonfeld v. City of Carlsbad, 978 F. Supp. 2d 1329 (S.D. Cal. 1997) (Gonzalez, J.), the

12 district court held that the City’s schedule for future curb ramp construction is non-discriminatory. Id. at

13 1341.

14

In Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, Nos. Civ.A.

15 96-WY-2490-A, Civ.A. 96-WY-2491-A, Civ.A. 96-WY-2492-A, Civ.A. 96-WY-2493-A, 1997 WL

16 1523960 (D. Colo. Aug. 12, 1997) (Johnson, J.), the plaintiff sought the installment of a portable ramp

17 proposed by plaintiffs for a front entrance to an office building with a single 7.5 inch step at the front

18 entrance. The court denied the plaintiff’s motion for summary judgment. In support, the court cited

19 defendant’s intention to build a new permanent entrance elsewhere in the next year. “While

20 undoubtedly a portable ramp could provide access to the building, it is also equally clear that

21 defendant’s longer-term plans will also provide effective and safe access to the building for those

22 required to use wheelchairs for mobility.” Id. at *1.

23 C. McSwain’s Expert Report Is Grossly Overinclusive Because It Addresses Alleged Non-

24

ADA Standards and Liability.

25

Plaintiffs argue that Taco Bell has not claimed to have remediated “all of the violations

26 identified by Mr. McSwain.” (Opp’n at 17:21-25; 18:4-5.) McSwain’s list of purported architectural

27 barriers is grossly overinclusive and does not comport with the Court’s directive to exchange expert

28 reports “on ADA liability.”

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1

On June 27, 2008, the Court issued its Rule 16 Scheduling Order, which set May 1, 2009 as the

2 deadline for the parties to exchange “expert reports on ADA liability.” (Order of 6/27/08 at 2:23; docket 3 #386) (emphasis added). In other words, the Court did not authorize the submission of expert reports on

4 non-ADA liability including any liability under state law claims.

5

Nevertheless, McSwain’s expert report exchanged on May 1, 2009, which plaintiffs have filed in

6 support of their opposition, is riddled with literally hundreds of non-ADA standards addressed at length

7 in Taco Bell’s initial moving papers and Exhibit 18 to Elmer’s declaration. Indeed, plaintiffs allege that

8 McSwain found over 2,400 ADA violations and state law violations, but the number drops to “over

9 1,900” if only alleged ADA violations are counted. (Opp’n at 19 n.12.) Thus, plaintiffs admit that

10 between 400 and 600 alleged architectural barriers set forth in McSwain’s expert report are not alleged

11 ADA violations. (Opp’n at 19:1; 19 n.12.) Plaintiffs’ counsel conceded under oath that plaintiffs’

12 expert reports included items that were “premature at this stage” insofar as they referenced Title 24 of

13 the California Code of Regulations. (A. Robertson decl. ¶ 12.) Indeed, to date, neither plaintiffs nor

14 their retained expert, McSwain, has made any attempt to specifically identify which alleged barriers

15 were ADA issues versus state law issues within plaintiffs’ expert reports. (Hikida Supp. Decl. ¶ 13.)

16 Rather, plaintiffs apparently expect this Court to review their 1325 page chart attached as Exhibit 1 to

17 Amy Robertson’s declaration, compare it against McSwain’s 420 page report, and try to discern which 18 elements were omitted from the 1325 page chart.2 Taco Bell was forced to undertake an extremely

19 time-consuming analysis through McSwain’s 420 page report, which could have been avoided had

20 plaintiffs complied with the Court’s Scheduling Order by providing an expert report that was limited to

21 ADA liability only.

22 D. The Ninth Circuit’s Martinez v. Longs Drug Stores Corp. Decision Is On Point.

23

Plaintiffs’ attempt to distinguish Martinez v. Longs Drug Stores Corp., No. 05-17142, 281 Fed.

24 Appx. 712, 2008 WL 2329712 (9th Cir. Mar. 5, 2008), is misplaced. The Ninth Circuit noted that some

25

26

2

Plaintiffs’ counsel have prepared and submitted numerous charts that they created in support of

their Opposition, (A. Robertson decl. Exs. 21-37), so the Court can and should assume that plaintiffs’

27 omission in submitting a chart identifying the precise nature and scope of the hundreds of non-ADA issues set forth in McSwain’s 420 page expert report on ADA liability was intended to obfuscate the
28 extent of their action.

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1 of the ADA violations at the store at issue “were capable of complete and irrevocable remediation.” Id.

2 at *1. Although the Ninth Circuit noted that other items such as the placement of the garbage can and 3 aisle displays could recur and although the plaintiff argued that the defendant store operator lacked a

4 policy to maintain accessible features, the Ninth Circuit affirmed the district court’s refusal to impose

5 injunctive relief because the “district court clearly understood the problem with regard to the possibility

6 of recurrence, was satisfied that injunctive relief was not an appropriate means to ensure ADA

7 compliance, and accordingly exercised its discretion not to impose such relief.” Id. at *1. In so doing,

8 the Ninth Circuit rejected the plaintiff’s invocation of the “voluntary cessation” exception to the

9 mootness doctrine by clarifying that that exception merely “allows a court to determine the legality of a

10 challenged practice where the defendant has voluntarily ended that practice”, but that the issue at hand

11 before the district court was “the proper remedy.” Id. at *1 n.1.

12

Like the plaintiff in Martinez, plaintiffs’ reliance upon the voluntary cessation exception to the

13 mootness doctrine, (Opp’n at 23:12-13), ignores the crucial question as to “the proper remedy” for the

14 alleged ADA claim for relief. Given the lack of evidence that Taco Bell would undo over $8 million

15 worth of ADA enhancements and Taco Bell’s current accessibility-related policies, the Court should

16 exercise its discretion to not impose injunctive relief. Martinez, supra, at *1 (citing Friends of the

17 Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 193, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)

18 (holding that the district court may “conclude that an injunction would be an excessively intrusive 19 remedy”)).3

20 E. Plaintiffs Have Failed to Meet Their Burden of Demonstrating That New Stores Are Not in

21

Compliance with the ADA.

22

Although plaintiffs question whether certain recently constructed stores are in compliance with

23 the ADA, (Opp’n at 21:22-25), plaintiffs ignore that it is their burden to demonstrate that Taco Bell’s

24 stores are currently not in compliance with applicable accessibility standards. Doran v. 7-Eleven, Inc.,

25 524 F.3d 1034, 1048 (9th Cir. 2008); Chapman v. Pier 1 Imports, 571 F.3d 853, 859 (9th Cir. 2009)

26 (holding that an ADA plaintiff lacks standing to pursue “unencountered alleged barriers”).

27
3

Plaintiffs’ contention that Taco Bell did not discuss or distinguish Friends of the Earth, (Opp’n

28 at 23:15-16), is wrong. (See TBC’s Mot. at 6:8-10.)

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1

Plaintiffs refused to survey any newly constructed stores. (Hikida Supp. Decl. ¶ 6.) Plaintiffs

2 also conveniently ignore that Taco Bell has retained an outside accessibility consulting firms, since 3 2006, to survey and inspect all newly constructed stores for ADA compliance. (Elmer Supp. Decl. ¶¶

4 15, 16.)

5 F. The Omission of the Challenged Elements Referenced in Plaintiffs’ 2006 Meet and Confer

6

Charts From Plaintiffs’ 2009 Expert Reports Indicates That Such Elements Are No Longer

7

at Issue In This Action.

8

The omission of the previously challenged elements that were referenced in plaintiffs’ 2006

9 Meet and Confer charts from plaintiffs’ experts May 1, 2009 reports is telling. The Court can and

10 should draw the inference that such elements are no longer at issue in this action with respect to

11 plaintiffs’ ADA claim for injunctive relief.

12 G. Plaintiffs’ Shifting Injunctive Relief Demands.

13

Plaintiffs’ refusal to identify precisely which features are at issue over the course of the instant

14 action is demonstrated by plaintiffs’ current position that the Court should not consider their Meet and

15 Confer Charts as evidence of their former positions, which have continuously shifted over time.

16

1. Plaintiffs Waived Their Reliance Upon Fed. R. Evid. 408 By Relying Upon Their

17

Meet and Confer Charts in Formal Discovery Requests.

18

Although plaintiffs contend that their Meet and Confer charts are subject to Federal Rule of

19 Evidence 408,4 (Opp’n at 28:15-16), plaintiffs conveniently ignore that they have affirmatively relied

20 upon their Meet and Confer Charts in formal discovery requests propounded against Taco Bell in the

21 instant action. In particular, on July 7, 2008, plaintiffs propounded numerous Interrogatories against

22 Taco Bell that expressly relied upon and incorporate by reference “Meet and Confer Charts” “provided

23 in electronic form by Plaintiffs to Defendant in or about April through June, 2006”. (Hikida Supp. Decl.

24

25 4

Plaintiffs’ reliance upon former defense counsel’s letter dated July 19, 2005, (A. Robertson decl.

26

Ex. 8), is misplaced. That letter expressly contemplated adding four columns to the Special Master Interim Survey Reports to create a “Final Special Master Form” including two columns that would be

27 labeled as “SASMF Comments” and “F&R Comments”. That proposed Form was never used by the parties. (Hikida Supp. Decl. ¶ 2.) No such columns exist in plaintiffs’ M&C charts. (Hikida decl. of

28 10/20/09 ¶ 3 Ex. 2.)

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1 ¶ 2 Ex. 1.) Such Interrogatories are Interrogatories Nos. 11, 12, 13, 14, 15, and 16 to Plaintiffs’ July 7,

2 2008 Interrogatories. Id. at 6:7-7:10. Plaintiffs selectively rely upon their “Meet and Confer Charts”.

3

Indeed, if a discovery dispute erupts in the future as to plaintiffs’ Interrogatories Nos. 11, 12, 13,

4 14, 15, and 16, the Court will necessarily have to consider plaintiffs Meet and Confer Charts given that

5 plaintiffs’ Interrogatories are expressly premised upon such Charts. Indeed, such discovery requests

6 become meaningless if the Meet and Confer Charts upon which they are premised are ignored.

7 H. Plaintiffs Should Inform Taco Bell Which Modifications Completed by Taco Bell Over the

8

Past Year Are Adequate and Which Are Not.

9

If plaintiffs’ real concern is full and equal access, then plaintiffs should inform Taco Bell

10 precisely which modifications completed by Taco Bell over the past six months following the apparent

11 completion of plaintiffs’ expert site inspections as of April 7, 2009 are adequate and which are not.

12 Plaintiffs have chosen not to do so. Instead, plaintiffs focus upon past alleged barriers.

13

1. Plaintiffs Have Apparently Not Inspected a Single Modification Made By Taco Bell

14

in Response to Plaintiffs’ Experts’ Reports.

15

The plaintiffs raised a discovery dispute with the magistrate judge and this Court regarding their

16 demand to conduct unsupervised and unannounced site inspections at Taco Bell’s stores. (Joint

17 Statement of 9/15/09; docket #452; Order Re Docket #452; docket #453; Pls.’ Objection of 9/25/09;

18 docket #454.) This Court granted plaintiffs the opportunity to conduct an unlimited number of site

19 inspections on a mere 48 hours notice before the filing of plaintiffs’ response in opposition filed on

20 November 10, 2009. (Order of 10/22/09 at 1:26-2:4; docket #461.) However, plaintiffs failed to request

21 or conduct a single site inspection to verify any of the modifications or advise Taco Bell of any fixes

22 that they did not agree with. (Hikida Supp. Decl. ¶ 5.)

23 I. Plaintiffs Cannot Prevail Based Upon a Reasonable Modification of Policy or Practice

24

Theory.

25

Plaintiffs fail to address the legal standard as to an alleged discriminatory policy or practice.

26

“An individual alleging discrimination under Title III must show that: (1) he is disabled as that

27 term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of

28 public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the

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1 defendant discriminated against the plaintiff based upon the plaintiff’s disability by (a) failing to make a

2 requested reasonable modification that was (b) necessary to accommodate the plaintiff’s disability.”

3 Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004) (Wardlaw, J.) (emphasis

4 added).

5

“’Although neither the ADA nor the courts have defined the precise contours of the test for

6 reasonableness, it is clear that the determination of whether a particular modification is ‘reasonable’

7 involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of

8 the modification in light of the nature of the disability in question and the cost to the organization that

9 would implement it.’” Id. at 1083 (citation omitted).

10

1. Taco Bell Has an Appropriate Maintenance Policy.

11

It is undisputed that items in Taco Bell’s stores including restroom fixtures may need to be

12 replaced at some point in the future due to breakage from customer use, vandalism, or theft. The fact

13 that such items may need to be replaced and repaired at some point in the future does not, however,

14 render the necessary modifications as ADA violations.

15

In Eiden v. Home Depot USA, Inc., No. CIV. S-04-977 LKK/CMK, 2006 WL 1490418 (E.D.

16 Cal. May 26, 2006) (Karlton, J.), the district court held that ADA defendants are not liable for “isolated”

17 or “temporary” movable objects that temporarily restrict access where the barrier is caused by

18 maintenance or repair. Id. at *12. The court held that the DOJ has determined that an isolated instance

19 of placement of an object in an accessible route is not a violation if the object is promptly removed. Id.

20 at *12.

21

In Cherry, et al. v. The City College of San Francisco, et al., No. C 04-04981 WHA, slip op.

22 (N.D. Cal. Jan. 12, 2006) (Alsup, J.), the district court held that temporary or isolated interruptions are

23 not violations, and that the burden is on plaintiffs to show that the blockage is persistent. Id. at 13:1-5.

24

Pursuant to Cherry, plaintiffs have failed to meet their burden of demonstrating that specific

25 interruptions in accessibility at specific stores are persistent. What plaintiffs’ opposition ignores are the

26 current policies and practices implemented by Taco Bell to ensure that controls or dispensers or fixtures

27 used by disabled customers, that wind up breaking or needing repair, are handled in a compliant manner

28 consistent with the ADA. (Elmer decl. ¶¶ 5-12 Exs. 1-7.)

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1

In Foley v. City of Lafayette, Ind., 359 F.3d 925 (7th Cir. 2004) (Kanne, J.), the Seventh Circuit

2 cited the defendant’s long-term service contract with an elevator repair company as evidence of a proper

3 maintenance policy. Id. at 929. The Seventh Circuit held that “occasional elevator malfunctions,

4 unaccompanied by systemic problems of poor maintenance policy or frequent denials of access, do not

5 constitute violations”. Id. at 930. “[Plaintiff] alleges, at worst, individual, isolated instances of

6 employee negligence and not a systemic problem with the policies of the City of Lafayette regarding the

7 structure and operation of the train station.” Id. at 930.

8

Similarly, Taco Bell’s service contract with Maintco is evidence of a proper maintenance policy.

9 (A. Robertson decl. of 11/10/09 Ex. 15) (TBGT217654-TBGT217656); (Elmer decl. ¶ 5; Reeves decl. ¶

10 2).

11

2. Plaintiffs Failed to Request a Reasonable Modification of Taco Bell’s Maintenance

12

Policy.

13

A plaintiff must demonstrate that he or she affirmatively requested an accommodation that was

14 tied to his disability. Bodley v. Macayo Rest., LLC, 546 F. Supp. 2d 696, 699-700 (D. Ariz. Mar. 2008)

15 (Campbell, J.) (citing Fortyune, 364 F.3d at 1082).

16

In Massachusetts v. E*Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006) (Lasker, J.), a

17 case in which Tim Fox and Amy Robertson served as plaintiffs’ counsel, the district court held, “[A]

18 plaintiff bears the burden of establishing that he requested a specific reasonable accommodation to a

19 policy which, if granted, would afford him access to the desired goods or services. Once the plaintiff

20 meets that burden of showing that a modification is reasonable in a general sense, the defendant must

21 make the modification unless he can show that such a change would work a fundamental alteration.” Id.

22 at 58 (emphasis added).

23

Plaintiffs have failed to meet their burden of establishing that they requested a specific

24 reasonable accommodation to Taco Bell’s maintenance policy which, if granted, would afford them

25 access to the desired goods or services. E*Trade, 464 F.2d at 58.

26

3. Plaintiffs’ Apparent Position that Taco Bell’s Accessibility Policies Should Remain

27

Static and Unchanged Is Wrong.

28

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1

Plaintiffs criticize Taco Bell’s accessibility-related policies because Taco Bell has modified its

2 policies over time. (Pls.’ Opp’n at 5:14-6:6; 20:15-16.) This criticism is bizarre and demonstrates that

3 Taco Bell can’t win either way. If Taco Bell had not modified its policies over time, plaintiffs surely

4 would have argued that Taco Bell was oblivious to the issues that they sought to challenge and that its

5 policies should not remain static and unchanged. On the other hand, plaintiffs challenge Taco Bell’s

6 modifications to its policies over time regardless of whether such modifications are intended to enhance

7 the accessibility of its stores. By highlighting the policy changes that Taco Bell has made over time,

8 plaintiffs are making precisely Taco Bell’s point.

9

Moreover, plaintiffs’ comparison between the informal list of duties assigned to facilities leaders

10 in 2005 with the subsequent checklists provided to store-level employees is akin to comparing apples

11 and oranges. (Pls.’ Opp’n at 5:14-6:6.) Facilities leaders have oversight over a number of stores and are

12 not store-level employees. In other words, the duties of a facilities leader are different from duties of a

13 store-level employee. (Elmer Supp. Decl. ¶ 17.)

14

4. The Four Depositions of Restaurant General Managers Took Place Before Taco

15

Bell’s ADA Director Issued a Memorandum Reminding RGMs To Focus on Certain

16

Accessibility-Related Items on a Daily Basis.

17

Although plaintiffs make reference to the deposition testimony of four depositions of Restaurant

18 General Managers, such depositions occurred on September 3, 2009, (A. Robertson decl. Exs. 16, 17,

19 18, 19), which was before Taco Bell’s ADA Director recently circulated a memorandum to all

20 California company-owned store restaurant general managers reminding them to focus on certain

21 accessibility-related items to ensure compliance with the ADA on a daily basis. (S. Elmer decl. ¶ Ex. 1.)

22 Thus, such RGMs did not have the benefit of the guidance of the policy memorandum issued on October

23 14, 2009, which stated in relevant part:

“Generally speaking, you should not replace any restroom signs, dispensers

24

(paper towel, soap, toilet paper, seat covers), mirrors, sinks, toilets, urinals, faucets,

hand dryers, coat hooks or door handles/latches/locks without consulting with your

25

Area Coach or Facility Leader to ensure that an ADA compliant replacement item is

used and installed in a compliant manner. You may also contact me directly with any

26

questions in this regard.”

27 (Elmer decl. Ex. 1) (first emphasis added) (italics only). Moreover, the policy memorandum recognizes

28 that there may be extenuating circumstances in which the RGM may need to make emergency repairs to

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1 a restroom in order to comply with local Health and Safety Code requirements. For example, if a

2 broken water closet is left untouched for an extended period of time, the store might be shut down by the

3 local Health Department. Plaintiffs’ characterization of Taco Bell’s policy memorandum ignores the

4 existence of such exception.

5

Moreover, the specific question posed to deponent Fike was whether he had received

6 accessibility-related documents over the “last year”. (A. Robertson decl. Ex. 17; depo. tr. at 19:13-14.)

7 Thus, the specific question was much narrower than implied by plaintiffs.

8

Further, plaintiffs mischaracterize Taco Bell’s manager-in-charge card as somehow mutually

9 exclusive of Taco Bell’s store-level training and guidance of store general managers as to accessibility

10 issues.

11

Finally, even assuming that plaintiffs elicited favorable testimony from the four RGMs that they

12 deposed, plaintiffs’ reliance upon the testimony of four RGMs out of approximately 200 California

13 company-owned stores that currently exist is not in any way representative of the personal knowledge of

14 the other RGMs. Plaintiffs make no evidentiary proffer that the testimony of four RGMs is statistically

15 significant or representative of the approximately 200 other California stores at issue.

16 J. Plaintiffs Ignore the Vast Case Authority Recognizing Equivalent Facilitation Via

17

Customer Service.

18

Plaintiffs ignore the vast case authority recognizing equivalent facilitation via customer service.

19 In Lieber v. Macy’s West, Inc., 80 F. Supp. 2d 1065 (N.D. Cal. 1999) (Patel, J.), the district court held

20 that the defendant operator of a department store had violated the ADA’s readily achievable barrier

21 removal standard by failing to make any effort to improve access within its merchandise pads via

22 customer service as an alternative accommodation. Id. at 1080 (“the court concludes that, at the time of

23 trial, Macy’s had not adequately provided access to merchandise pads through readily achievable

24 ‘alternative methods’ such as customer service. 42 U.S.C. 12182(b)(2)(v).”). The district court held,

25 “The explicit language of the ADA, Department of Justice (“DOJ”) ADA regulations, and the legislative

26 history of the ADA uniformly indicate that the statute does not contemplate that customers in

27 wheelchairs will have 100% physical access to merchandise at Macy’s or at any other retail store.” Id.

28 at 1077. The court further explained, “The ADA requires the merchant to provide sales assistance to

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1 retrieve merchandise that is physically inaccessible.” Id. at 1080. “Also, DOJ regulations state that

2 ‘[e]xamples of alternatives to barrier removal include . . . [r]etrieving merchandise from inaccessible

3 shelves or racks.’” Id. at 1080 (quoting 28 C.F.R. § 36.305(b)(2)). The court added, “Under the readily

4 achievable standard, Macy’s is specifically obligated to provide service to people with disabilities as an

5 alternative to access in any areas where it does not provide actual physical access to the merchandise

6 offered for sale to the public.” Id. at 1080 (citing 28 C.F.R. § 36.305(b)(2)). The district court noted

7 that Macy’s had taken insufficient steps at the time of trial to ensure that shoppers with disabilities

8 actually receive adequate assistance from sales clerks. Id. at 1081. No special training had been

9 provided for sales clerks to assist disabled customers. Id. at 1081. Thus, the court rejected the customer

10 service defense and ordered a plan for effective customer service for customers with mobility

11 disabilities, including signage informing such patrons of the availability of such service. Id. at 1082.

12

In Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV1660-J (WMc), 2008 WL 111052 (S.D.

13 Cal. Jan. 10, 2008) (Jones, J.), the district court held, following a bench trial, that even policies and

14 practices can constitute a form of equivalent facilitation. “Policies and practices that provide

15 substantially equivalent or greater access to and usability of a facility constitute a form of equivalent

16 facilitation.” Id. at *21. In that case, the alleged barrier was a 44 inch high wall in front of two

17 restaurants’ food preparation counters, which obstructed the wheelchair-bound plaintiff’s view of the

18 counters and the ability to see the food ingredients for purposes of customizing his food order. After the

19 lawsuit was filed, the defendant implemented a nationwide written policy setting forth methods to

20 continue to provide excellent customer service to all its customers including the disabled. Id. at *13.

21 Since implementing the new written policy, the defendant did not receive any complaints from any

22 customer in a wheelchair regarding the accessibility of the 2 restaurants. Id. at *17. The district court

23 held that the written policy constituted a form of equivalent facilitation because it allowed disabled

24 customers to see the food ingredients by other means even if the food preparation wall continued to

25 obstruct their view of the ingredients. The district court held, “[T]he ADA does not require that

26 establishments provide exactly the same experience for disabled customers as they do for non-disabled

27 customers.” Id. at *27 (emphasis added). The defendant’s written policy was a form of

28 “accommodation” or equivalent facilitation that provided disabled and non-disabled customers who

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1 can’t see over a wall behind which food items were being prepared with a substantially similar

2 opportunity to enjoy the “Chipotle experience.” Antoninetti v. Chipotle Mexican Grill, Inc., No. 3 05CV1660 J (WMc), 2008 WL 1805828, at *3 (S.D. Cal. Apr. 21, 2008) (Jones, J.).

4

In Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134 (S.D. Cal. 2006) (Lorenz, J.), the district

5 court rejected the assertion that coffee pots at the coffee counter and other merchandise in a convenience

6 store were too high for disabled customers to reach. Id. at 1148. In support, the court noted, “Finally,

7 Defendant has a policy of assisting disabled customers, and has installed ADA-compliant signage

8 stating, ‘If you require any assistance, please notify one of your friendly team members.’” Id. The court

9 held, “Signs such as the one posted by Defendant constitute a reasonable modification under the ADA.”

10 Id. In support, the court cited the following federal ADA regulation, which provides that “[e]xamples of

11 alternatives to barrier removal include, but are not limited to, . . . [r]etrieving merchandise from

12 inaccessible shelves or racks.” 28 C.F.R. § 36.305(b)(2). The court also cited Adelman v. Acme

13 Markets Corp., No. 95-4037, 1996 WL 156412 (E.D. Pa. Apr. 3, 1996) (Waldman, J.), which held that

14 “retrieving an item from a shelf may be a ‘reasonable modification’ to a store’s self-service policy.” Id.

15 at *1. The court also held that “[p]roviding a clerk to retrieve inaccessible merchandise would also be a

16 readily achievable alternative to removal of architectural barriers.” Id. at *1 n.2.

17

In Jones v. Wild Oats Markets, Inc., No. 04-1018-WQH (WMc), slip op. (S.D. Cal. Nov. 29,

18 2005) (Hayes, J.); (Collins decl. Ex. 7), the district court held that self-service shelves and displays need 19 not be lowered within the reach ranges of individuals based upon TAM III-7.5150.5 Id. at 9:5-8. Even

20 assuming that such elements were, in fact, within the scope of the ADA, the district court noted that the

21 plaintiff failed to meet her burden as to reach ranges given that she could have requested and received

22 assistance in reaching the produce scales and bags. Id. at 9:17-20.

23

In Peters v. Winco Foods, Inc., No. S02-2010 (E.D. Cal. Dec. 18, 2003) (Damrell, J.), the district

24 court implicitly found that equivalent facilitation was provided under ADAAG 7.2(2)(iii) insofar as

25

26 5

In Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004)

27 (Berzon, J.), the Ninth Circuit held that the Title III Technical Assistance Manual’s guidance is an interpretation of the DOJ’s regulation and is entitled to “significant weight” as to the meaning of the

28 regulation. Id. at 875-76.

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1 employees could use pass-through space along counters to bring food items from high meat or deli

2 counters to disabled customers. Id. at 7:18-22; RJN Ex. 1.

3

In Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707 (D. Colo.

4 2004) (Babcock, J.), the district court held, “The purpose of [section 12182(b)(2)(A)(iv)] is to provide

5 individuals with disabilities access to a representative selection of merchandise available in a

6 department. The Committee does not intend that a department store separate each and every display

7 fixture in order to provide wheelchair clearance maneuverability. It is sufficient if a customer who uses

8 a wheelchair is able to determine, once in a department, that the store offers, for example, black leather

9 jackets. Once that is determined, the customer can rely upon a salesperson to retrieve a black leather

10 jacket in the customer’s size.” Id. at 712 (quoting H.R. Rep. No. 485(II) at 110) (emphasis added).

11 Thus, the district court relied upon the customer service defense in refusing to find an ADA violation.

12 Id. at 715 (“If Plaintiffs encounter movable displays in their way, they may ask for help from

13 salespeople who, under [the store operator’s] own policies, will assist them by ‘graciously’ moving the

14 display.”).

15

In Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353

16 (S.D. Fla. 2001) (Highsmith, J.), the district court held that restaurant service on the first deck of a cruise

17 ship via wait staff was a reasonable alternative method of providing restaurant service to those on the

18 second and third decks. Id. at 1365. The court also held that bar service via the ship’s wait staff was a

19 reasonable alternative method to the bar counter being too high. Id. at 1365-66.

20

In Access 4 All, Inc. v. Atlantic Hotel Condominium Ass’n, No. 04-61740-CIV, 2005 WL

21 5643878 (S.D. Fla. Nov. 23, 2005) (Cohn, J.), the district court held that a staff person who personally

22 accommodates a disabled person either at the couch seating area near a high registration desk or at the

23 concierge desk inside a hotel constitutes equivalent facilitation and complies with the ADA. Id. at *6,

24 *14.

25

In Brother v. CPL Investments, Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004) (Martinez, J.), the

26 district court found that the claims were moot in part because of a record of accommodating the disabled

27 and policies to ensure ADA compliance. Id. at 1372-73.

28

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1

Numerous other courts have applied equivalent facilitation in other contexts. See, e.g., National

2 Fed. of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1195 (N.D. Cal. 2007) (Patel, J.) (holding that

3 in-store assistance or a 1-800 customer service number provided accommodations that constituted an

4 affirmative defense); Alford v. City of Cannon Beach, No. CV-00-303-HU, 2000 WL 33200554, at *10

5 (D. Or. Jan. 17, 2000) (holding that lifting the wheelchair itself, with the disabled patron seated in it, up

6 a flight of stairs is an adequate alternative measure, which is distinct from carrying the disabled patron

7 independent of the wheelchair itself); Association of Disabled Americans, Inc., v. Key Largo Bay Beach,

8 LLC, 407 F. Supp. 2d 1321, 1339 (S.D. Fla. 2005) (King, J.) (holding that a hotel did not discriminate,

9 in part, against its mobility-impaired patrons by not installing a canopy over outdoor paths of travel such

10 as a ramp because the hotel staff was willing to assist its patrons with umbrellas); Independent Living

11 Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698, 726-27 (D. Or. 1997) (holding that folding

12 chairs that were not “fixed” or new technology were still deemed to be equivalent facilitation); Jones v.

13 Dollar Tree Stores, Inc., No. 204CV2002MCEKJM, 2006 WL 1408667, at *7 (E.D. Cal. May 19, 2006)

14 (England, J.) (holding that a plaintiff, who uses a wheelchair for mobility, was not entitled to recover for

15 interior signage identifying a women’s restroom posted ¼ inch at variance with the strict terms of the

16 ADAAG based on the equivalent facilitation doctrine).

17

As suggested by Judge Patel in Lieber, Taco Bell has installed customer service signage at each

18 of its California corporate-owned stores. (Elmer decl. ¶ 13 Ex. 8); Lieber, 80 F. Supp. 2d at 1082

19 (ordering a plan for effective customer service for disabled patrons via signage); id. at 1080 (“[T]he

20 methods used by other stores are relevant as examples of alternative approaches.”). The Special Master

21 expressly proposed customer service as a solution in his Interim Survey Report for store #3078 by

22 proposing that “only Taco Bell staff can operate the exterior key lock for each restroom and staff must

23 assist all guests in opening the restroom doors.” (Hikida Supp. Decl. ¶ 14 Ex. 7.) Taco Bell has trained

24 its store-level employees to offer assistance to any customer, including the mobility-impaired. (Elmer

25 Decl. ¶ 14 Ex. 10.) Indeed, the four recently-deposed restaurant general managers testified as to their

26 customer assistance for the disabled.

27

Plaintiffs omit that deponent Aashish Malik testified that he received training to assist customers

28 with disabilities as follows:

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Q. Okay. Have you received any training concerning accessibility issues?

1

A. Well, we have ongoing training, so we keep in the store. We receive if we get

some sort of information in the store, we get a training paper in our restaurant.

2

Q. Okay. And I want to know have you received any training in that form or any

other form concerning accessibility issues?

3

A. We have a Taco Bell orientation. We always help the customers, so basically,

this is part of the training system we use in the store, so ongoing, and we teach everybody if the

4

customer needed help and the dining room area or offside area, we are go and help them. If they

don’t need help, we still ask for help, mostly somebody’s in wheelchair.

5

Q. Okay. So one subject of training that you have received concerns assisting

customers including customers with disabilities? Is that right?

6

A. Yes, sir.

7 (A. Robertson decl. Ex. 18; depo. tr. at 15:19-16:13.)

8

In addition, plaintiffs omit the fact that deponent Greg Carlos recalled receiving accessibility-

9 related documents concerning the use of the Taco Bell restaurant by people who use wheelchairs or

10 scooters. (A. Robertson decl. Ex. 16; depo. tr. at 10:13-25.) Carlos testified that he was trained not to

11 discriminate against customers with a “handicap”. (A. Robertson decl. Ex. 16; depo. tr. at 11:19.)

12 Carlos noted his duties as a RGM was to be a “customer maniac” so that if customers in wheelchairs

13 need help, “we help them.” (A. Robertson decl. Ex. 16; depo. tr. at 12:13-15.) Carlos noted that one of

14 his duties as a general manager was to provide customer service to people who use wheelchairs or

15 scooters. (A. Robertson decl. Ex. 16; depo. tr. at 12:16-19.)

16

Plaintiffs mischaracterize the foregoing “customer service” equivalent facilitation as providing

17 merely treating customers with “courtesy”. The deposition excerpt of Maria Solis cited by plaintiffs,

18 page 19 (no line numbers cited), says nothing about treating customers merely with “courtesy”. As for

19 Eric Fike’s deposition testimony, plaintiffs conveniently ignore the “customer maniac” reference in his

20 deposition testimony, (A. Robertson decl. Ex. 17; depo. tr. at 19:21-25), which is intended to convey the

21 “customer service” equivalent facilitation provided by Taco Bell’s employees. Thus, even assuming

22 that certain controls or dispensers are out of compliance with the ADAAG, Taco Bell has provided

23 equivalent facilitation in the form of customer service.

24 K. The ADAAG Does Not Require a Separate Route Other Than the Parking Lot.

25

McSwain challenges at several stores the fact that the intended exterior accessible route to an

26 accessible store entrance requires traveling in the parking lot, which he challenges as hazardous. In

27 Wilson v. Pier 1 Imports (US), Inc., No. S-04-633-LKK/CMK, 439 F. Supp. 2d 1054 (E.D. Cal. July 14,

28

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Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page29 of 31

1 2006) (Karlton, J.), the district court rejected precisely such argument and found that there is no separate

2 route required other than via the parking lot. Id. at 1071. 3 L. There Is No ADA Violation Premised Upon the California Retail Food Code.

4

Plaintiffs contend that Taco Bell is committing an ADA violation by removing door closers from

5 certain of its stores in order to provide door maneuvering clearances that meet current ADAAG

6 standards. In support, plaintiffs rely upon the California Retail Food Code. (Opp’n at 20:4-5; 41:19-

7 42:5.) Plaintiffs’ argument is simply wrong. Taco Bell believes that its solution of using gravity door

8 closers complies with both the ADA and California law.

9

Plaintiffs cannot use California state Health and Safety regulations to establish a violation of the

10 ADA. Compliance with the ADAAG is compliance with the ADA. In Chapman v. Pier 1 Imports, No.

11 CIV. S-04-1339 LKK CMK, 2006 WL 1686511 (E.D. Cal. June 19, 2006) (Karlton, J.), the district 12 court stated, “[T]he court adopts by reference the analysis articulated in Eiden6 with respect to the

13 ADAAG and the CBC. As in Eiden, I conclude that compliance with the ADAAG, and not another

14 standard, constitutes compliance with the ADA requirements for new construction.” Id. at *7. “[T]he

15 court notes that because Congress directed that the Department of Justice, in conjunction with the

16 Architectural and Transportation Barriers Compliance Board (“Access Board”), issue the ADAAG, and

17 that these standards constitute binding regulation, the court is not authorized to evaluate Title III

18 disability discrimination claims under any other standard, and to determine what engineering or

19 architectural modifications are necessary, or whether such modifications would be feasible and

20 desirable.” Chapman, id. at *7 n.11. “[T]he court concludes that the ADAAG constitutes the exclusive

21 standards under Title III of the ADA”. Id. at *7; Sanford v. Del Taco, Inc., No. 04-cv-2154-GEB-EFB,

22 2006 WL 2669351, at *2 (E.D. Cal. Sept. 18, 2006) (Burrell, J.) (“The ADA Accessibility Guidelines

23 (‘ADAAG’) provides the standard for determining a violation of the ADA.”); Independent Living

24 Resources v. Oregon Arena Corp., 982 F. Supp. 2d 698, 746 (D. Or. 1997) (“The implication is that the

25 [ADAAG] standards are the exclusive source for design requirements.”). Indeed, the ADAAG’s

26 architectural design standards are even exclusive to the “general non-discrimination provisions in Title

27
6

Eiden v. Home Depot USA, Inc., No. CIV S04-977 LKK/CMK, 2006 WL 1490418, at *8 (E.D.

28 Cal. May 26, 2006) (Karlton, J.).

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21 TBC’S Reply Mem. Supp. of Mot. Part. Summ. J.

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page30 of 31

1 III itself.” Id. at 746, 758.

2

More recently, in Sanford v. Roseville Cycle, Inc., No. Civ. 04-1114 DFL CMK, 2007 WL

3 512426 (E.D. Cal. Feb. 12, 2007), Judge Levi held that the California Building Code is “irrelevant for

4 ADA purposes.” Id. at *1. “The ADA Accessibility Guidelines for Buildings and Facilities (ADAAG)

5 are the exclusive standards for judging compliance with the ADA.” Id. at *1.

6

In White v. Divine Invs., Inc., No. 05-17077, slip op., 286 Fed. Appx. 344, 2008 U.S. App.

7 LEXIS 12221 (9th Cir. June 5, 2008), the plaintiff argued unsuccessfully that she could maintain an

8 ADA claim under Title III for a violation of her “full and equal enjoyment” irrespective of ADAAG

9 violations. The Ninth Circuit held that reliance upon violations of state building codes to prove

10 deprivation of “full and equal enjoyment” is wrong. Id. at *3. “No court has ever held that a Title III

11 discrimination action based on the design of a public accommodation may be maintained in the absence

12 of an ADAAG violation, nor does the text of the statute support such a reading.” Id. at *3. “In Title III

13 design cases, the ADAAG define discrimination, and absent an ADAAG violation, no discrimination

14 has occurred.” Id. at *3.

15 M. Plaintiffs Ignore the Documentary Evidence Produced to Plaintiffs Confirming the City of

16

La Mirada’s Refusal to Allow an Accessible Route from the Public Sidewalk to Be

17

Constructed at Store #5636.

18

Plaintiffs ignore Taco Bell’s previously produced evidence demonstrating that the City of La

19 Mirada has precluded Taco Bell from constructing an accessible route from the public sidewalk at store

20 #5636. (Elmer Supp. Decl. ¶ 14 Ex. 4; Hikida Supp. Decl. ¶ 10 Ex. 5.)

21 N. The Special Master Expressly Stated That He Does Not Measure Lateral Reach to the Back

22

End of Condiment Bins.

23

Plaintiffs contend in their Opposition that Taco Bell’s assertion that the Special Master used a

24 different method than Eric McSwain’s measurement methodology of lateral reach all the way to the

25 back of each condiment bin is “unsubstantiated”. (Opp’n at 39:19-20.) Plaintiffs ignore Taco Bell’s

26 express citation and quotation from the Special Master’s letter to both parties in response to the Court-

27 ordered questions allowed to be posed to the Special Master on September 24, 2007. (See Letter of

28 Special Master Bob Evans to Tim Fox et al. dated 12/19/07 at 4 (stating that the Special Master

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22 TBC’S Reply Mem. Supp. of Mot. Part. Summ. J.

Case4:02-cv-05849-PJH Document496 Filed11/25/09 Page31 of 31

1 measured condiment dispenser bins “laterally to the center of each bin”). (Hikida Supp. Decl. ¶ 9 Exs. 3

2 & 4.)

3

4 DATED: November 25, 2009

GREENBERG TRAURIG, LLP

5 By /s/

6

Gregory F. Hurley

Attorneys for Defendant TACO BELL CORP.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

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24

25

26

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23 TBC’S Reply Mem. Supp. of Mot. Part. Summ. J.

 
 Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page1 of 8

1 FOX & ROBERTSON, P.C.
Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice
104 Broadway, Suite 400
3 Denver, Colorado 80203
Tel: (303) 595-9700
4 Fax: (303) 595-9705
Email: tfox@foxrob.com
5
LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823
835 Mandana Blvd.
7 Oakland, CA 94610
Tel: (510) 419-0940
8 Fax: (501) 419-0948
Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

OAKLAND DIVISION

13 FRANCIE E. MOELLER et al,

14

Plaintiffs,

15 v.

16 TACO BELL CORP.,

17

Defendant.

18

Case No. 02-CV-05849 PJH JL
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO STRIKE
Hearing Date: December 16, 2009 Hearing Time: 9:00 a.m.
The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor

19

Plaintiffs hereby submit their Reply Brief in Support of their Motion to Strike. In their

20 Motion to Strike (“Pls.’ Mot.,” Docket No. 481), Plaintiffs set forth six arguments why various 21 assertions in Defendant’s summary judgment papers should be struck. In its Motion to Strike 22 Response,1 Defendant ignores several of these arguments and fails to adequately respond to the 23 remainder. Crucially, a large number of assertions are still not supported by personal 24 knowledge, as required by Rule 56 of the Federal Rules of Civil Procedure (“FRCP”) and Rule

25 602 of the Federal Rules of Evidence (“FRE”), and many others constitute expert testimony for 26 which there is neither foundation nor a timely expert report.

27

28

1

Def. Taco Bell Corp.’s Mem. of P. & A. in Supp. of its Resp. in Opp’n to Pls.’

Mot. to Strike (Docket no. 495, filed Nov. 25, 2009).

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page2 of 8

1 I. 2

The Elmer and Reeves Declarations Include Many Assertions for Which No Foundational Facts Are Provided Establishing Personal Knowledge in Violation of FRCP 56 and FRE 602.

3

In their declarations in support of Taco Bell Corp’s. Motion for Partial Summary

4 Judgment (“MPSJ”), both Mr. Reeves and Mr. Elmer asserted that Defendant or its contractor,

5 Maintco, had fixed various architectural elements, and in many cases purported to provide very

6 specific measurements of the fixed elements. With very few exceptions, however, they

7 provided no basis for having personal knowledge of the factual assertions they made, and thus

8 did not comply with FRCP 56 and FRE 602, requiring that there must be a showing that

9 declarants have personal knowledge of their factual assertions. See Pls.’ Mot. at 9-10.

10 Defendant attempts to remedy this shortcoming in two steps: first, they cut and paste Mr.

11 Reeves’s testimony into the Supplemental Declaration of Steve Elmer (Docket No. 496-6),

12 compare id. ¶¶ 214-375 with Reeves Decl. ¶¶ 3-164, and then they attempt to provide

13 foundational facts for Mr. Elmer. Elmer Supp. Decl. ¶¶ 5-13. This attempt fails utterly.

14

Despite the fact that he now makes (1) all of the assertions that he originally made,

15 (2) the assertions originally made by Mr. Reeves, and (3) a number of brand new assertions,

16 Mr. Elmer’s declaration makes clear that he never saw many of the architectural elements after

17 they were purportedly fixed. In fact, Mr. Elmer unambiguously states that he personally

18 visited the stores modified by Maintco “before such modifications were made,” and has never

19 even been to some restaurants in Northern California. Elmer Supp. Decl. at ¶ 8.

20

To the contrary, Mr. Elmer’s testimony makes clear that -- far from “personal

21 knowledge” -- his awareness of the alleged fixes was entirely second-hand. He claims to know

22 that the fixes were made for three reasons: he was told that elements were fixed by Maintco

23 and Newport personnel; he reviewed their invoices for doing this work (which Defendant has

24 not submitted to the Court); and he reviewed photographs purporting to depict the fixes. Elmer

25 Supp. Decl. at ¶¶ 9-12. To have the “personal knowledge” required by FRE 602, however, a

26 declarant must have “‘actually perceived or observed that which he testifies to.’” Latman v.

27 Burdette, 366 F.3d 774, 787 (9th Cir. 2004) (citation omitted). It is not sufficient that a

28

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 2

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page3 of 8

1 declarant was told that a condition exists, or obtains information from some other indirect

2 source. See id. (holding that FRE 602 was violated where the only basis for a declarant’s

3 assertion that accounting records were authentic was that he had been told so by another

4 employee). Because Mr. Elmer never personally observed many of the architectural elements

5 after they purportedly were fixed, but rather only learned of these fixes indirectly from others,

6 he does not have the personal knowledge required by FRE 602.

7

Nor can Mr. Elmer provide the authentication necessary for the photographs attached to

8 his declaration to be considered. In order for a declarant to authenticate a photograph, the

9 declarant must have “personal knowledge of the scene depicted [and] can testify that the photo

10 fairly and accurately depicts it.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 561

11 (D. Md. 2007); see also Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571

12 F.3d 206, 214 (2d Cir. 2009) (“The standard for admissibility of photographs requires the

13 witness to recognize and identify the object depicted and testify that the photograph is a fair

14 representation of what it purports to portray.”). Here, Mr. Elmer never personally saw the

15 architectural elements after they were allegedly fixed, and thus cannot state whether the

16 photographs accurately depict those elements.

17

Defendant also offers the declarations of Sabrina Wright2 and Dawn Bennyhoff3 in an

18 attempt to authenticate the hundreds of photographs attached to those declarations. As an

19 initial matter, very few of those photographs are cited in Defendant’s summary judgment

20 papers, so it is unclear what purpose they serve. In any event, because Defendant is submitting

21 this evidence for the first time with its Reply Brief, it should be ignored. See, e.g., Roe v. Doe,

22 2009 WL 1883752, at *5 (N.D. Cal. June 30, 2009) (citation omitted) (Holding that “‘[i]t is

23 well accepted that . . . submission of new facts in [a] reply brief is improper’” and declining to

24 consider new facts submitted with the defendants’ reply brief); Langston v. N. Am. Asset Dev.

25

26

27

2

Docket No. 496-5.

28

3

Docket No. 496-1.

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 3

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page4 of 8

1 Corp., 2009 WL 941763, at *5 n.7 (N.D. Cal. Apr. 6, 2009) (refusing to consider new evidence

2 submitted in a reply brief).

3 II. 4

Expert Testimony In The Elmer And Reeves Declarations And Elmer Exhibit 18 Should Be Struck Because It Was Not Disclosed By The Expert Designation Deadlines and Because The Declarations Lack Foundation.

5

As set forth in Plaintiffs’ Motion to Strike, certain assertions in the Elmer and Reeves

6 Declarations, and Elmer Exhibit 18, should be struck because they were not disclosed in

7 connection with the expert discovery in this case. As Plaintiffs pointed out, this result is

8 consistent with Defendant’s assertions in this case that access surveys require expertise, and

9 with the Court’s holding that the measurements and analysis that occur during these surveys

10 require expert testimony. Id. at 10-13. Plaintiffs also argued that Defendant had not

11 demonstrated that Mr. Elmer and Mr. Reeves had the qualifications necessary to make the

12 assertions in their declarations. Id. at 13.

13

As an initial matter, it is now clear that Mr. Elmer -- who, as set forth above, has not

14 even seen most or all of the architectural elements after they were fixed -- did not take the

15 measurements set forth in his declaration. Nor has Defendant submitted any evidence showing

16 that Mr. Reeves took any of the measurements set forth in his declaration. This raises several

17 crucial questions: Who took these measurements? And what qualifications, if any, did they

18 have? It was Defendant’s responsibility to provide this basic foundational evidence, and its

19 failure to do so means that the assertions in the Elmer and Reeves declarations as to the

20 measurements and compliance status of the allegedly fixed elements should be struck.

21

Defendant now argues that “[s]pecialized knowledge is not required to read a tape

22 measure or use a level,”4 and thus it was not necessary for Defendant to include the assertions

23 at issue in an expert report. This is a significant change of tune for Defendant, and also ignores

24 the complexity and nature of many of the assertions in the Elmer and Reeves Declarations, and

25 Elmer Exhibit 18.

26

27

28

4

Mot. to Strike Resp. at 2.

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 4

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page5 of 8

1

Defendant has long maintained that access measurements are complicated and must be

2 done in a specific and precise manner to be accurate. Indeed, Defendant challenged a large

3 number of measurements taken by the Special Master -- who both parties acknowledged was

4 an expert in access surveys, see October 5, 2004 Order Appointing Special Master (Docket No.

5 101) at 2 -- on the ground that he did not use the proper methodology in taking measurements.

6 See generally Ex. 1 to the Supp. Decl. of Timothy P. Fox (filed concurrently). For example,

7 although Defendant now claims that a lay person can take slope measurements, it has in the

8 past challenged the type of instrument the Special Master used to took slope measurements, the

9 number of slope measurements taken by the Special Master in a particular location, and

10 whether the Special Master properly calibrated his slope meter. Joint Status Conference

11 Statement at 18-19 (Docket no. 249, filed Jan. 19, 2007).

12

Defendant also objected to Plaintiffs’ access surveys of Defendant’s restaurants on the

13 ground that the surveys constituted expert work that had to be completed by the expert

14 discovery cutoff. See Pls.’ Mot. at 5, 12. Defendant now tries to reconcile its position by

15 arguing that Plaintiffs would have used an expert to take measurements while Defendant used

16 lay persons. Mot. to Strike Resp. at 2-3. This argument makes no sense. The measurements

17 sought to be taken by Plaintiffs during their surveys, and those actually taken by Defendant’s

18 representatives, are identical. Either these measurements constitute expert work, or they do

19 not. Indeed, Defendant’s position leads to the absurd result that the persons most qualified to

20 take measurements -- experts -- cannot, while those least qualified -- lay persons -- can.

21

Defendant also minimizes the nature of the assertions in Elmer and Reeves

22 Declarations, and Elmer Exhibit 18. These are not simply tape measure readings. They 23 include expert critiques of Plaintiffs’ expert’s methodology and conclusions5 as well as expert 24 interpretation of accessibility regulations.6

25

26

27

5

See, e.g., examples (2) and (6) on page 11 of Plaintiffs’ Motion.

28

6

See, e.g., examples (3), (5) and (6) on page 11 of Plaintiffs’ Motion.

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 5

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page6 of 8

1

The cases cited by Defendant are distinguishable on two grounds. First, in none of

2 these cases did a party that had consistently argued that access surveys required expertise then

3 switch its position and argue that such surveys could be conducted by lay persons. Second,

4 unlike the present case, none of these cases involved substantive expert testimony, such as

5 critiques of the opposing expert’s opinion and complicated analysis of applicable regulations.

6 III. The MPSJ and Elmer Exhibit 18 Include Citations to Statements Made in Compromise Negotiations in Violation of FRE 408.
7 As set forth in the Motion to Strike, Defendant’s MPSJ repeatedly used statements in
8 Plaintiffs’ Meet and Confer charts to attempt to prove the invalidity of Plaintiffs’ claims in
9 clear violation of FRE 408. Pls.’ Mot. at 7-8. Defendant’s only argument justifying this
10 violation is that Plaintiffs somehow “waived” the protection of FRE 408 by citing to Meet and
11 Confer charts in discovery requests. Mot. to Strike Reply at 3-4. This argument -- which
12 Defendant does not support with even one case citation or other authority -- is wrong.
13 FRE 408(a) prohibits a party from using statements made in compromise negotiations
14 “to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or
15 amount, or to impeach through a prior inconsistent statement or contradiction.” Plaintiffs’
16 reference to the Meet and Confer charts was not for any of the purposes prohibited by FRE
17 408. Rather, these discovery requests simply sought to identify Defendant’s position as to
18 violations alleged by Plaintiffs, such as whether Defendant asserted a defense to the violation
19 or challenged the measurement. See Supp. Hikida Decl. Ex. 1 at 12-13 (Docket no. 496-3,
20 filed Nov. 25, 2009).
21 For example, Plaintiffs asked: “With respect to the elements listed in the Meet and
22 Confer Charts for which there are ADA Citations, identify any such element as to which you
23 contend the technical infeasibility provision applies, see, e.g., 28 C.F.R. pt. 36, app. A,
24 § 4.1.6(1)(j), state the basis for such contention, identify all documents supporting such
25 contention, and identify all persons with knowledge relating to such contention.” Supp. Hikida
26 Decl. Ex. 1 at 12.
27

28

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 6

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page7 of 8

1

Nothing about these discovery requests violated FRE 408. Plaintiffs did not use

2 statements in the Meet and Confer Charts for purposes prohibited by FRE 408, but rather

3 simply to identify the particular set of violations for which Defendant was required to state its

4 position.

5

In contrast, Defendant explicitly attempted to use purported omissions of specific

6 violations from the Meet and Confer Charts to argue that Plaintiffs’ claims as to those

7 violations are invalid. See, e.g., Pls.’ Mot. at 8. This is a per se violation of FRE 408.

8 IV. The MPSJ and Elmer Exhibit 18 Include Several Factual Contentions That Are

Not Supported by an Affidavit, Declaration or Appropriate Reference to the

9

Record In Violation Of Local Rule 7-5.

10

As demonstrated in Plaintiffs’ Motion to Strike, the MPSJ and Elmer Exhibit 18

11 included several bald factual contentions without any evidentiary support, violating Local Rule

12 7-5. Pls.’ Mot. at 7.

13

In support of its Reply Memorandum of Points and Authorities in Support of its Motion

14 for Partial Summary Judgment (“MPSJ Reply,” Docket No. 496), Defendant has now

15 submitted Exhibit 1 to Steve Elmer’s Supplemental Declaration. Several factual assertions in

16 this exhibit continue to violate Local Rule 7-5 because they fail to cite any evidentiary 17 support.7

18

In addition, Defendant has added citations to photographs and other evidence that

19 purportedly support its factual assertions. As explained above, Defendant has failed to provide

20 the required foundation for the photographs submitted through the Elmer Supplemental

21 Declaration.

22

23

24

25

26

27

7

See, e.g., Store 137, item 199 (Supp. Ex. 1 at 8); Store 955, item 533 (Supp. Ex.

1 at 64); Store 2423, item 63 (Supp. Ex. 1 at 119); Store 2918, item 401 (Supp. Ex. 1 at 164);

28 Store 2961, item 339 (Supp. Ex. 1 at 195).

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 7

Case4:02-cv-05849-PJH Document505 Filed12/02/09 Page8 of 8

1 V. The MPSJ and Elmer Exhibit 18 Cite Documents and Photographs That

Defendant Did Not Submit to the Court.

2

In connection with its MPSJ Reply, Defendant submitted some of the documents cited

3

in its MPSJ and Elmer Exhibit 18. As set forth above, because Defendant is submitting this

4

evidence for the first time with its Reply Brief, the evidence should be ignored.

5

VI. Conclusory Assertions in the Reeves Declaration and Elmer Exhibit 18 Should be

6

Struck.

7

The Reeves Declaration and Elmer Exhibit 18 included a number of conclusory

8 assertions that should be struck. See Pls.’ Mot. at 13-14. Defendant ignored this issue in its

9 Motion to Strike Response, and the conclusory assertions identified by Plaintiffs in Elmer

10 Exhibit 18 carried over into Elmer Supplemental Exhibit 1. See, e.g., Elmer Supp. Ex. 1 at 19

11 (element 515) & 19-20 (element 533) (claiming that Defendant has taken unidentified “steps”

12 to ensure continuing compliance).

13

CONCLUSION

14

For the reasons set forth above, Plaintiffs respectfully request that their Motion to

15 Strike be granted.

16

17

18

Respectfully submitted,

19

FOX & ROBERTSON, P.C.

20

By: /s/ Timothy P. Fox

21

Timothy P. Fox, Cal. Bar No. 157750

Amy F. Robertson, pro hac vice

22

104 Broadway, Suite 400

Denver, Colorado 80203

23

Tel: (303) 595-9700

Fax: (303) 595-9705

24

25 December 2, 2009

Attorneys for Plaintiffs

26

27

28

Case No. 02-CV-05849 PJH JL Plaintiffs’ Reply Brief in Support of their Motion to Strike

Page 8

 
 Case4:02-cv-05849-PJH Document512 Filed12/23/09 Page1 of 2

United States District Court For the Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

7 FRANCIE MOELLER, et al.,
8 Plaintiffs,
9 v.
10 TACO BELL CORPORATION,
11 Defendant.
12 _______________________________/

No. C 02-5849 PJH
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

13

The motion of defendant Taco Bell Corporation (“Taco Bell”) for summary judgment

14 on plaintiffs’ claims under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12181,

15 et seq., came on for hearing before this court on December 16, 2009. Plaintiffs appeared

16 by their counsel Timothy Fox and Amy Robertson, and Taco Bell appeared by its counsel

17 Gregory Hurley and Richard Hikida.

18

Having read the parties’ papers and carefully considered their arguments, and good

19 cause appearing, the court DENIES the motion for the reasons stated at the hearing.

20 Specifically, the court is unable to determine, based on “the pleadings, the discovery and

21 disclosure materials on file, and [the] affidavits,” Fed. R. Civ. P. 56(c)(2), whether plaintiffs’

22 claims are moot as to any ADA violations claimed as to any of the Taco Bell stores at issue.

23

In addition, based on the discussion at the hearing, the court set the following

24 schedule:

25

1. No later than March 23, 2009, plaintiffs will provide Taco Bell with a list

26 showing all ADA and Title 24 violations for all stores. This list will be compiled following an

27 inspection by plaintiffs, with notice to Taco Bell, of all stores at issue. The violations will be

28 listed as of the date of the inspection(s).

Case4:02-cv-05849-PJH Document512 Filed12/23/09 Page2 of 2

United States District Court For the Northern District of California

1

2. Following Taco Bell’s receipt of the list of ADA and Title 24 violations, the

2 parties shall meet and confer. Within 30 days, they shall prepare a list, by store, of the

3 violations that have been remediated and are not likely to recur, and plaintiffs shall prepare

4 a second list, of violations that have not been remediated, or that are likely to recur.

5 Plaintiffs shall submit this second list and a proposed injunction to the court.

6

4. Discovery regarding state law violations as to all stores shall commence 30

7 days after the meet and confer. The discovery period will be 120 days.

8

5. At the conclusion of the discovery period, plaintiffs will choose the store they

9 wish to use as an exemplar, and the parties will file cross-motions for summary judgment

10 as to that one store.

11

6. Following the ruling on the cross-motions, any issues remaining (ADA and/or

12 state law) will be tried as to that one store. Following trial, the court will determine how to

13 proceed with respect to the remaining 219 stores.

14

7. This schedule may be modified (subject to court approval) if both sides agree

15 to the modification. The court will not entertain any disputed motions to modify the

16 schedule.

17

18 IT IS SO ORDERED.

19 Dated: December 23, 2009 20 21

______________________________ PHYLLIS J. HAMILTON United States District Judge

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FOX & ROBERTSON, P.C. 1 Timothy P. Fox (Cal. Bar No. 157750)
Amy F. Robertson, Pro Hac Vice 2 104 Broadway, Suite 400
Denver, Colorado 80203 3 Tel: (303) 595-9700
Fax: (303) 595-9705 4 Email: tfox@foxrob.com

5 LAWSON LAW OFFICES Antonio M. Lawson (Cal. Bar No. 140823)
6 835 Mandana Blvd. Oakland, CA 94610
7 Tel: (510) 419-0940 Fax: (510) 419-0948
8 Email: tony@lawsonlawoffices.com

9 Attorneys for Plaintiffs

10 GREENBERG TRAURIG, LLP Gregory F. Hurley (Cal. Bar No. 126791)
11 Richard H. Hikida (Cal. Bar No. 196149) 3161 Michelson Drive, Suite 1000
12 Irvine, California 92612 Telephone: (949) 732-6500
13 Facsimile: (949) 732-6501 hurleyg@gtlaw.com, hikidar@gtlaw.com
14

15

Attorneys for Defendant TACO BELL CORP.

16

Mari Mayeda (Cal. Bar No. 110947) P.O. Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman (Cal. Bar No. 83838) Jocelyn Larkin (Cal. Bar No. 110817) 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20

21

FRANCIE E. MOELLER, et al.,

22

Plaintiffs,

23

vs.

24

TACO BELL CORP.,

25

Defendant.

26

Case No. C 02-5849 PJH JL
[PROPOSED] ORDER RE: BIFURCATION AND DISCOVERY AND EXEMPLAR TRIAL

27
1

Case No. C 02-5849 PJH JL
OC 286,550,463v2

Case4:02-cv-05849-PJH Document524 Filed04/05/10 Page5 of 5

1

PURSUANT TO STIPULATION, IT IS SO ORDERED:

2

1. Discovery at this stage shall be limited to liability issues arising out of state law claims.

3

No discovery shall be permitted, at this time, as to individual class member claims of

4

damages.

5

2. An initial trial shall be held regarding an exemplar store, store number 4518. The trial as

6

to this store shall be bifurcated into stages. The first stage of the trial shall be on the

7

issues of whether there have been violations of federal and/or state law and injunctive

8

relief.

9

3. The parties stipulate that the first stage of the trial on the exemplar store shall be to the

10

Court and not to a jury.

11

4. After the trial of this first stage of the exemplar trial, a further case management

12

conference will be held to discuss further proceedings in this case, including trial of the

13

damages phase for the exemplar store.

14

UNITED S ALIFORNIA

OURT NORTH

15 16 17 Dated: 4/5/10 18 19 20 21 22 23

TATES DISTRICT C _______TU_hn_ei_teH_dI_oTS_n_toIa_rSta_ebs_Sl_eDO_Pi_shOt_ry_iRlc_lti_DsC_JE_o._uRH_rEta_mD_ ilton
Judge Phyllis J. Hamilton
ERN DISTRICT OF C

24

25

26

27
2

Case No. C 02-5849 PJH JL
OC 286,550,463v2

 
 1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

7 FRANCIE MOELLER, et al.,

8

Plaintiffs,

No. C 02-5849 PJH

9

v.

10 TACO BELL CORP.,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

United States District Court For the Northern District of California

11

Defendant.

_______________________________/

12

13

The case was filed as a proposed class action case under Title III of the Americans

14 with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Unruh Civil Rights Act, Cal.

15 Civ. Code § 51 et seq. (“Unruh Act”), and the California Disabled Persons Act, Cal. Civ.

16 Code § 54 et seq. (“CDPA”).

17

Plaintiffs are physically disabled California residents who use electric scooters or

18 wheelchairs as their primary means of mobility. Plaintiffs filed this action on December 17,

19 2002, against defendant Taco Bell Corp. (“TBC”), alleging that its corporate-owned

20 restaurants in California contained architectural barriers that prevented plaintiffs’ access to

21 and enjoyment of the restaurants, in violation of the ADA, the Unruh Act, and the CDPA.

22

On February 23, 2004, the court certified the following class:

23

All individuals with disabilities who use wheelchairs or electric scooters for

mobility who, at any time on or after December 17, 2001, were denied, or are

24

currently being denied, on the basis of disability, full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or accommodations of

25

California Taco Bell corporate restaurants.

26 Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004).

27

On October 5, 2004, the court granted the parties’ stipulated request to appoint Bob

28 Evans as Special Master to conduct site visits of all TBC-owned Taco Bell restaurants in

United States District Court For the Northern District of California

1 California; to determine the dimensions, values, and measurements of the customer-

2 accessible elements at those Taco Bell restaurants, under both federal and state

3 standards; and to make recommendations for bringing into compliance any elements

4 whose dimensions, values, or measurements did not comply with those standards. The

5 Special Master issued his report in mid-2005.

6

On February 23, 2007, plaintiffs moved for partial summary judgment as to three

7 types of barriers – the configuration of the queue lines in 77 restaurants, the door force in

8 171 restaurants, and the indoor accessible seating in 54 restaurants. In an order issued

9 August 8, 2007, the court denied the motion as to queue lines, finding triable issues that

10 precluded summary judgment; granted the motion as to interior door force and as to

11 exterior door force for those restaurants constructed after April 1, 1994, and denied it as to

12 exterior door force for those restaurants constructed prior to April 1, 1994; and granted the

13 motion as to the number of accessible seating positions. See Moeller v. Taco Bell Corp.,

14 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) (“Moeller Summ. J.”)

15

In October 2009, TBC filed a motion for partial summary judgment, addressing

16 numerous ADA violations. At the December 16, 2009 hearing, the court denied TBC’s

17 motion, and advised that it would conduct a trial as to one exemplar restaurant to be

18 chosen by plaintiffs, following a period of discovery. In the follow-up December 23, 2009

19 order, the court set a deadline for plaintiffs to provide TBC with a list of all ADA and Title 24

20 violations; a deadline for the parties to meet and confer, and prepare a list of all the

21 violations, for each restaurant, that had been remediated; a deadline for discovery; and a

22 deadline for plaintiffs to select the exemplar restaurant. Plaintiffs chose Taco Bell 4518.

23

On April 5, 2010, the court issued an order bifurcating discovery and the trial of the

24 exemplar restaurant, advising that the first stage of the trial would be on the issues of

25 whether there had been violations of federal and/or state law, and appropriate injunctive

26 relief, with the remaining issues, including trial of the damages phase of the exemplar

27 restaurant, to be scheduled thereafter.

28

From June 6 to June 16, 2011, the court convened an exemplar trial as to Taco Bell

2

United States District Court For the Northern District of California

1 4518, addressing liability and injunctive relief.1 Plaintiffs limited their claims at the exemplar

2 trial to the following twelve elements, as having been in violation of the ADA, the Unruh Act,

3 and/or the CDPA during the class period: (1) the width of access aisle next to van

4 accessible parking space; (2) signage at van accessible parking space; (3) force required

5 to open north entry door; (4) time for north entry door to close; (5) queue line; (6) reach

6 ranges for self-service drink lid dispenser; (7) knee and toe clearance under accessible

7 dining tables; (8) push side maneuvering clearance at women's restroom door; (9) height

8 and position of water closet in the women's restroom (height of seat and distance between

9 centerline of water closet and nearest side wall); (10) obstructions in clear floor space at

10 the water closets in the men's and women's restrooms (position or placement of movable

11 trash cans); (11) height of soap dispenser and toilet seat cover dispenser in the men's and

12 women's restrooms; and (12) lavatory insulation.

13

Plaintiffs’ claims for both liability and injunctive relief are based on alleged violations

14 relating to these twelve elements. Plaintiffs seek injunctive relief compelling TBC to ensure

15 that its restaurants are, and remain, in compliance with applicable standards. They also

16 seek minimum statutory damages under the Unruh Act and/or the CDPA, and attorneys’

17 fees.

18

BACKGROUND

19 A. Customer Witnesses

20

1. Katherine Corbett

21

Named plaintiff Katherine Corbett testified at trial. She has used a power wheelchair

22 for fifteen years. Her 18-year-old daughter also uses a wheelchair for mobility. Ms.

23 Corbett eats at Taco Bell restaurants frequently because she likes the food. She has

24 patronized the Taco Bell restaurant 4518 in San Pablo.

25

The first time Ms. Corbett went inside Taco Bell 4518 was in 2002. Although Ms.

26

27

1 On June 23, 2010, plaintiffs submitteda proposed permanent injunction, setting forth

28 the injunctive relief requested as to all Taco Bellrestaurants that are the subject of this action.

3

United States District Court For the Northern District of California

1 Corbett often uses the drive-through, she has also been inside the restaurant on a number

2 of occasions. She estimated that she has patronized that restaurant approximately 80

3 times between 2002 and 2010; of these visits, she estimated she went inside two to ten

4 times. She tends to eat inside the restaurant when she is with her daughter, and prefers to

5 do that if she has the time. She intends to go inside Taco Bell 4518 in the future.

6

Ms. Corbett uses a van for transportation. When she visited Taco Bell 4518 in 2002,

7 the width of the then-existing access aisle next to the van-accessible parking space was

8 insufficient for her to deploy the lift on her van, roll off the lift, and retract the lift back into

9 the van. If she had parked in the designated space and a car later parked in the adjacent

10 space, there would not have been enough space for her to deploy her ramp and enter her

11 van.

12

However, on this occasion in 2002, Ms. Corbett was able to park and go inside

13 because the designated accessible parking space was unoccupied, as were the space to

14 the left of it and the space to the right of the access aisle. Because of that, she parked her

15 van half in the designated accessible space and half in the adjacent empty space, although

16 it made her uncomfortable to occupy two spaces. After that experience, when she went to

17 Taco Bell 4518 between 2002 and 2010, she parked at another store in the same mall that

18 had wider access aisles.

19

On her 2002 visit, although Ms. Corbett was able to open the north entry door to

20 Taco Bell 4518, it was heavy. In addition, during that visit, she encountered a “queue line”

21 that TBC had put in place to guide customers lining up to place their orders at the counter.

22 The queue line was too narrow for Ms. Corbett to navigate in her wheelchair, and there was

23 a chain extending from the end of the queue line closest to the entrance and the counter.

24 Ms. Corbett could not enter from the far side of the queue line because there was already a

25 customer there. There were no signs indicating what she should do given that she could

26 not fit through the queue line, and she was not offered any direction by TBC employees.

27 With some difficulty, she removed the chain and approached the counter.

28

During a later visit, Ms. Corbett encountered the same queue line, although the

4

United States District Court For the Northern District of California

1 chain was not in place. Nevertheless, there was no signage, and no TBC employee offered

2 assistance. Since there were people in the queue line, Ms. Corbett attempted to keep her

3 place in line by getting the attention of the last person then in line, and saying, “I just want

4 you to know I am going to be over there, but I am in line behind you.” As later customers

5 arrived, she continued to let them know where she was in line, despite the fact that she had

6 to wait off to the side rather than in the queue with others.

7

When it eventually came her turn, however, people were staring at her and one said

8 to her, “Hey, . . . no cutting. . . . You are not in line.” The second cash register was

9 available when it came her turn. However, the presence of other customers lined up at the

10 counter also made it difficult for Ms. Corbett to get to the second cash register in the space

11 available between the queue line and the counter.

12

During the 2002 visit, Ms. Corbett was also unable to reach the drink lids from the

13 self-serve dispenser. No employee offered to assist her, so she asked another customer to

14 hand her a drink lid.

15

During the visit in 2002, when Ms. Corbett looked for a table, she noticed that most

16 had fixed seats that would have prevented her from pulling her wheelchair up to the table.

17 There was no signage indicating the location of accessible seating, but she did find a table

18 with a removable chair. She was not, however, able to pull completely up to that table

19 either, because the supporting post was centered under the table, blocking her feet.

20

In 2002, Ms. Corbett had trouble using both the water closet and the sink in the

21 restroom. The seat of the water closet was too low, making it difficult to transfer on and off.

22 The drain pipe under the sink was not insulated, making it a risk for scalding if Ms.

23 Corbett’s legs came in contact with it. As a result, she washed her hands in cold water.

24

On a subsequent visit, there was a loose trash can under the sink, which meant that

25 she could not get her legs under the sink to wash her hands.

26

Ms. Corbett testified that it was upsetting and unpleasant to encounter so many

27 inaccessible features at the restaurant. The queue lines made her feel like she was cutting

28 in line and being rude, or being privileged or special. She would have used the queue line

5

United States District Court For the Northern District of California

1 if it had been wider; indeed, she prefers “to use what everybody else uses” if possible, and

2 “to be treated like [a] regular customer[ ].”

3

2. Jacques Bronson

4

Jacques Bronson testified at trial concerning his mother’s experiences at Taco

5 Bell 4518. Mr. Bronson’s mother, former class member Elizabeth Googens Bronson,

6 passed away in 2009. Ms. Bronson used a wheelchair and a scooter, and Mr. Bronson

7 lived with her in order to provide assistance.

8

In the years prior to Ms. Bronson’s death, the Bronsons patronized Taco Bell 4518,

9 Ms. Bronson in a motorized scooter. They patronized that particular Taco Bell because it

10 was close to a grocery store where Ms. Bronson liked to shop. She would shop there once

11 a month, and went to Taco Bell almost every time.

12

Each time the Bronsons patronized Taco Bell 4518, Ms. Bronson was unable to

13 use the queue line because she could not fit her scooter through it. The chain at the queue

14 line was in place some of the times they were there; other times it was not. Although Ms.

15 Bronson was able to order, pay for, and carry her own food at other businesses, her son

16 had to order for her and bring the food to her table at Taco Bell 4518, because of the queue

17 line.

18

There were no signs that told Ms. Bronson what to do, nor did any TBC employee

19 ever offer assistance to either of the Bronsons. In fact, on one occasion, when Ms.

20 Bronson pulled up to the chain to wait for Mr. Bronson to go through the queue line, a TBC

21 employee told her that she couldn’t stay there. Mr. Bronson asked to speak to the

22 manager, and asked if his mother could go around the far end of the queue line to go to the

23 front of the line. The manager said, “No,” because people in line might object. Mr.

24 Bronson observed that his mother appeared frustrated by this interaction, and resigned by

25 the need to rely on her son. After this interaction, when the Bronsons went to Taco Bell

26 4518, Ms. Bronson would go straight to a table while her son ordered for her.

27

3. Uverda Harry

28

Class member Uverda Harry testified at trial. She uses a wheelchair. Ms. Harry first

6

United States District Court For the Northern District of California

1 patronized Taco Bell 4518 in 1994. She eats there because it is economical, and because

2 it is close to her medical appointments, including physical therapy. On average, she goes

3 to Taco Bell 4518 three times per month, and expects that she will continue to patronize

4 Taco Bell 4518 on future days when she has physical therapy appointments.

5

Ms. Harry testified that the north double doors close too quickly, and have closed on

6 the leg extenders of her wheelchair and on her ankle as she was attempting to move

7 through the doors. She has also had trouble opening the north entry door, finding it too

8 heavy. When she had trouble opening the door, no TBC employee did anything to assist

9 her.

10

Ms. Harry has encountered the queue line at Taco Bell 4518, both with and without

11 the chain. On one occasion, Ms. Harry attempted to go through the queue line in her

12 wheelchair, but became stuck. Because of the queue line, Ms. Harry found it necessary to

13 ask others – her children, acquaintances, and strangers – to place her order for her. On

14 one occasion, she had to rely on a colleague, even though she was embarrassed to have

15 to ask.

16

Ms. Harry never attempted to proceed directly to the counter to place her order, as

17 she thought that would be cutting in line, nor to go around the far end of the queue line,

18 because she observed that that was where customers picked up items. She never

19 observed any signs telling her what to do if she couldn’t use the queue line, nor did any

20 TBC employee ever offer her assistance placing her order or instructions on what to do in

21 light of the queue line.

22

Ms. Harry testified that she wants to be an independent person, and that not being

23 able to do things for herself makes her feel like a failure. Her experience with the doors

24 made her feel futile, and having to rely on her children or a colleague to place her order

25 made her feel a little distraught and even brought her to tears on several occasions. Ms.

26 Harry would have preferred an accessible queue line because it would not have made her

27 feel like she was different than other customers.

28

Ms. Harry never used the restroom at Taco Bell 4518 because she observed that

7

United States District Court For the Northern District of California

1 it would have been difficult for her to navigate up to the door and use the handle to open it.

2

Several years ago, Ms. Harry complained to TBC by using their toll-free number.

3 She voiced concerns about the doors, the queue line, and the counter, and provided her

4 name and phone number, but never heard back from TBC.

5

4. Yvonne Westbrook-White

6

Yvonne Westbrook-White testified at trial. She uses a scooter for mobility. Ms.

7 Westbrook-White patronized Taco Bell 4518 approximately twice per month between 2001

8 and 2005. She stopped going in 2005 because she was trying to eat a healthier diet.

9 However, she plans to go back because she likes the tacos.

10

On her first visit in 2001, Ms. Westbrook-White encountered the queue line; the

11 chain was in place at that time. She saw that the queue line was narrow and the turn area

12 appeared too small for her to get in. She did not, however, see any signs indicating what

13 she was supposed to do as a person using a scooter, nor did any TBC employee provide

14 instructions. Assuming it was the way to place her order, Ms. Westbrook-White attempted

15 to use the queue line but got stuck at the turn. By that time there were customers lined up

16 behind her in the queue, whom she had to interrupt in order to back all the way out of the

17 queue line. She observed that the customers behind her appeared disgusted and

18 impatient.

19

When TBC employees saw her backing out, they told her to go to the far end of

20 the line. She testified that the experience made her feel less than a person, because

21 “everyone else could get through the queue line, order their food, and go about their

22 business” while she had to “interrupt the people who that were trying to do just that, and

23 move them out of the way so [she] could get preferred treatment.” She did not like getting

24 preferred treatment, as she wants to be treated like everybody else. Thus, she would have

25 preferred an accessible queue line. She did not try to use the queue line after that first

26 visit, but instead went off to the side.

27

After she got her order, Ms. Westbrook-White was unable to reach the drink lids,

28 and ended up having to ask an employee for help, though she would have preferred to do

8

United States District Court For the Northern District of California

1 this herself. When she tried to sit down at one of the accessible dining tables, she found

2 that the table leg made it impossible for her to get under the table. This caused her to have

3 to sit sideways to the table to eat. This is not her preferred way of eating because she

4 would like “to face [her] food like everybody else.”

5

Ms. Westbrook-White spoke with employees of Taco Bell 4518 about the issues

6 described above but got, as she described it, a “typical kid reaction – ‘Okay, ma’am,’ and

7 on about their business.”

8

5. Curtis Cone

9

Class member Curtis Cone testified by deposition. Ms. Cone uses a wheelchair.

10 She has patronized Taco Bell 4518 because it is close to an area where she shops.

11

Ms. Cone’s major difficulty at Taco Bell 4518 was the queue line, which was too

12 narrow for her wheelchair. She didn’t try to use the queue line at Taco Bell 4518 because

13 she had become stuck in a Taco Bell queue line in the past. Instead, she asked the person

14 she was with to order for her, though she does not like to do that. However, she feels that

15 if she goes to the front of the line herself, it looks like she’s cutting in front of people, which

16 she finds embarrassing and upsetting.

17

Although Ms. Cone is living temporarily in North Carolina, she testified that she will

18 probably patronize Taco Bell 4518 after she returns to the Bay Area.

19 B. Special Master

20

In 2004, the parties agreed to have Bob Evans, a Certified Access Specialist, survey

21 twenty Taco Bell restaurants as part of a “Pilot Program,” which he did in June and July

22 2004. In September 2004, the parties jointly proposed to the court that it appoint Mr. Evans

23 as a Special Master. On October 5, 2004, the court issued an order appointing Mr. Evans

24 Special Master to survey the remaining Taco Bell restaurants at issue in this action.

25

Mr. Evans is the principal of Equal Access, which specializes in all matters related to

26 accessibility. He is a licensed architect, and, as a Certified Access Specialist in California,

27 was required to pass an exam administered by the state designed to ensure that those who

28 hold themselves out as access consultants in fact know the applicable codes and

9

United States District Court For the Northern District of California

1 standards. See Cal. Gov’t Code §§ 4459.5-4459.8; Cal. Code Regs. tit. 21, § 111, et seq.

2

Mr. Evans surveyed approximately 223 Taco Bell restaurants. The purpose of the

3 site visits was for Mr. Evans to use his expertise under the Department of Justice

4 Standards for Accessible Design (“DOJ Standards” or “ADAAG”), 28 C.F.R. pt. 36, app. A,

5 and Title 24 of the 2002 California Building Code (“Title 24 (2002)”) to determine the

6 dimensions, values and measurements of the customer accessible elements at the

7 California Outlets under the ADAAG and/or Title 24 (2002) at the time of the site visit and to

8 make recommendations as he saw fit for bringing into compliance those elements whose

9 dimensions, values or measurements do not comply with ADAAG and/or Title 24.

10

Mr. Evans worked with an assistant, Larry Recht, to conduct the surveys in this

11 case. Mr. Evans trained Mr. Recht in conducting the Special Master survey, instructed him

12 to take photos of certain conditions in the restaurants he surveyed, and reviewed Mr.

13 Recht’s field notes and photos before incorporating them into the typewritten Special

14 Master survey forms.

15

Mr. Recht surveyed Taco Bell 4518 on April 26, 2005, and the Special Master’s

16 report concerning that restaurant was sent to the parties in or about June 2005. Among

17 other things, the Special Master found as follows with respect to Taco Bell 4518:

18

(1) the access aisle adjacent to the single designated accessible parking

19 space was 60 inches wide;

20

(2) the force required to open the north entry door (the primary entrance) was

21 ten pounds on the left side and seven and a half pounds on the right;

22

(3) the closing time of the north entry door was three seconds on the left and

23 two seconds on the right;

24

(4) the width of the queue line was 21 3/4 inches at the entrance, 22 1/4 to 22

25 3/8 inches along the first lane, 22 inches at the turn, and 22 to 22 1/4 inches along the

26 second lane;

27

(5) the reach range to the drink lids – which was over an obstruction – was

28 52 inches high and 28 1/4 inches laterally;

10

United States District Court For the Northern District of California

1

(6) the depth of the knee clearance at the two designated accessible tables

2 was 10 1/2 to 11 inches, and the required depth of 19 inches was obstructed by the center

3 support pole under the table;

4

(7) the maneuvering clearance at the push side of the women’s restroom door

5 was four inches beyond the strike jamb; the door had a closer and a latch;

6

(8) the centerline of the water closet in the women’s restroom was 20 inches

7 to the near wall;

8

(9) the height of the water closet seat in the women’s restroom was 15 1/2

9 inches;

10

(10) the height of the soap dispenser in the women’s restroom was 45

11 inches;

12

(11) the height of the toilet seat cover dispenser in the women’s restroom was

13 52 inches;

14

(12) the height of the soap dispenser in the men’s restroom was 46 inches;

15

(13) the height of the toilet seat cover dispenser in the men’s restroom was

16 52 1/2 inches;

17

(14) the distance from the water closet to the far wall in the men’s restroom

18 was 38 inches; a trash can obstructed that area;

19

(15) the distance from the front of the water closet to the wall in front of it in

20 the women’s restroom was 46 5/8 inches; a trash can obstructed that area.

21 C. Later Conditions at Taco Bell 4518

22

In the summer of 2006, TBC retained Alianza Development International, LLC

23 (“Alianza”) to serve as project manager over the modification of approximately 140

24 California corporate-owned Taco Bell restaurants that are at issue in this litigation, to

25 enhance their accessibility for individuals with mobility impairments. Alianza surveyed Taco

26 Bell 4518 in February 2007, and subsequently oversaw accessibility modifications at Taco

27 Bell 4518 between February and June 2007.

28

In 2007, Alianza stated that it had restriped the access aisle adjacent to the

11

United States District Court For the Northern District of California

1 accessible parking space to be eight feet wide; added new door closers to the double north

2 entrance doors; completely wrapped the drain pipes and hot water supply line in the men’s

3 restroom; and removed the floor trash can from the women’s restroom.

4

When Alianza restriped the parking space in the spring of 2007 to provide a

5 compliant van accessible space, it did not install a van accessible sign at the new space.

6 When the restaurant was surveyed by plaintiffs’ experts in March 2008, there was still no

7 van accessible sign. Photographs produced by TBC show that there was no sign in the

8 summer of 2009.

9

TBC argued that these photos were taken just before a new sign was installed.

10 However, Steve Allen Elmer, TBC’s Director of ADA Compliance, testified at trial that TBC’s

11 maintenance vendor, Maintco, was supposed to take photos both before and after

12 performing modifications, and while there is an “after” photo of the van accessible sign from

13 the summer of 2009, TBC did not provide a photo showing that sign in 2007 or 2008.

14

Mr. Elmer’s testimony demonstrates that there was no sign in place when Maintco

15 inspected Taco Bell 4518 in the summer of 2009 – that is, before it added the sign – and

16 other photos show that there had been no sign on two prior occasions approximately a year

17 apart.

18

Plaintiffs conducted site inspections attended by one or more of their retained

19 accessibility experts at approximately 180 corporate-owned Taco Bell restaurants

20 throughout the fall of 2008 and spring of 2009. Plaintiffs’ accessibility expert Eric McSwain

21 – who has extensive experience surveying facilities for compliance with the ADAAG and

22 Title 24 – surveyed approximately 190 Taco Bell restaurants. Among those restaurants

23 was Taco Bell 4518, which Mr. McSwain surveyed on March 17, 2008.

24

However, in his May 1, 2009 expert report, Mr. McSwain did not address all twelve

25 of the above-listed barriers at Taco Bell 4518. Mr. McSwain’s report addressed only the

26 lack of a van accessible parking sign, the door closing speed of the entrance door, whether

27 the lavatory drain pipe and hot water supply line were insulated or covered in the men’s

28 restroom, and whether the loose trash can in the women’s restroom posed an obstruction

12

United States District Court For the Northern District of California

1 to the clear floor space at either the water closet or toilet seat cover dispenser.2

2

When Mr. McSwain surveyed Taco Bell 4518 in March, 2008, despite the fact that

3 the north entry door closer had been replaced in 2007, the door closing time of its two

4 leaves was 2.5 seconds and 2.75 seconds, respectively.

5

When Mr. McSwain surveyed Taco Bell 4518 in March, 2008, the insulation on

6 the men’s restroom lavatory pipes was gone, despite the fact that it had been replaced by

7 Alianza in 2007. Photographs produced by TBC show that there was no insulation on the

8 men’s restroom lavatory pipes on several subsequent occasions in 2009.

9

Although Alianza stated that the floor trash can had been removed in the spring

10 of 2007, when Mr. McSwain surveyed Taco Bell 4518 in March 2008, it had returned to the

11 location in which the Special Master observed it to be an obstruction, and it was in that

12 same location in photographs taken in the summer and fall of 2009.

13

The van accessible parking sign, the men’s restroom lavatory insulation, and the

14 trash can in the women’s restroom were out of compliance in summer and fall of 2009

15 despite the fact that Mr. McSwain’s report was issued on May 1, 2009, informing TBC of

16 these violations.

17

Mr. Evans surveyed Taco Bell 4518 on June 3, 2011 and did not find any of these

18 violations.

19 D. Construction and Relevant Alterations at Taco Bell 4518

20

Taco Bell Restaurant 4518 was constructed on November 18, 1991. Although the

21 building was issued a certificate of occupancy, TBC did not produce any evidence at trial

22 that it had applied for, or been granted, an unnecessary hardship or any other exemption

23 from the local building department in connection with the construction or any later

24 alterations of Taco Bell 4518 that would have excused any deviations from Title 24.

25

In addition, while TBC submitted building plans stamped by the City of San Pablo

26 Building Department, and while Mr. Elmer testified concerning the general practices of

27

28

2 Prior to the trial, the court granted Taco Bell’s motion in limine to exclude testimony by Mr. McSwain of alleged barriers not enumerated in his May 1, 2009 expert report.

13

United States District Court For the Northern District of California

1 building departments concerning plan review and inspections, TBC did not offer testimony

2 from any individual with first-hand knowledge of the San Pablo Building Department’s plan

3 review or inspection process with respect to Taco Bell 4518.

4

TBC admitted in its responses to plaintiffs’ requests for admissions that the parking

5 lot at Taco Bell 4518 was re-striped in about 2003, and again in about 2004; and that the

6 restroom doors and the toilet in the women’s restroom were removed and replaced in about

7 2003.

8 E. Readily Achievable Barrier Removal

9

Plaintiffs rely on the ADA’s readily achievable barrier removal requirement for

10 two of the violations at issue in Taco Bell 4518: the door closing time of the north entry

11 doors, and the knee clearance under the two accessible dining tables surveyed in 2005.

12

Plaintiffs’ expert James Terry estimated the cost (in 2001 dollars) of replacing

13 the door closer and replacing the bases of two accessible tables to achieve compliant knee

14 clearance at $1,386.04. He testified further that because this type of modification could be

15 done while the restaurant was closed, there would be little impact on operations.

16

Plaintiffs’ expert D. Paul Regan, a Certified Public Accountant, testified that it

17 would have been easily accomplishable without much difficulty or expense for TBC to have

18 incurred the cost of $1,386.04 to replace the door closers and table bases in 2001. Mr.

19 Regan based this conclusion on an analysis of the profits from Taco Bell 4518 in 2001,

20 from all California corporate-owned restaurants, from Taco Bell Corp., and from Yum!,

21 TBC’s parent corporation.

22

TBC did not offer any evidence relating to the cost, financial analysis, or impact

23 of barrier removal at Taco Bell 4518.

24 F. TBC’s Access Policies

25

1. Policies in place prior to 2005

26

Mr. Elmer became Director of ADA Compliance for TBC in 2005, and he currently

27 holds that position at Yum! Brands, TBC’s parent company. In September 2005, plaintiffs

28 took Mr. Elmer’s Rule 30(b)(6) deposition as TBC’s “person most knowledgeable” about the

14

United States District Court For the Northern District of California

1 company’s practices and policies concerning accessibility of architectural features at

2 corporate restaurants in California.

3

At his 2005 deposition, Mr. Elmer testified that TBC had no policies in place to

4 monitor whether certain elements that change frequently remained in compliance with

5 accessibility requirements, including entrance and restroom door force, door closing time,

6 and restriping of parking lots.

7

Mr. Elmer also testified that Facility Leaders were responsible for a number of

8 accessibility tasks. Facility Leaders, for example, were responsible for ensuring that all

9 repairs, and all minor construction that did not rise to the level of a restaurant remodel,

10 complied with accessibility requirements. Facility Leaders were also responsible for

11 providing “informal” training to restaurant employees about accessibility.

12

Mr. Elmer testified that accessibility regulations are “highly technical, ha[ve] a

13 number of different aspects, [are] in many cases beyond the expertise level of a facilities

14 leader . . .” Nevertheless, TBC did not provide Facility Leaders with accessibility training

15 until 2005.

16

For example, Jamie de Beers, the Facility Leader for Northern California from 1997

17 to 2005, testified in her deposition that she had not received any formal accessibility

18 training until she attended an accessibility meeting in 2005. As a result, Ms. de Beers

19 testified that, prior to the 2005 meeting, she had “no clue” about various accessibility

20 requirements. She thought access regulations simply required being “able to get to the

21 counter and be served. That, to me, was access and have a parking spot. And, now, it’s so

22 confusing with the inches and the height.”

23

2. Policies from 2005 to present

24

Beginning in 2005, and ending in late 2010, TBC issued a series of documents

25 setting forth its accessibility policies. TBC’s access policies are centralized – policies in

26 place at Taco Bell 4518 are also in place at all other California corporate Taco Bell

27 restaurants. Over time, provisions in later policies contradicted provisions in earlier

28 policies, and omitted architectural elements that had been covered by earlier policies.

15

United States District Court For the Northern District of California

1

For example, TBC’s policy concerning door force changed from 8 pounds in 2005,

2 to 5 pounds in 2006, to 5 pounds or 8.5 pounds in April 2009, depending upon the

3 permitting date of a restaurant. By 2010, there were three policies in effect, each of which

4 set forth a different standard for exterior door force. TBC’s “DMA Ops Leader” Erich

5 Moxley testified at trial that it was his understanding that it is TBC’s policy that door opening

6 force should be 8.5 pounds regardless of when the store was built, and a form dated

7 October 2010 asks only whether the exterior doors open with 8.5 pounds of pressure or

8 less.

9

Similarly, although TBC’s 2005 policy covered closing time on restroom and

10 entrance doors, Mr. Elmer testified that that issue had been omitted from TBC’s 2006 and

11 2009 policies.

12

In addition, the evidence submitted at trial demonstrated that TBC had repeatedly

13 violated its own policies. For example, Mr. Elmer testified that it has been TBC’s policy

14 since 2005 to have accessible signs designating accessible parking spaces. Nevertheless,

15 photographs admitted at trial demonstrated that there was no such signage at Restaurant

16 4518 in June 2007, March 2008, and the summer of 2009.

17

Mr. Elmer also testified that it has been TBC’s policy since December 2006 not to

18 locate trash cans in front of restroom accessories. However, photographs admitted at trial

19 demonstrated that there was a trash can in front of the toilet seat cover dispenser in the

20 women’s restroom of Restaurant 4518 in March 2008, in the summer of 2009 and at some

21 point between August and October 2009.

22

Mr. Elmer testified further that it has been TBC’s policy since at least at least 2007 to

23 insulate water supply and drain pipes under restroom lavatories, yet photographs admitted

24 at trial demonstrated that the pipes under the lavatory in the men’s restroom at Restaurant

25 4518 were not insulated in March 2008, in the summer of 2009, and at some point between

26 August and October 2009.

27

3. Current policies concerning maintaining access.

28

During the trial, Mr. Elmer identified four TBC policies that are intended to ensure

16

United States District Court For the Northern District of California

1 that accessibility is maintained at its restaurants: (a) the Maintenance Technician

2 Checklist; (b) Maintco surveys and the “3rd Party ADA Maintenance Vendor Checklist,”

3 which is meant to be used during the surveys; (c) “Success Walks”; and (d) Pre-Opening

4 “Access for the Disabled Walks” and the checklist of items that are supposed to be checked

5 during those walks. According to Mr. Elmer, these four policies are in place at Taco Bell

6 4518, as well as all other California corporate Taco Bell restaurants.

7

a. Maintenance Technician Checklist.

8

According to testimony from Mr. Elmer, each time a Maintenance Technician visits a

9 restaurant, he or she is supposed to check each of the 34 items listed on the ADA

10 Maintenance Technician Checklist. The Maintenance Technician for Taco Bell 4518 is

11 Doug Henry. TBC did not call Mr. Henry as a witness at trial.

12

Nevertheless, during his deposition, Mr. Henry testified that he had never seen the

13 ADA Maintenance Technician Checklist, that he did not understand what some of the items

14 on the Checklist meant, and that his standard practice was to check only five of the 34

15 items on the Checklist.

16

The ADA Maintenance Technician Checklist includes the following language in bold:

17 “If a deviation from an applicable guideline is detected following an inspection, these

18 item(s) shall be reviewed by our ADA Compliance team to determine whether certain

19 limited exceptions to the guidelines apply, which will be evaluated on an item-by-item

20 basis.”

21

b. Maintco twice-yearly surveys

22

According to Mr. Elmer, TBC has entered into a year-to-year contract with Maintco

23 to perform twice yearly surveys of its restaurants. Those surveys began in mid-2009.

24 Each time it surveys a Taco Bell restaurant, Maintco sends an invoice to TBC, and also

25 sends a completed Maintco Checklist.

26

At trial, TBC submitted invoices from Maintco for surveys of Taco Bell 4518. Based

27 on those invoices, there was no Maintco survey at Taco Bell 4518 between June 12, 2009

28 and August 3, 2010. Based on Mr. Elmer’s testimony that Maintco began its surveys of

17

United States District Court For the Northern District of California

1 Taco Bell 4518 by at least June 2009, there should be at least four, and possibly five,

2 Maintco Checklists for that restaurant. At trial, TBC submitted only two such checklists for

3 Taco Bell 4518.

4

The Maintco Checklist includes the following language in bold: “If a deviation

5 from an applicable guideline is detected following an inspection, these item(s) shall be

6 reviewed by our ADA Compliance team to determine whether certain limited exceptions to

7 the guidelines apply, which will be evaluated on an item-by-item basis.”

8

c. Success walks

9

According to Mr. Elmer, every 30 minutes, the manager in charge of a Taco Bell

10 restaurant conducts a “success walk” through the restaurant, during which “they check for

11 access for the items that the plaintiffs have raised here.” TBC did not submit the checklist

12 used for the Success Walks at trial.

13

Jeffrie Kuan-Bone, who for the last two years has been the Restaurant General

14 Manager (“RGM”) at Taco Bell 4518, testified during his deposition that success walks do

15 not address disability or ADA issues. TBC did not call Mr. Kuan-Bone as a witness at trial.

16

d. Pre-opening “Access for the Disabled Walks”

17

According to Mr. Elmer, each morning before a Taco Bell restaurant opens, the

18 manager in charge is supposed to check each of the accessibility items on Ex. A-50, the

19 “Access for the Disabled Walk.” Taco Bell RGMs were responsible for making sure that

20 these walks occurred.

21

Taco Bell did not call any employees at Taco Bell 4518 who were involved in

22 the process of opening the restaurant, or whose responsibilities included conducting the

23 preopening Access for the Disabled Walk.

24

The only Taco Bell 4518 employee to testify in person, Ms. Contreras, testified that

25 her shift started after the restaurant opened. Mr. Kuan-Bone testified during his deposition

26 that he had never heard of a disabled walk, that he had never been given a checklist with

27 specific disability issues, and that the pre-opening walk did not include any accessibility

28 issues.

18

United States District Court For the Northern District of California

1

FINDINGS OF FACT AND CONCLUSIONS OF LAW

2

Having considered the evidence introduced at trial and the arguments made by

3 counsel, the court now makes the following findings of fact and conclusions of law.

4 A. Legal Standards

5

The plaintiff class brings claims under the ADA, the Unruh Act, and the CDPA,

6 alleging violations of applicable accessibility standards throughout the class period.

7

1. Title III of the ADA

8

Title III of the ADA prohibits discrimination on the basis of disability in the full and

9 equal enjoyment of the goods, services, facilities, privileges, advantages, or

10 accommodations of any place of public accommodation by any person who owns, leases

11 (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a).

12

To state a claim under Title III of the ADA, a plaintiff must show that he or she is

13 disabled within the meaning of the ADA; that the defendant is a private entity that owns,

14 leases, or operates a place of public accommodation; and that the plaintiff was denied

15 public accommodation by the defendant because of his or her disability. Arizona ex rel.

16 Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).

17

The class is limited to individuals who use wheelchairs or scooters, and thus

18 plaintiffs satisfy the first element. It is undisputed that the Taco Bell restaurants are places

19 of public accommodation, which satisfies the second element. See 42 U.S.C.

20 § 12181(7)(B).

21

The third element – whether plaintiffs were denied public accommodations on the

22 basis of disability – is met if there was a violation of applicable accessibility standards.

23 See, e.g., Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011);

24 Donald v. Cafe Royale, 218 Cal. App. 3d 168, 183 (1990).

25

There are three categories of accessibility requirements under Title III of the ADA –

26 the “new construction” provisions, which apply to public accommodations constructed after

27 January 26, 1993; the “alteration” provisions, which apply to post-January 26, 1992

28 alterations to buildings that existed as of that date; and the “readily achievable” provisions,

19

United States District Court For the Northern District of California

1 which apply to unaltered portions of buildings constructed before January 26, 1993.

2

All facilities built for first occupancy after January 26, 1993 are required to be “readily

3 accessible to and usable by persons with disabilities, except where an entity can

4 demonstrate that it is structurally impracticable to meet the requirements of the ADAAG, 28

5 C.F.R. pt. 36, app. A. See 42 U.S.C. § 12183(a)(1). All facilities built for first occupancy

6 after January 26, 1993 must comply with the ADAAG. 28 C.F.R. § 36.406.

7

Because Taco Bell 4518 was constructed in 1991, it is not governed by the “new

8 construction” provisions of Title III. However, both the “alteration” and the “readily

9 achievable” provisions do apply. Under the “alteration” provisions, the altered portion of

10 any existing building altered after January 26, 1992 is required, to the maximum extent

11 feasible, to be “readily accessible to and useable by” individuals with disabilities. 42 U.S.C.

12 § 12183(a)(2). To meet this standard, alterations must comply with the ADAAG. 28 C.F.R.

13 § 36.406(a).

14

In existing but unaltered facilities, barriers must be removed where it is “readily

15 achievable” to do so. The removal of barriers is “readily achievable” when it is “easily

16 accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C.

17 §§ 12181(9), 12182(b)(2)(A)(iv). The Ninth Circuit has not decided whether the plaintiff or

18 the defendant bears the burden of proof in showing that removal of an architectural barrier

19 in a non-historic building is readily achievable, but various district courts throughout the

20 Circuit have applied the burden-shifting framework set forth in Colorado Cross Disability

21 Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999 (10th Cir. 2001). See, e.g.,

22 Johnson v. Beahm, 2011 WL 3665114 at *2 (E.D. Cal. Aug. 19, 2011); Vesecky v. Garick,

23 Inc., 2008 WL 4446714, at *2 (D.Ariz. Sept. 30, 2008).

24

In Colorado Cross, the Tenth Circuit held that the “[p]laintiff bears the initial burden

25 of production to present evidence that a suggested method of barrier removal is readily

26 achievable” and that if plaintiff meets that burden, the burden shifts to the defendant, who

27 “bears the ultimate burden of persuasion regarding its affirmative defense that a suggested

28 method of barrier removal is not readily achievable.” Id., 264 F.3d at 1006.

20

United States District Court For the Northern District of California

1

Under either the “alterations” or “readily achievable” provision, whether an

2 architectural element denies full and equal access to persons with disabilities is determined

3 based on the ADAAG. Chapman, 631 F.3d at 945.

4

2. The Unruh Act and the CDPA

5

The Unruh Act and the CDPA prohibit discrimination on the basis of disability in the

6 full and equal access to the services, facilities, and advantages of public accommodation.

7 Public accommodations constructed subsequent to July 1, 1970 are subject to the

8 requirements of Division 13, Part 5.5 of the California Health & Safety Code, relating to

9 access to public accommodations by physically handicapped persons; and to the

10 provisions of Chapter 7 (commencing with § 4450) of Division 5 of Title 1 of the California

11 Government Code (access to public buildings by physically handicapped persons).

12

Since December 31, 1981, the standards governing the physical accessibility of

13 public accommodations in California include those set forth in Title 24 of the California

14 regulatory code (“California standards” or “Title 24"). The California Standards apply to all

15 alterations to facilities, requiring that the altered portion – including a primary entrance to a

16 building, the primary path of travel to the altered portion of the facility, and restrooms

17 serving the altered area – be brought into compliance with the then-applicable standards.

18 See Cal. Code Regs., tit. 24 (1981) § 2-105(b)(11)(B)(4); id. (1984) § 2-105(b)(11)(B)(4); id.

19 (1987) § 2-110(b)(11)(B)(4); id. (1989) § 110A(b)(11)(B)(4); id. (1994) § 110(11)(B)(4); id.

20 (1989) § 1134B.2.1.

21

Because Taco Bell 4518 was constructed in 1991, all elements must comply with

22 Title 24, and the applicable standards are those promulgated in 1989. Cal. Code Regs., tit.

23 24 (1989). Title 24 also applies to alterations, requiring that the altered portion be brought

24 into compliance with the then-applicable standards. See id. (1989) § 110A(b)(11)(B)(4); id.

25 (2002) § 1134B.2.

26

A violation of the standards in Title 24 constitutes a violation of both the Unruh Act

27 and the CDPA. See, e.g., Arnold v. United Artists Theater Circuit, Inc., 866 F.Supp. 433,

28 439 (N.D. Cal. 1994). In addition, the Unruh Act, since 1992, and the CDPA, since 1996,

21

United States District Court For the Northern District of California

1 have also provided that “[a] violation of the right of any individual under the [ADA] . . .

2 constitute[s] a violation of this section.” Cal. Civ. Code §§ 51(f), 54(c).

3

3. Maintenance of accessible features

4

Both the ADA and state law require TBC to “maintain in operable working condition

5 those features of facilities and equipment that are required to be accessible to and usable

6 by persons with disabilities. 28 C.F.R. § 36.211; Cal. Code Regs., tit. 24 (2002) § 1101B.3.

7 B. Standing

8

TBC argues that because it has remediated the numerous barriers found by the

9 Special Master and plaintiff’s expert, and because it has implemented new policies since

10 the filing of this lawsuit, plaintiffs have no standing to seek injunctive relief, which is the only

11 remedy available to private parties for violations of the ADA.

12

Standing is a threshold matter central to the court’s subject matter jurisdiction.

13 Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007); see also Summers v.

14 Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1148 (2009) (Article III limits judicial power

15 to “cases” and “controversies”). Constitutional standing has three elements. To establish

16 standing, a plaintiff must show that he or she has suffered or is threatened with an injury

17 that is both “concrete and particularized,” and “actual or imminent, not conjectural or

18 hypothetical;” that there is a causal link between the injury and the conduct of which the

19 plaintiff complains – that is, that the injury is “fairly traceable” to the challenged conduct;

20 and that the injury is “likely” to be “redressed by a favorable decision.” Bates, 511 F.3d at

21 985 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations

22 omitted)); see also Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832, 837

23 (9th Cir. 2007).

24

The evidence relevant to the standing inquiry consists of “the facts as they existed at

25 the time the plaintiff filed the complaint.” D’Lil v. Best Western Encina Lodge & Suites, 538

26 F.3d 1031, 1036 (9th Cir. 2008) (quoting Skaff, 506 F.3d at 838); see also Lujan, 504 U.S.

27 at 569 n.4. A plaintiff must demonstrate standing for each form of relief sought. Friends of

28 the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 185 (2000);

22

United States District Court For the Northern District of California

1 Bates, 511 F.3d at 985. In a class action, standing is satisfied if at least one named plaintiff

2 meets the requirements. Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001), abrogated

3 in part on other grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005).

4 Under the ADA, when a disabled person encounters an accessibility barrier violating its

5 provisions, it is not necessary for standing purposes that the barrier completely preclude

6 the plaintiff from entering or from using a facility in any way. See Doran v. 7-Eleven, Inc.,

7 524 F.3d 1034, 1041 n. 4 (9th Cir. 2008) (the ADA “does not limit its antidiscrimination

8 mandate to barriers that completely prohibit access”). Rather, the barrier need only

9 interfere with the plaintiff's “full and equal enjoyment” of the facility. 42 U.S.C. § 12182(a).

10

Once a disabled individual has encountered or become aware of ADA violations that

11 interfere with his access to a place of public accommodation, “he has already suffered an

12 injury in fact traceable to the defendant's conduct and capable of being redressed by the

13 courts, and so he possesses standing under Article III.” Doran, 524 F.3d at 1042 n.5.

14

In addition, an ADA plaintiff who has Article III standing as a result of at least one

15 barrier at a place of public accommodation may, in one suit, challenge all barriers in that

16 public accommodation that are related to his or her specific disability. Chapman, 631 F.3d

17 at 950-51 (citing Doran, 524 F.3d at 1047). Thus, a plaintiff need not have encountered all

18 the barriers that impede his or her access in order to have standing to seek an injunction to

19 remove those barriers. Id. at 951-53. In addition, in evaluating whether a civil rights litigant

20 has satisfied the requirements set forth in Lujan, the court should take a broad view of

21 standing, “especially where, as under the ADA, private enforcement suits are the primary

22 method of obtaining compliance with the Act.” Doran, 524 F.3d at 1039-40 (citation and

23 quotation omitted).

24

Here, TBC does not argue that plaintiffs lacked standing at the time the original

25 complaint was filed in 2002. Indeed, testimony at trial established that in 2002, named

26 plaintiff Katherine Corbett personally encountered barriers at Taco Bell 4518, which

27 impaired her full and equal enjoyment of the facility due to her particular disability – as did

28 other members of the class. Thus, Corbett and the class members had standing to sue as

23

United States District Court For the Northern District of California

1 to those barriers in addition to other barriers related to their disability. See Chapman, 631

2 F.3d at 944.

3

However, because “a disabled individual claiming discrimination must satisfy the

4 case or controversy requirement of Article III by demonstrating his standing to sue at each

5 stage of the litigation,” Chapman, 631 F.3d at 946, TBC argues that plaintiffs do not

6 currently have standing to seek injunctive relief. In the alternative, TBC asserts that

7 because Taco Bell 4518 is currently compliant, plaintiffs’ claims have become moot.

8

The argument that plaintiffs do not currently have standing to seek injunctive relief

9 appears to be a challenge to the second prong of the “injury in fact” requirement – the

10 requirement that the injury be “actual or imminent” – or, possibly, to the “redressability”

11 requirement – the requirement that the injury is likely to be redressed by a favorable

12 decision. See Lujan, 504 U.S. at 560-61.

13

When a plaintiff is seeking injunctive relief, the requirement that the injury be “actual

14 and imminent” can be satisfied only where the plaintiff demonstrates “a sufficient likelihood

15 that he will again be wronged in a similar way;” that is, he “must establish a real and

16 immediate threat of repeated injury.” D’Lil, 538 F.3d at 1036-37; Bates, 511 F.3d at 985;

17 see also Chapman, 631 F.3d at 946, 948. Here, TBC argues, because plaintiffs have

18 conceded that Taco Bell 4518 is currently a compliant facility, they lack standing to seek

19 injunctive relief because they cannot show that the injury is likely to recur.

20

In Armstrong, the Ninth Circuit described two ways in which a plaintiff can show that

21 an injury is likely to recur. First, a plaintiff may show that the defendant had, at the time of

22 the injury, a written policy, and that the injury “stems from” that policy. Id., 275 F.3d at 861.

23 “[W]here the harm alleged is directly traceable to a written policy, there is an implicit

24 likelihood of its repetition in the immediate future.” Id. (citation and quotation omitted).

25 Second, the plaintiff may demonstrate that the harm is part of a “pattern of officially

26 sanctioned . . . behavior, violative of the plaintiffs' [federal] rights.” Id. (quoting LaDuke v.

27 Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985)). “[W]here the defendants have repeatedly

28 engaged in the injurious acts in the past, there is a sufficient possibility that they will

24

United States District Court For the Northern District of California

1 engage in them in the near future to satisfy the ‘realistic repetition’ requirement.” Id.

2

Later, in Chapman, the Ninth Circuit identified additional ways in which a plaintiff can

3 show a likelihood of future injury. First, he can demonstrate an intent to return to a

4 noncompliant accommodation. Id., 631 F.3d at 948-49. Evidence of past injury is

5 particularly relevant to making this showing. Id. Second, he can demonstrate that he was

6 deterred from visiting a noncompliant accommodation because he has encountered

7 barriers related to his disability there. Id. at 949-50.

8

TBC contends that because Taco Bell 4518 is currently compliant, plaintiffs cannot

9 establish standing to pursue injunctive relief by demonstrating an intent to return to a

10 noncompliant facility. TBC asserts further that the trial record is devoid of any evidence

11 indicating that named plaintiff Katherine Corbett had the specific intention to return to Taco

12 Bell 4518 to re-encounter the noncompliant barriers that she encountered during her pre-

13 lawsuit visit to Taco Bell 4518.

14

The court finds, however, that plaintiffs have standing to seek injunctive relief in this

15 case. First, named plaintiff Ms. Corbett, and class members Ms. Harry, and Ms.

16 Westbrook-White, all testified at trial that they plan to patronize Taco Bell 4518 in the

17 future. In her deposition, class member Ms. Cone also testified that she plans to patronize

18 Taco Bell 4518 once she has returned to California from her temporary stay in North

19 Carolina. Whether plaintiffs will encounter barriers on those return trips cannot be known

20 with certainty. However, the court finds that plaintiffs have sufficiently established a

21 likelihood that the injury will recur by showing that TBC “repeatedly engaged in injurious

22 acts in the past.” See Armstrong, 275 F.3d at 861.

23

Finally, to the extent that TBC argues that the court lacks jurisdiction over plaintiffs’

24 claims because the violations have been remediated, and the claims are therefore moot,

25 the court notes that while the doctrine of mootness requires that an actual, ongoing

26 controversy exist at all stages of the federal court proceeding, the mootness doctrine is

27 “applied . . . flexibly, particularly where the issues remain alive.” Pitts v. Terrible Herbst,

28 Inc., __ F.3d __, 2011 WL 3449473 at *3 (9th Cir., Aug. 9, 2011). This issue is addressed,

25

United States District Court For the Northern District of California

1 below, in the discussion of TBC’s voluntary cessation defense.

2 C. Findings regarding twelve elements at Taco Bell 4518

3

Both the ADAAG and Title 24 provide that “all dimensions are subject to

4 conventional building industry tolerances for field conditions.” ADAAG § 3.2; see also, e.g.,

5 Cal. Code Regs., tit. 24 (2002) § 1101B.4. In this case, the parties stipulated in their

6 February 1, 2005 Joint Status Conference Statement that once plaintiffs had established a

7 prima facie case of a violation, TBC would bear the burden of proof to put on expert

8 testimony regarding applicable conventional building industry tolerances. The parties

9 subsequently stipulated to a number of specific tolerances, and TBC provided others in

10 responses to interrogatories. The only elements not covered by either stipulations or

11 interrogatory responses are door force, door closing time, and knee clearance.

12

Following the exemplar trial, and the parties’ submission of their proposed findings,

13 TBC submitted additional argument to the court, in which it asserts that based on the Ninth

14 Circuit’s recent decision in Oliver v. Ralph’s Grocery Company, __ F.3d __, 2011 WL

15 3607014 (9th Cir., Aug. 17, 2011), any findings by the court in this action with respect to

16 barriers that violate the ADA must be limited to specific barriers alleged in the first amended

17 complaint (“FAC”), which is the operative complaint. TBC contends that because the FAC

18 identified only two barriers at Taco Bell 4518 – the narrow queue line and inaccessible

19 parking – plaintiffs failed to give TBC “fair notice” of the claims asserted against it, as

20 required under Federal Rule of Civil Procedure 8(a).

21

The court does not agree that Oliver controls this case. As an initial matter, Oliver is

22 distinguishable because it was not a class action. To apply the reasoning in Oliver to a

23 class action would arguably vitiate Federal Rule of Civil Procedure 23. While the named

24 plaintiffs know which barriers they encountered, they do not necessarily know which of the

25 barriers that existed at the time the suit was filed posed a problem for the unnamed class

26 members. At most, Oliver would require the named plaintiffs to list the barriers they

27 themselves encountered, which the have done.

28

Nor does the court agree that plaintiffs failed to give TBC notice of the specific

26

United States District Court For the Northern District of California

1 claims asserted against it. This case, which was filed in December 2002, has been

2 pending for nearly nine years. TBC took the depositions of the named plaintiffs in 2003, at

3 which time the plaintiffs described encountering the following barriers: inaccessible

4 parking, inadequate parking signage, path of travel to entry doors, heavy and otherwise

5 inaccessible entry and restroom doors, narrow queue lines, inaccessible self-service items,

6 insufficient accessible seating, low toilet seats, uninsulated lavatory pipes, and inaccessible

7 restroom amenities. TBC acknowledged many of these claimed barriers in its opposition to

8 plaintiffs’ motion for class certification.

9

TBC was also put on notice of the claimed barriers when it received the report of

10 Bob Evans, the Special Master, in mid-2005. Mr. Evans is an accessibility expert who was

11 jointly retained by plaintiffs and TBC to conduct a survey of all the Taco Bell restaurants

12 (starting with a pilot program of 20 stores). He was instructed jointly by the parties as to

13 which elements he should survey in each restaurant. It is undisputed that Mr. Evans

14 provided a complete survey of all the barriers existing in TBC’s corporate restaurants in

15 2004-2005. Many of the barriers were also documented by plaintiffs’ own expert Eric

16 McSwain in his May 2009 report, to which TBC provided a line-by-line response, and by

17 TBC’s contractors in 2007 and 2009. For TBC to argue, based on the facts in Oliver, that it

18 was not placed on notice of the claimed violations because not all the barriers were listed in

19 the FAC, is to elevate form over substance.

20

Moreover, when it denied TBC’s 2009 motion for summary judgment, the court

21 ordered an exemplar trial as to a single store, and ordered plaintiffs to submit a list showing

22 remediated, unremediated, and recurring violations, which plaintiffs did on June 23, 2010.

23 Further, in preparation for the trial of the exemplar store, the parties filed a Joint Pretrial

24 Statement on April 7, 2011, in which plaintiffs listed the barriers at Taco Bell 4518, relying

25 on their June 23, 2010 filing. At the pretrial conference, TBC objected and attempted to

26 limit the barriers, but the objection was overruled, on the basis that TBC had been on notice

27 for a year (since June 23, 2010) of all the barriers, including those at Taco Bell 4518.

28

The court indicated that the barriers listed on pages 29 and 30 of the Pretrial

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United States District Court For the Northern District of California

1 Statement would be the ones that would be tried during the exemplar trial. Pleadings are

2 superceded by a pretrial order, see DP Aviation v. Smiths Indus. Aerospace & Def. Sys.

3 Ltd., 268 F.3d 829, 842 (9th Cir. 2001), and parties are therefore held to be on notice that

4 issues set forth in a pretrial order are the issues to be tried.

5

1. Van accessible parking space

6

Wheelchair vans generally have lifts or ramps that fold out of the passenger side;

7 thus, they require a wider access aisle to permit the user to wheel down and then off the lift

8 or ramp, and then to retract the lift or ramp into the van. See United States Dep’t of

9 Justice, ADA Technical Assistance, Design Details: Van Accessible Parking (“Design

10 Details”), http://www.ada.gov/adata1.pdf at 15.

11

Although the 1989 version of Title 24 did not require van accessible spaces,

12 both the ADAAG and Title 24 (2002) require that one out of every eight spaces be van

13 accessible, defined as an accessible space adjacent to a 96-inch-wide access aisle.

14 ADAAG § 4.1.2(5)(b); Cal. Code Regs., tit. 24 (2002) § 1129B.3.2. Because the parking lot

15 at Taco Bell 4518 was restriped in 2003 and 2004, the alterations provisions of both laws

16 required that TBC bring the parking lot into compliance with the ADAAG and Title 24.

17

The Special Master measured the access aisle at 60 inches in 2005. The parties

18 have stipulated that the ADAAG tolerance for the width of the access aisle is 94 inches,

19 and TBC stated in interrogatory responses that the same tolerance applies under Title 24.

20 The access aisle is thus out of compliance with the ADAAG and Title 24 (2002).

21

TBC argues that restriping is not an alteration sufficient to invoke the requirement

22 that it provide a van accessible space with required access aisle. However, the Special

23 Master testified that each time the parking lot was restriped constituted an alteration and

24 TBC was thus required to comply with the ADAAG and Title 24 (2002). In addition, the

25 Department of Justice has provided specific technical assistance stating that, “[i]f you

26 restripe the parking area, you must restripe so that you provide the correct number of

27 accessible parking spaces, including van accessible parking.” Design Details,

28 http://www.ada.gov/adata1.pdf at 17. Because van accessible parking is defined as a

28

United States District Court For the Northern District of California

1 parking space with a 96-inch access aisle, ADAAG § 4.1.2(5)(b), TBC was required to

2 provide such an aisle.

3

TBC also relies on Title 24(2002) § 1134B.2.1, Exception 4, which excepts from the

4 alterations requirement “cosmetic work that does not affect items regulated by this code,

5 such as painting.” However, parking striping is an “item regulated by” Title 24, and thus

6 cannot be considered merely cosmetic.

7

Because the parking lot was restriped in 2003 and 2004, and because the Special

8 Master found that the access aisle at the single van accessible parking space was 60

9 inches wide in 2005, the van accessible parking access aisle was in violation of the ADA

10 and state access laws.

11

2. Van accessible parking signage

12

Both the ADAAG and Title 24 (2002) require signage identifying van accessible

13 parking spaces. ADAAG § 4.6.4; Cal. Code Regs, tit. 24 (2002) § 1129B.4. Although there

14 was a van accessible sign in place at Taco Bell 4518 when it was surveyed by the Special

15 Master in 2005, a sign was not installed when the original 60-inch aisle was restriped to

16 create a compliant van accessible space in 2007. It appears that no sign was installed until

17 the summer of 2009.

18

TBC was required to maintain access and failed to do so by removing the van

19 accessible sign. In addition, because TBC altered the van accessible signage by removing

20 it after 2002, it was required by the ADAAG and 2002 version of Title 24 to reinstall

21 compliant signage. The fact that it did not do so until 2009 was a violation of the ADA and

22 state access laws.

23

3. North entry door force

24

Title 24 places a limit on the amount of force required to open an exterior door. In

25 1989, the maximum door force was 8 1/2 pounds. Cal. Code Regs, tit. 24 (1989)

26 § 3304(i.2)(1). The Special Master found in 2005 that the force required to open the north

27 entry double door at Taco Bell 4518 was 10 pounds on the left, and 7 1/2 pounds on the

28 right.

29

United States District Court For the Northern District of California

1

In the August 2007 summary judgment order, the court applied a one-pound

2 tolerance and concluded that the door at Taco Bell 4518 was non-compliant. The court

3 also held, however, that with respect to restaurants built before 1994, only the “primary

4 entrance” was required to comply. TBC has since stipulated that the door in line 209 of the

5 Special Master’s survey for restaurant 4518 is the “primary entrance.” Based on the above,

6 the court finds that the north entry door was out of compliance with the new construction

7 standard in the 1989 version of Title 24.

8

TBC argues that it is difficult to adjust door force so that it is compliant. Although

9 the fact that the north entry door was out of compliance with the 1989 standard was

10 resolved by the court in its August 2007 summary judgment decision, it is also true that the

11 fact that it is difficult to comply with a law does not make it legal to violate it. TBC’s expert

12 testified at trial that, if the door pressure standard were difficult to meet, TBC had the option

13 of installing an automatic door opener, an option he has “suggested . . . many times,” and

14 the applicable 1989 version of Title 24 states that “[c]ompensating devices or automatic

15 door operators may be utilized to meet the above standards.” Cal. Code Regs, tit. 24

16 (1989) § 3304(i.2)(l).

17

TBC argues that equivalent facilitation is established by the fact that the right door of

18 the two-door entry complied with the 1989 Standard. The court finds, however, that

19 because the right door leaf did not comply with the applicable door timing standard, the

20 door as a whole was noncompliant. It would be unreasonable to require a wheelchair-

21 bound patron who encounters a door too heavy to open to try the adjacent door rather than

22 assume that it too would likely be noncompliant.

23

4. North entry door closing time.

24

The ADAAG and Title 24 (since 2002) require that doors take at least three seconds

25 to close. ADAAG § 4.13.10; Cal. Code Regs. tit. 24 (2002) §1133B.2.5.1. The door closing

26 time of the right-side door of the north entry was 2 seconds when measured by the Special

27 Master in 2005. TBC has stated in interrogatory responses that the tolerance on door

28 closing time should be 2.5 seconds.

30

United States District Court For the Northern District of California

1

The Special Master’s measurement of 2 seconds in 2005 shows that the north entry

2 door was out of compliance with the ADAAG. Because the ADAAG’s door closing standard

3 was not in effect when Taco Bell 4518 was built, plaintiffs rely on the ADA’s readily

4 achievable provision to argue that TBC should have replaced the door closer by 2001 – the

5 beginning of the class period – to achieve a compliant door closing time.

6

Plaintiffs have made a sufficient showing that replacing the door closers was readily

7 achievable in 2001. TBC contends that plaintiffs put on evidence only as to cost, and did

8 not address the other factors in 42 U.S.C. § 12181(9). However, plaintiff also presented

9 expert evidence of the impact on operations, and an expert analysis of the cost in light of

10 TBC’s profits at several different levels, from the individual store to the parent corporation.

11 This court finds this evidence sufficient, even under the more stringent Colorado Cross

12 standard, to shift the burden to TBC to demonstrate that it was not readily achievable to

13 replace the door closers.

14

TBC made no effort to satisfy its burden. Plaintiffs’ evidence concerning costs,

15 finances, and impact on operations was unrebutted. The court holds that it was readily

16 achievable in 2001 to replace the north entry door closers. As a result, the right leaf of the

17 door was in violation of applicable standards in 2005.

18

TBC installed new door closers on the north entry doors in 2007. The door closing

19 time would subsequently have had to comply with the ADAAG and 2002 Title 24 standards

20 requiring a minimum of 3 seconds. However, when Taco Bell 4518 was surveyed by Mr.

21 McSwain in 2008, the door closing times for the leaves of the north entry door were 2.5

22 seconds and 2.75 seconds. This does not comply with Title 24 or the ADAAG.

23

Although Mr. McSwain’s measurements are within the tolerance stated in TBC’s

24 interrogatory, plaintiffs assert that these measurements are out of compliance. Despite

25 having the burden to do so, TBC did not put on expert testimony concerning the

26 appropriate tolerances for door closing time.

27

Mr. Terry testified that construction tolerances would not apply to door closing

28 speed, as it is adjustable and thus required to be maintained to be accessible. TBC did

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United States District Court For the Northern District of California

1 not rebut this testimony.

2

Because allowable tolerances must be based on “conventional building industry

3 tolerances for field conditions,” ADAAG § 3.2; Cal. Code Regs., tit. 24 (2002) § 1101B.4,

4 TBC’s general references to the effect of wind and ventilation, or the difficulty of

5 compliance, are insufficient to meet its burden of proof. Moreover, as wind and ventilation

6 would affect any building’s exterior door, those factors cannot serve as an excuse for

7 noncompliance.

8

Based on the above, the court holds that the door closing times were in violation of

9 applicable standards.

10

5. Queue line

11

The court has already held that the queue line at Taco Bell 4518 violated the

12 new construction provisions of Title 24. In granting summary judgment on this issue, the

13 court held that TBC – relying on Mr. Blackseth’s declaration – had raised a triable issue of

14 fact as to whether the separate auxiliary access was discriminatory. This question is

15 addressed below, in the discussion of TBC’s defense of equivalent facilitation.

16

6. Reach range for drink lid dispenser

17

Both Title 24 and the ADAAG govern the location of objects that wheelchair users

18 must be able to reach from their wheelchairs. If the individual is able to pull up immediately

19 next to the object, he can reach higher than if he is required to reach laterally over an

20 obstruction.

21

In 2005, the Special Master established that the reach range to the drink lids at Taco

22 Bell 4518 was over an obstruction, but required a reach up of 52 inches and a lateral reach

23 of 28 1/4 inches. As noted below, the ADA applies only to equipment that is fixed or built

24 into the structure of the facility. However, because the 1989 version of Title 24 limits

25 reaches over obstructions to 46 inches in height and 24 inches laterally, Cal. Code Regs.

26 tit. 24 (1989) § 522(c) & Fig. 5-5D, the reach to the drink lids was out of compliance.

27

TBC has stated in interrogatory responses that, at a height of 52 inches, the

28 tolerance on the maximum lateral reach over an obstruction should be 15 inches, and on

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United States District Court For the Northern District of California

1 the maximum lateral reach overall should be 25 inches. TBC argues that the 1989 version

2 of Title 24 did not govern the height of the object over which one is reaching. See Cal.

3 Code Regs., tit. 24 (1989) Fig. 5-5D. While true, this does not render the drink lid location

4 as compliant. That same figure set limits on the height and lateral reach, and the

5 placement of the lids did not comply with these standards.

6

7. Knee and toe clearance at accessible tables3

7

The ADAAG provides minimum dimensions for the clearance under an accessible

8 dining table so that the legs and toes of a person in a wheelchair can fit under the table.

9 Among other things, the knee space is required to be 19 inches deep from the front of

10 the table. ADAAG § 4.32.3.

11

The knee clearance at two designated accessible tables was 10 1/2 to 11 inches

12 when measured by the Special Master in 2005. Because the ADAAG’s knee clearance

13 standard was not in effect when Taco Bell 4518 was built, plaintiffs rely on the ADA’s

14 readily-achievable provision to argue that TBC should have replaced the two table bases by

15 2001 – the beginning of the class period – to achieve a compliant knee clearance.

16

The parties stipulated to a tolerance for the depth of the knee clearance under

17 dining tables – 18 inches – but this applies only to new construction and alterations under

18 the ADAAG, while plaintiffs here apply the ADAAG under the readily-achievable provision.

19 TBC did not provide evidence of an appropriate tolerance for the depth of knee clearance

20 under the readily achievable provision. Plaintiffs’ expert Mr. Terry testified that no

21 construction tolerance applies to knee clearance depth. TBC did not rebut this testimony.

22

Plaintiffs made a sufficient showing that replacing two table bases was readily

23 achievable in 2001. Again, TBC argues that plaintiffs put on only evidence as to cost, and

24 did not address the other factors in § 12181(9). The court notes, however, that plaintiffs

25 also put on expert evidence of the impact on operations, and an expert analysis of the cost

26 in light of TBC’s profits at several different levels, from the individual store to the parent

27

28

3 The court has already ruled that Taco Bell 4518 did not have a sufficient number of accessible dining tables for the number of seats in the restaurant.

33

United States District Court For the Northern District of California

1 corporation. This court finds that this evidence is sufficient, even under the more stringent

2 Colorado Cross standard, to shift the burden to TBC to demonstrate that it was not readily

3 achievable to replace the table bases.

4

TBC made no effort to satisfy its burden. Plaintiffs’ evidence concerning costs,

5 finances and impact on operations was unrebutted. The court finds that it was readily

6 achievable in 2001 to replace the bases of two designated accessible tables.

7

8. Maneuvering clearance at women’s restroom door

8

The ADAAG and the 2002 version of Title 24 require maneuvering clearances on

9 either side of a door. A push door that has a closer and a latch must have an additional

10 space of 12 inches to the side of the door with the latch hardware, providing space for the

11 wheelchair-user’s feet as he or she reaches for the door handle. Cal. Code Regs. tit. 24

12 (2002) § 1133B.2.4.2 & Fig. 11B-26A(a); ADAAG § 4.13.6 & Fig. 25(a). TBC has stated in

13 interrogatory responses that the tolerance for this requirement should permit a minimum of

14 8 inches.

15

According to the Special Master’s survey, the women’s restroom door had a closer

16 and latch, but had a space of only 4 inches to the side of the door. All that was required to

17 bring the door into compliance was to remove the latch. Plaintiffs were not requesting that

18 TBC reconfigure the door to add eight inches to the latch side, and the Special Master

19 testified that replacing the latch remedied plaintiffs’ concerns with the women’s restroom

20 door maneuvering clearance.

21

Because the restroom doors were replaced in 2003, the new doors were required to

22 comply with the 2002 version of Title 24, which would have required that the new door not

23 have a latch. The Special Master testified that if the restroom doors were replaced in 2003,

24 the 2002 version of Title 24 and the ADAAG would have applied during the Special Master

25 survey in 2005. Thus, when the Special Master survey recorded the door as having a latch

26 and closer with only 4 inches of maneuvering clearance in 2005, it was out of compliance.

27

9. Height and position of water closet in women’s restroom

28

The version of Title 24 in effect when Taco Bell 4518 was built required that the

34

United States District Court For the Northern District of California

1 water closet seat be between 17 and 19 inches in height. Cal. Code Regs tit. 24 (1989)

2 § 1502. TBC has stated in interrogatory responses that the proper tolerance for this

3 requirement would permit a range of 16 to 20 inches. According to the Special Master’s

4 survey, the water closet seat in the women’s restroom was 15 1/2 inches high. As such,

5 the dimensions measured by the Special Master violated the new construction standards of

6 Title 24 applicable when Taco Bell 4518 was built.

7

The ADAAG and the 2002 version of Title 24 require that the centerline of the water

8 closet be 18 inches from the near wall. ADAAG § 4.16.2 & Fig. 28; Cal. Code Regs. tit. 24

9 (2002) § 1115B.7.2. According to the Special Master’s survey, the centerline of the water

10 closet in the women’s restroom was 20 inches from the near wall. The parties have

11 stipulated that the ADAAG tolerance for the position of centerline of the water closet is 16

12 to 19 inches.

13

Because the women’s restroom water closet was replaced in 2003, the new water

14 closet was required to comply with the ADAAG and 2002 version of Title 24, which required

15 that the centerline be 18 inches from the near wall. The Special Master testified that if

16 water closet in women’s restroom was replaced in 2003, the 2002 version of Title 24 and

17 the ADAAG would have applied during the Special Master survey in 2005. Thus, when the

18 Special Master survey recorded the centerline measurement as 20 inches in 2005, it was

19 out of compliance.

20

10. Clear floor space at water closet

21

The version of Title 24 in effect when Taco Bell 4518 was built required TBC to

22 provide a “clear space” of 32 inches to the side of the water closet, and 48 inches in front of

23 the water closet. Cal. Code Regs tit. 24 (1989) § 511.1(a)(8). In both the men’s and

24 women’s restroom, the clear space at the water closet complies with the applicable

25 standards as an architectural matter. When surveyed by the Special Master, however,

26 these required clear spaces were obstructed by moveable trash cans. Furthermore,

27 despite the fact that Alianza reported that it removed the movable trash can from the

28 women’s restroom in 2007, the trash can had been returned to the precise place observed

35

United States District Court For the Northern District of California

1 by the Special Master when it was surveyed by plaintiffs’ expert in March, 2008, and again

2 in photographs from TBC on two occasions in 2009.

3

TBC does not dispute that there were moveable trash cans in the required clear

4 space; rather, it argues that this does not constitute a violation because the ADAAG does

5 not apply to moveable objects and therefore permits a moveable trash can in the required

6 clear floor space. However, plaintiffs do not rely on the ADAAG to support their claim

7 regarding this element. TBC has not provided any evidence or citations to the effect that

8 Title 24 would permit obstructions in required “clear space.” Indeed, TBC’s expert

9 concedes that a removable trash can “could be a barrier” . . . “depend[ing] upon how big

10 the trash can is or where it’s placed.”

11

In addition, with regard to whether the ADAAG permits moveable trash cans to

12 obstruct required clear floor space, the court notes that DOJ regulations implementing Title

13 III require that a public accommodation “maintain in operable working condition those

14 features of facilities and equipment that are required to be readily accessible to and usable

15 by persons with disabilities.” 28 C.F.R. § 36.211(a).

16

In the DOJ’s interpretation – which is entitled to deference – this regulation

17 recognizes that it is not sufficient to provide features such as accessible routes, elevators,

18 or ramps, if those features are not maintained in a manner that enables individuals with

19 disabilities to use them. See Guidance on ADA Regulation on Nondiscrimination on the

20 Basis of Disability by Public Accommodations and in Commercial Facilities. originally

21 published on July 26, 1991, 28 C.F.R. Pt. 36, App. C (Mar. 15, 2011). While isolated or

22 temporary obstructions are not prohibited, allowing obstructions to persist or “[f]ailure . . . to

23 ensure that accessible routes are properly maintained and free of obstructions . . . would

24 also violate this part.” Id. The 2002 version of Title 24 contained language similar to 28

25 C.F.R. § 36.211(a). See Cal. Code Regs. tit. 24 (2002) § 1101B.3.1.

26

And while it is true that the Access Board drafted the ADAAG to apply to fixed

27 elements, see Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d

28 707, 712 (D. Colo. 2004), the ADAAG also clearly governs – and requires – clear floor

36

United States District Court For the Northern District of California

1 space in restrooms. See, e.g., ADAAG § 4.22.3. “Clear floor space” is defined by the

2 ADAAG as “[t]he minimum unobstructed floor or ground space required to accommodate a

3 single, stationary wheelchair and occupant.” Id. § 3.5.

4

TBC’s expert Kim Blackseth conceded that a moveable trash can could be a barrier,

5 but testified that he believed that TBC’s trash cans were not barriers because they were

6 lightweight, and he could move them with his feet. However, TBC provided no evidence

7 that class members with other disabilities or types of wheelchairs attempted this task.

8

TBC later argued that because the plaintiffs use motorized scooters or wheelchairs,

9 they can reasonably be expected to use the force of their motorized vehicles to move

10 lighter-weight obstructions out of the way. However, TBC provided no evidence to support

11 this claim, nor any evidence, for example, that an amputee would be able to move the trash

12 can without feet, or even that a quadriplegic like Mr. Blackseth who had a foot injury would

13 be able or inclined to do so. This evidence is insufficient to require a finding that

14 obstructions are permitted in space that is required to be “clear.”

15

11. Height of soap dispensers and toilet seat cover dispensers

16

At the time that Taco Bell 4518 was constructed, Title 24 required that dispensers in

17 restrooms be mounted no higher than 40 inches above the floor. Cal. Code Regs tit. 24

18 (1989) § 511.1(b)(2). TBC has agreed that a 2-inch tolerance would be appropriate. The

19 Special Master’s survey showed that both the soap dispenser and the toilet seat cover

20 dispenser in both the men’s and women’s restrooms were higher than 42 inches.

21

TBC argues that the ADAAG’s height limitations, which are higher than those in Title

22 24, provide equivalent facilitation. This argument is addressed below in the context of the

23 discussion of the equivalent facilitation defense.

24

12. Lavatory insulation

25

Title 24 required, when Taco Bell 4518 was built, that the hot water and drain

26 pipes under the lavatory be insulated. Cal. Code Regs tit. 24 (1989) § 1504(b). Although

27 Alianza wrapped the drain pipes and hot water supply line in the men’s restroom in 2007,

28 the insulation was missing from the men’s restroom when the restaurant was surveyed by

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United States District Court For the Northern District of California

1 plaintiffs’ experts in March 2008. It was also missing when TBC took photographs in the

2 summer of 2009 and in the August-October 2009 period.

3

TBC claims that because the City of San Pablo inspected and approved the design

4 of the lavatory, it “had to have had insulation” at the time of construction. TBC asserts that

5 the above-described violations were isolated incidents, but the court finds it not credible

6 that plaintiffs’ expert and TBC’s representatives should have photographed the drain pipe

7 and hot water supply line on the only three days during the period from 2007 to 2009 when

8 there was no insulation. The court finds that the conditions observed by Mr. McSwain and

9 portrayed in TBC’s photos constitute a violation of Title 24.

10 D. Entitlement to Injunctive Relief

11

To be entitled to an injunction, plaintiffs must show that TBC has violated the

12 ADAAG or Title 24. See 42 U.S.C. § 12188(a)(2) (“In the case of violations of [the

13 accessibility provisions] of this title, injunctive relief shall include an order to alter facilities to

14 make such facilities readily accessible to and usable by individuals with disabilities” and,

15 “[w]here appropriate, injunctive relief shall also include requiring a provision of an auxiliary

16 aid or service [or] modification of a policy . . . “); Cafe Royale, 218 Cal. App. 3d at 183

17 (plaintiffs may file suit for injunctive relief under the CDPA to enforce compliance with the

18 standards).

19

Plaintiffs are not required to show other prerequisites generally required for

20 injunctive relief, as “‘[t]he standard requirements for equitable relief need not be satisfied

21 when an injunction is sought to prevent the violation of a federal statute which specifically

22 provides for injunctive relief.’” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165,

23 1175-76 (9th Cir. 2010), cert. denied, 131 S.Ct. 2113 (Apr. 18, 2011).

24

As set forth above, and in this court’s August 2007 order re plaintiffs’ motion for

25 partial summary judgment, plaintiffs have established that TBC has engaged in numerous

26 violations of state and federal accessibility requirements. At present, it is undisputed that

27 TBC has remediated all barriers at Taco Bell 4518. At trial, Special Master Bob Evans

28 testified that he found no federal or state access violations during his June 3, 2011 site

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United States District Court For the Northern District of California

1 inspection of Taco Bell 4518. Based on this, TBC argues that plaintiffs’ claims for injunctive

2 relief are moot.

3

However, as discussed below, because TBC has not met its burden under the

4 voluntary cessation doctrine, an injunction shall enter, and the only remaining question is

5 the scope of the injunctive relief. “The scope of injunctive relief is dictated by the extent of

6 the violation established. The key question . . . is whether the inadequacy complained of is

7 in fact widespread enough to justify system wide relief.” Armstrong, 275 F.3d at 870

8 (quotation and citation omitted).

9

A court need not address every violation in order to conclude that violations are

10 sufficiently widespread to necessitate a system wide injunction. Rather, a court can enter

11 such an injunction based on evidence that is “symptomatic” of the defendant’s violations,

12 including “individual items of evidence [that are] representative of larger conditions or

13 problems.” Id. at 871. Finally, while the scope of relief must correspond to the injury

14 suffered, in a certified class action, the injury, and the corresponding relief, extends to the

15 class as a whole. Id.

16 E. TBC’s Defenses

17

1. Voluntary cessation doctrine.

18

TBC argues that because it has removed or remediated all barriers in Taco Bell

19 4518, and because it has issued new accessibility policies (and plaintiffs have not

20 requested that any specific changes be made to those policies) plaintiffs’ claim for

21 injunctive relief is moot.

22

“A case is moot when the issues presented are no longer ‘live’ or the parties lack a

23 legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287

24 (2000).

25

Mootness can be characterized as the doctrine of standing set in a time

frame: The requisite personal interest that must exist at the commencement

26

of the litigation (standing) must continue throughout its existence (mootness).

Mootness is a jurisdictional issue, and federal courts have no jurisdiction to

27

hear a case that is moot, that is, where no actual or live controversy exists. If

there is no longer a possibility that an appellant can obtain relief for his claim,

28

that claim is moot and must be dismissed for lack of jurisdiction.

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United States District Court For the Northern District of California

1 Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (citations and quotations omitted).

2

Thus, the central inquiry in any mootness challenge is whether changes in the

3 circumstances existing when the action was filed have forestalled any meaningful relief.

4 “[T]he question is not whether the precise relief sought at the time an application for

5 injunctive relief was filed is still available. The question is whether there can be any

6 effective relief.” West v. Secretary of Dep’t. of Transportation, 206 F.3d 920, 925 (9th Cir.

7 2000); see also San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th

8 Cir. 2002). So long as the court can grant some effective relief, it does not matter that the

9 relief originally sought is unavailable due to changed circumstances. See Church of

10 Scientology of Calif. v. United States, 506 U.S. 9, 12-13 (1992).

11

Here, in effect, TBC asserts that by removing or remediating the barriers at Taco

12 Bell 4518, it has voluntarily ceased the challenged conduct. A request for prospective

13 injunctive relief will be mooted by a defendant’s voluntary compliance only if the defendant

14 meets the “formidable burden” of demonstrating that it is “absolutely clear the alleged

15 wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528

16 U.S. at 190; see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 221 (2000);

17 Rosemere Neighborhood Ass’n v. U.S. Envtl. Protection Agency, 581 F.3d 1169, 1173 (9th

18 Cir. 2009). That is, TBC has the “‘heavy burden of persua[ding]’ the court that the

19 challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth,

20 528 U.S. at 189 (citation omitted); see also Adarand, 528 U.S. at 222. Plaintiffs assert that

21 in this case, TBC fails to meet this burden.

22

The court agrees, and finds that a number of factors demonstrate that TBC has not

23 met its burden under the voluntary cessation doctrine. The evidence presented at trial

24 demonstrates that TBC is not currently following its own access policies, and has a history

25 of not doing so; that TBC’s policies are vague and contradictory; and that TBC could

26 rescind the policies at any time.

27

First, TBC is not currently following its own access policies, and has a history of not

28 doing so. A defendant’s “ongoing history of not following its own stated . . . procedures

40

United States District Court For the Northern District of California

1 ma[kes] necessary” an injunction. United States v. Laerdal Mfg. Corp., 73 F.3d 852, 857

2 (9th Cir. 1995). Here this factor is particularly important because TBC bases its claim that

3 violations will not recur in the future on a number of accessibility policies that it adopted or

4 revised in 2010. The evidence shows, however, that TBC is not following those policies.

5

For example, although TBC claims to have had a policy since September 2010

6 whereby each day before a restaurant opens, a manager is supposed to conduct an

7 “Access for the Disabled” walk to check various accessibility items, the RGM for Taco Bell

8 4518 testified in his deposition that he had never heard of an access walk, and the

9 pre-opening walk had nothing to do with disability or access issues. Despite the fact that

10 the RGM was responsible for ensuring that the Access for the Disabled Walk was

11 performed, TBC did not call him as a witness at trial, or any other employee at Taco Bell

12 4518 who was involved in the process of opening the restaurant, or whose responsibilities

13 included conducting the preopening Access for the Disabled Walk.

14

Similarly, although TBC claims that accessibility issues are checked every 30

15 minutes to two hours during “Success Walks”, the RGM testified during his deposition that

16 these walks do not involve accessibility issues. While TBC claims that Maintenance

17 Technicians use a written checklist of 34 different accessibility items each time they visit a

18 restaurant, the Maintenance Technician for Taco Bell 4518 testified during his deposition

19 he had never seen the checklist and checked only six accessibility items at most.

20

Moreover, although TBC asserts that Maintco conducts access surveys of each

21 restaurant twice a year, and provides TBC with an invoice and a completed checklist for

22 each such survey, at trial, TBC submitted only two checklists for Taco Bell 4518 when there

23 should have been at least four completed during the relevant period, and the invoices

24 submitted by TBC indicated that there was a 14-month gap between Maintco surveys at

25 that restaurant.

26

TBC also has a history of not following its own access policies. For example,

27 photographs admitted at trial demonstrated that in the past five years, TBC had on multiple

28 occasions not followed its policy that accessible parking spaces have required signage, that

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United States District Court For the Northern District of California

1 trash cans in restrooms not block dispensers, and that pipes under lavatories in restrooms

2 be insulated.

3

Second, a voluntary cessation defense cannot be based on policies that are vague

4 or contradictory. See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991). Here, at

5 least some of TBC’s policies appear vague and contradictory. For example, TBC’s 2005

6 policy covered door closing time, but that element was omitted from its subsequent policies

7 up until 2010. TBC’s door force policy has changed numerous times over the years, and in

8 2010, there were three different door force standards set forth in TBC’s access documents.

9 As a result, it is impossible for the court to determine what TBC’s current door force policy

10 is, much less whether it complies with accessibility regulations.

11

In addition, although TBC’s Maintenance Technician Checklist and the Maintco

12 Checklist each identify specific accessibility items that are supposed to be inspected, both

13 of these checklists include a provision giving TBC the discretion to ignore violations of the

14 checklist based on unknown and unspecified criteria. Thus it is impossible to determine the

15 circumstances under which elements that do not comply with a particular checklist will

16 actually be fixed.

17

Third, TBC could change or rescind its policies at any time. Even if the court

18 assumes for the sake of argument that TBC’s accessibility policies are facially sufficient

19 and are being followed, the fact that TBC could change these policies – by, for example,

20 not renewing its year-to-year contract with Maintco, or not providing access training to new

21 maintenance technicians – means that TBC has not met its burden under the voluntary

22 cessation doctrine, particularly given the length of time required for TBC to remove or

23 remediate the barriers at Taco Bell 4518, and also given TBC’s history of vague and

24 contradictory policies. See, e.g., Feldman v. Pro Football, Inc., 419 Fed. Appx. 381, 2011

25 WL 1097549, at *5 (4th Cir., Mar. 25, 2011).

26

Finally, the evidence showed that a number of architectural elements in Taco Bell

27 restaurants are subject to frequent change. Jaime de Beers, a former TBC employee who

28 was Facility Leader for Northern California, with responsibility for 87 restaurants (including

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United States District Court For the Northern District of California

1 Taco Bell 4518), stated in an October 19, 2004 declaration subsequently admitted as an

2 exhibit at trial that certain elements at TBC restaurants are “subject to frequent change,”

3 including parking striping and signs, entrance door force and closing time, position of chain

4 blocking access in queue line, obstruction of route from door to queue line, self-service

5 dispensers, dining room tables and chairs, restroom soap dispensers, and insulation on

6 restroom lavatory pipes. And although Mr. Elmer testified at trial that certain elements at

7 Taco Bell 4518 are unlikely to change in the future, he also testified that Taco Bell 4518 is

8 slated to undergo a major interior and exterior remodeling in 2012.

9

Moreover, in its January 10, 2005 response to an interrogatory asking for an

10 identification of alterations and modifications that had occurred in its restaurants, TBC

11 objected on the grounds that the request was “unduly burdensome to answer due to the

12 number and frequent changes that could and do occur in every store that may affect or may

13 have affected accessibility during the class period.”

14

For all of these reasons, the court finds that TBC has failed to carry the “heavy

15 burden” of showing that violations of the ADA and Title 24 will not occur in the future at

16 Taco Bell 4518.

17

2. Building Department argument

18

The evidence at trial demonstrated that several elements at Taco Bell 4518 were in

19 violation of Title 24 regulations in effect when the restaurant was constructed. Based on

20 Bringle v. Board of Sup’rs of Orange County, 54 Cal. 2d 86, 89 (1960), TBC asks the court

21 to presume that an exception to Title 24’s requirements was granted by the City of San

22 Pablo Building Department, based on the fact that it approved the building plans for Taco

23 Bell 4518, and issued a certificate of occupancy.

24

This argument, and the Bringle case specifically, were discussed extensively in

25 this court’s August 8, 2007 order. See Moeller Summ. J., 2007 WL 2301778. As explained

26 in that order, building departments and other administrative agencies are “not

27 . . . lawmaking bod[ies] and ha[ve] no power to disregard or amend the ordinances which

28 define [their] authority.” Id., 2007 WL 2301778 at *17 (quoting City and County of San

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United States District Court For the Northern District of California

1 Francisco v. Board of Permit Appeals, 207 Cal. App. 3d 1099, 1109-10 (1989)). As a

2 result, “while an agency may have discretion, it must exercise that discretion within the

3 bounds set forth by the applicable law.” Id. In addition, under California law, “building

4 inspectors do not have discretion to issue building permits or certificates of occupancy for

5 facilities that do not comply with Title 24.” Id. at *18.

6

Thus, TBC must show either that the architectural elements at issue complied with

7 Title 24, or that a building inspector applied an exception to Title 24 that is allowed by a

8 statute or regulation. Id. Here, TBC has done neither. Instead, it asks this court to

9 presume pursuant to Bringle that the building inspector granted an exception.

10

The Bringle presumption, however, does not apply where, as here, an agency is

11 required to make written findings in order to grant an exception. Id. at *19 (citing

12 Broadway, Laguna, Vallejo Ass’n v. Bd. of Permit Appeals, 66 Cal. 2d 767, 773 (1967)

13 (“The presumption that an agency’s rulings rest upon the necessary findings and that such

14 findings are supported by substantial evidence . . . does not apply to agencies which must

15 expressly state their findings and must set forth the relevant supportive facts.”)). Thus TBC

16 was required to present written evidence that the building inspector applied an exception to

17 Title 24, which TBC failed to do.

18

In any event, TBC’s counsel agreed that any presumption arising from the building

19 department’s approval of building plans, and issuance of a certificate of occupancy, can be

20 rebutted by “by evidence that whatever it approved was not in compliance.” Here even

21 assuming a presumption of compliance arose, that presumption was rebutted by evidence

22 admitted at trial showing that architectural elements were not in compliance with Title 24.

23

3. Equivalent facilitation

24

TBC asserts that its “auxiliary access” provides equivalent facilitation for its narrow

25 queue line, that customer service provides equivalent facilitation for drink lids that are out of

26 reach range, and, with respect to exterior door force and the height of restroom amenities,

27 that a more lax or nonexistent ADAAG standard provides equivalent facilitation for a Title

28 24 standard.

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United States District Court For the Northern District of California

1

With respect to each of these elements, plaintiffs proceed under the new

2 construction standard of the 1989 version of Title 24. As such, TBC relies on the

3 equivalent facilitation provisions in that version of Title 24. In each case, equivalent

4 facilitation would be permitted only upon a written finding of unreasonable hardship by the

5 enforcing agency. No such finding is in evidence.

6

In support of its Title 24 equivalent facilitation argument, TBC points to § 406(g) of

7 the 1989 version. This is, however, only the definition of equivalent facilitation; it does not

8 state when a covered entity may use equivalent facilitation in lieu of compliance. In 1989,

9 there was no general equivalent facilitation provision. Rather, equivalent facilitation was

10 required if compliance was excused based on a written finding of unreasonable hardship, in

11 those specific provisions in which an unreasonable hardship exception was permitted. This

12 was the case with respect to queue lines, but the provisions governing door force, reach

13 range, and height of restroom amenities did not permit such deviation.

14

Throughout the trial, TBC reiterated that the placement of the seal of the City of San

15 Pablo on their building plans and the issuance of a certificate of occupancy meant that the

16 City must have approved the configuration of its queue line. The question of the authority

17 of the building department and the relevance of the certificate of occupancy in general are

18 addressed above.

19

The 1989 version of Title 24 contains specific provisions that would prevent any

20 inference that stamped building plans or a certificate of occupancy constituted an

21 endorsement of TBC’s auxiliary queue line access as equivalent facilitation.

22

As the court previously found in the August 8, 2007 order, the Title 24 regulations

23 that apply to queue lines in pre-1993 stores such as Taco Bell 4518 are § 611(d)(4), which

24 requires that “cafeteria lines” be a minimum of 36 inches wide, and § 712(b)(7)(A), which

25 requires that “circulation aisles” – defined as “circulation path between objects such as

26 seats, tables, merchandise equipment, displays, shelves, desks, etc.” – be 36 inches wide.

27 Sections 611(d) and 712(b) both also provide that “[i]n existing buildings, when the

28 enforcing agency determines that compliance with any regulation under this section would

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1 create an unreasonable hardship, an exception shall be granted when equivalent facilitation

2 is provided.” Moeller Summ. J., 2007 WL 2301778 at *8.

3

According to these exceptions, at the time it was constructed, Taco Bell 4518

4 would have been excused from compliance with the 36-inch requirement for queue lines

5 only if it were an existing facility which, by definition, it was not. Thus, under the applicable

6 standards, TBC is not entitled to use equivalent facilitation in lieu of compliance with the

7 36-inch minimums in §§ 611(d)(4) and 712(b)(7)(A).

8

Even if the exception were extended to apply to buildings (like Taco Bell 4518)

9 constructed after the 1989 version of Title 24 was in effect, TBC would have been excused

10 from compliance only if the enforcing agency had determined in writing that compliance

11 would create an unreasonable hardship. According to the definition of “unreasonable

12 hardship,” such condition “exists where the enforcing agency finds that compliance with the

13 building standard would make the specific work of the project affected by the building

14 standard unfeasible” based on an evaluation of five factors. Crucially, “[t]he details of any

15 finding of unreasonable hardship shall be recorded and entered in the files of the enforcing

16 agency.” Cal. Code Regs. tit. 24 (1989) § 422(c).

17

TBC has submitted no evidence of such a finding, nor even any evidence that

18 compliance with the 36-inch requirement would have made the specific work of the project

19 affected by the building standard unfeasible. Indeed, it is hard to imagine how it would have

20 been unfeasible to construct the queue line to be compliant or simply to have eliminated it

21 altogether, as TBC eventually did.

22

Based on the provisions on which it relies – the equivalent facilitation provisions

23 of the 1989 Title 24 – TBC is not excused from compliance with the 36-inch minimums in

24 §§ 611(d)(4) and 712(b)(7)(A).

25

The separate auxiliary access would not in any event have constituted “equivalent

26 facilitation” under the definition relied on by TBC. TBC cites to the definition in section

27 406(g) of the 1989 version of Title 24. That provision requires that “[i]n determining

28 equivalent facilitation, consideration shall be given to means that provide for the maximum

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1 independence of persons with physical disabilities.” Cal. Code Regs tit. 24 (1989) § 406(g)

2 (note 2).

3

The narrow queue line and auxiliary access did not provide persons who use

4 wheelchairs or scooters with “maximum independence.” To the contrary, such persons

5 were forced to depend on staff, family, friends and total strangers to line up, keep their

6 place in line, order their food, and/or retrieve it. Although reach ranges to drink lids are not

7 eligible for an unreasonable hardship/equivalent facilitation exception, it is also clear that

8 TBC’s proposed equivalent facilitation – that customers with disabilities rely on staff

9 assistance to retrieve out-of-reach items – would not comply with note 2 of § 406(g).

10

Nor did the narrow queue line and auxiliary access provide persons who use

11 wheelchairs or scooters with access that was “equivalent” to an accessible queue line. The

12 testimony of customer witnesses shows that such auxiliary access segregated persons with

13 wheelchairs or scooters, made them feel different than other customers, and made them

14 feel like they were cutting in line. Customer witnesses testified that they would have

15 preferred an accessible queue line.

16

As noted above, there was no provision for unreasonable hardship or equivalent

17 facilitation in the sections governing door force, Cal. Code Regs. tit. 24 (1989) § 3304

18 (i.2)(1), reach range to drink lids, id. § 522(c) & Fig. 5-5D, or height of restroom amenities,

19 id. § 511.1(b)(2). TBC provides no evidence that it was not feasible to adjust the door

20 force, place the drink lids or install the soap or toilet seat cover dispensers so that the

21 positioning was compliant.

22

TBC also relies on the ADAAG’s equivalent facilitation provision. That provision, like

23 the provision in Title 24, would not permit TBC’s auxiliary access in lieu of a compliant

24 queue line. The ADAAG provide that “[d]epartures from particular technical and scoping

25 requirements . . . by the use of other designs and technologies are permitted where the

26 alternative designs and technologies used will provide substantially equivalent or greater

27 access to and usability of the facility.” ADAAG § 2.2; see also Cal. Code Regs tit. 24 (2010)

28 § 1101B.1.2 (same).

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United States District Court For the Northern District of California

1

In enacting the ADA, Congress indicated that an “equivalent facilitation” provision

2 would be appropriate because “[a]llowing these departures will provide public

3 accommodations and commercial facilities with necessary flexibility to design for special

4 circumstances and will facilitate the application of new technologies.” H. Rep. 101-485, pt.

5 2, at 119, reprinted in 1990 U.S.C.C.A.N. 303, 402. Title 24 provides that “[i]n determining

6 equivalent facilitation, consideration shall be given to means that provide for the maximum

7 independence of persons with disabilities . . .” Cal. Code Regs tit. 24 (2010) § 1101B.1.3.

8

This court previously held that “there are only two requirements for an equivalent

9 facilitation: 1) it is an alternative design or technology; and 2) it provides equal or greater

10 access to subject facilities.” Moeller v. Taco Bell Corp., 2005 WL 1910925, at *3

11 (N.D. Cal. Aug. 10, 2005). Indeed, “the ‘Equivalent Facilitation’ provision does not allow

12 facilities to deny access under certain circumstances, but instead allows facilities to bypass

13 the technical requirements laid out in the [Accessibility] Standards when alternative designs

14 will provide ‘equivalent or greater access to and usability of the facility.’” Id., 2005 WL

15 1910925 at *3 n.1 (quotations and citation omitted).

16

The Ninth Circuit recently addressed the question of what constitutes equivalent

17 facilitation under ADAAG § 2.2 in the restaurant context. In Antoninetti, the defendant fast

18 food restaurant prepared customers’ meals behind a 45-inch-high wall topped with a

19 transparent plastic shield. Customers who did not use wheelchairs could observe the

20 preparation of their meals and were able to interact with staff concerning ingredients,

21 portion size, and the like. Id., 643 F.3d at 1169. Because the height of the counter was out

22 of compliance with the ADAAG, it obstructed the view of customers who used wheelchairs

23 who were, in turn, unable to observe and interact in the same way nondisabled customers

24 could. Id. at 1170.

25

The defendant argued that its customer service policy provided equivalent

26 facilitation, thereby excusing the noncompliance of the 45-inch-high wall. Id. at 1170-71.

27 The court rejected this argument, holding that the policies did not constitute “equivalent

28 facilitation” because they did not involve “use of other designs and technologies” or

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1 “provide [him with] substantially equivalent or greater access to and usability of the facility.”

2 They merely provide a substitute experience that lacks the customer’s personal

3 participation in the selection and preparation of the food that the full “Chipotle experience”

4 furnishes. Id. at 1173-74. This language makes clear in the absence of “substantially

5 equivalent or greater access to or usability of the facility,” no policy or design can constitute

6 equivalent facilitation.

7

TBC’s separate auxiliary access fails this standard. TBC argues that it provides

8 equivalent facilitation for its narrow queue line because customers who use wheelchairs

9 can line up off to the side of the queue. However, the customer witnesses who testified at

10 trial experienced the auxiliary access as inconvenient, cumbersome, and embarrassing, as

11 it required them to rely on others to place their orders.

12

The only evidence TBC offered concerning its queue line practice was the testimony

13 of a single assistant manager that it was TBC’s policy to take down the chain for customers

14 in wheelchairs and that team members were trained to do this. On cross-examination,

15 however, this same witness testified that she had received no training instructing her to

16 take down the chain for customers in wheelchairs, or that this was TBC’s policy. In

17 addition, customer witnesses testified that TBC staff never offered to assist them or

18 explained how to use the auxiliary access, and Jacques Bronson testified that a TBC

19 employee told him that his mother could not line up at the chain nor could she go around to

20 the far side of the queue.

21

TBC never introduced evidence of a written policy addressing how customers

22 using wheelchairs were supposed to use the auxiliary access or how staff were supposed

23 to handle this situation. There was no evidence indicating that there was signage offering

24 assistance to customers with disabilities in place in Taco Bell 4518 before 2009. The 2005

25 photograph by the Special Master shows no sign; nor do the 2008 photographs by

26 plaintiffs’ experts show any sign (although a TBC photograph from the summer of 2009

27 does show a sign stating, “Please Ask If You Need Assistance”).

28

Thus, during the portion of the class period when the queue line was in place

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1 in Taco Bell 4518 – from December 2001 to Spring 2007 – there was nothing to indicate to

2 customers in wheelchairs what they were supposed to do when confronted by a queue line

3 in which other customers were lined up, but that was clearly too narrow for them to

4 navigate, and no sign explaining that the area that was often blocked off by a chain was

5 supposed to serve as auxiliary access.

6

TBC introduced no lay witness testimony from customers who use wheelchairs

7 that they understood or endorsed the separate auxiliary access. It offered only the

8 personal experience of its retained expert Mr. Blackseth – who uses a wheelchair – that he

9 was directed by TBC staff to use the auxiliary access and that he personally did not feel

10 discriminated against. Mr. Blackseth also testified, however, that he “would have preferred”

11 that there be no queue lines, and that “if you are going to put them in, obviously I would

12 advise my client to put one in that was compliant.” Although auxiliary access worked for

13 him, he testified that it “wouldn’t have been the one that I would have chosen” and that “it

14 wouldn’t have been what I recommended.”

15

Furthermore, although Mr. Blackseth testified that he personally did not object to the

16 auxiliary access, both he and TBC’s director of ADA compliance, testified that they rely on

17 the DOJ’s interpretation of Title III. Mr. Blackseth agreed that “the [DOJ] provides the

18 interpretive direction for Title III,” and that he would give “great weight” to the DOJ’s

19 position on the requirements of Title III. Similarly, Mr. Elmer testified, in response to a

20 question about a meeting with the DOJ concerning queue lines, that “the views of the

21 Department of Justice were important to Taco Bell.”

22

Moreover, Mr. Blackseth’s testimony concerning his experience at Taco Bell 4518

23 was not entirely consistent. At trial, he testified that he had been to Taco Bell 4518 “10 to

24 30 times.” However, in his deposition, he testified that he had been to a Taco Bell with a

25 queue line only three to five times over the years, and that he was offered the option of

26 lining up at the side of the queue line “at least once, maybe twice.”

27

Based on the evidence above, the court finds that where TBC’s queue line is

28 narrower than required by applicable standards, auxiliary access whereby customers with

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United States District Court For the Northern District of California

1 disabilities must line up to the side of the queue line does not provide substantially

2 equivalent or greater access to or usability of the Taco Bell restaurant and does not provide

3 for the maximum independence of persons with physical disabilities.

4

The auxiliary access also violates the ADA’s integration mandate. Title III requires

5 public accommodations to provide “[g]oods, services, facilities, privileges, advantages, and

6 accommodations . . . in the most integrated setting appropriate. . . ,” 42 U.S.C.

7 § 12182(b)(1)(B) (emphasis added), and prohibits places of public accommodation from

8 providing people with disabilities with services, facilities, privileges, advantages, or

9 accommodations that are not equal to, or are different or separate from those provided to

10 other individuals, id. § 12182(b)(1)(A)(ii) & (iii). “Providing services in the most integrated

11 setting is a fundamental principle of the ADA.” H.R. Rep. 101-485, pt. 2, at 102 (1990),

12 reprinted in 1990 U.S.C.C.A.N. 303, 385.

13

Finally, TBC argues that the Special Master found the auxiliary access to be

14 compliant. There is no evidence that the Special Master did anything other than measure

15 the width of the opening. The court previously ruled that equivalent facilitation was beyond

16 the scope of the Special Master order, which specifically reserved to the parties and the

17 court the question whether any given configuration complies with the ADA or state law.

18

With respect to door force and the height of restroom amenities, TBC makes the

19 additional argument that a more lax or nonexistent ADAAG standard provides equivalent

20 facilitation for a Title 24 standard. It argues that the complete lack of an ADAAG standard

21 governing exterior door force is equivalent facilitation for compliance with Title 24’s exterior

22 door force requirement, and that its 54-inch reach range limit is equivalent facilitation for

23 compliance with Title 24’s 40-inch limit on restroom amenities.

24

This interpretation of the equivalent facilitation defense finds no support in the law.

25 “Where California access standards provide greater accessibility than the ADA, the

26 California standards control.” Shimozono v. May Dep’t Stores Co., 2002 WL 34373490, at

27 *16 (C.D. Cal. Nov. 20, 2002); Lieber v. Macy’s West, Inc., 80 F. Supp. 2d 1065, 1074

28 (N.D. Cal. Oct. 28, 1999) (same). Indeed, the ADA specifically states that it is not to be

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1 “construed to invalidate or limit the remedies, rights, and procedures of any . . . law of any

2 State . . . that provides greater or equal protection for the rights of individuals with

3 disabilities than are afforded by this chapter.” 42 U.S.C. § 12201(b).

4

CONCLUSION

5

The court previously held that almost 400 conditions in more than 160 Taco Bell

6 restaurants violated the applicable standards, and therefore violated the ADA and/or the

7 state access laws. See Moeller Summ. J., 2007 WL 2301778 at *12-15, 20-22. In addition,

8 the court finds that the evidence presented at trial establishes that TBC violated the ADA

9 and/or Title 24 at Taco Bell 4518, with regard to the 12 elements at issue, as follows:

10

•

TBC failed to provide an access aisle adjacent to the van-accessible parking

11 space that complied with the requirements of the ADAAG and Title 24 (2002);

12

•

TBC failed to install and/or maintain van accessible parking signage, in

13 violation of the ADAAG and Title 24 (2002);

14

•

TBC failed to maintain proper door entry force at the primary exterior door, in

15 violation of Title 24 (1989);

16

•

TBC failed to maintain the proper closing time at the north entry door, in

17 violation of the ADAAG and Title 24 (2002);

18

•

As previously determined by the court, the queue line at Taco Bell 4518

19 violated the new construction provisions of Title 24 (1989); in addition, TBC failed to

20 establish that its separate auxiliary access provided equivalent facilitation under either the

21 ADAAG or Title 24;

22

•

TBC failed to locate the drink lids at Taco Bell 4518 in compliance with the

23 limits set on height and lateral reach by Title 24 (1989);

24

•

The provision of adequate knee and toe clearance at the accessible tables,

25 while not subject to the ADAAG when Taco Bell 4518 was constructed, was nevertheless

26 readily achievable by TBC in 2001;

27

•

TBC failed to provide sufficient maneuvering clearance at the women’s

28 restroom door, and failed to provide compliant doors when the women’s restroom doors

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1 were replaced in 2003, in violation of the ADAAG and Title 24 (2002);

2

•

At the time the water closet in the women’s restroom was replaced in 2003,

3 TBC failed to locate the water closet so that it was compliant with the ADAAG and Title 24

4 (2002);

5

•

TBC failed to provide clear floor space at the water closet in both the men’s

6 and women’s restroom, in violation of the ADAAG;

7

•

At the time Taco Bell 4518 was constructed, TBC failed to locate the soap

8 dispensers and toilet seat cover dispensers at a height compliant with Title 24 (1989); in

9 addition, TBC failed to establish that its auxiliary access provided equivalent facilitation

10 under either the ADAAG or Title 24;

11

•

TBC failed to maintain insulation on the lavatory hot water and drain pipes in

12 the men’s restroom, in violation of Title 24 (1989).

13

The evidence shows that there were a significant number of violations at Taco Bell

14 4518 in 2005, and later, and that those barriers were in existence prior to the filing of the

15 lawsuit. Thus, plaintiffs have standing to proceed in this action. Defendants have not met

16 their burden of establishing any defense to the finding of liability.

17

The court finds further that plaintiffs have standing to seek injunctive relief,

18 notwithstanding that Taco Bell 4518 is currently a compliant accommodation, because they

19 have established an intent to return to Taco Bell 4518, and because they have sufficiently

20 demonstrated that the injury is likely to recur based on TBC’s pattern of past violations of

21 federal and state access laws.

22

Finally, based on the court’s prior findings in the August 8, 2007 order, and based on

23 the evidence presented at trial, including the testimony of TBC’s Director of ADA

24 Compliance, the court finds that plaintiffs have established that classwide injunctive relief is

25 warranted, with regard to maintaining compliance, both as to Taco Bell 4518, and as to all

26 corporate Taco Bell restaurants in California. However, given the pendency of TBC’s

27 motion to decertify both the liability and the damages classes, and because the court finds

28 the proposed injunction submitted by plaintiffs in June 2010 to be overly broad, the court is

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1 disinclined to approve that form of injunction.

2

Following the ruling on the parties’ motions regarding class certification, the court will

3 decide on the form of injunctive relief to be issued in this case.

4

5 Dated: October 5, 2011 6 7

______________________________ PHYLLIS J. HAMILTON United States District Judge

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 Case4:02-cv-05849-PJH Document646-1 Filed10/19/11 Page1 of 32

1 FOX & ROBERTSON, P.C.

Timothy P. Fox, Cal. Bar No. 157750
2 Amy F. Robertson, Pro Hac Vice

104 Broadway, Suite 400
3 Denver, CO 80203

Tel:
4 Fax:

(303) 595-9700 (303) 595-9705

Email: tfox@foxrob.com
5

LAWSON LAW OFFICES
6 Antonio M. Lawson, Cal. Bar No. 140823

7700 Edgewater Drive, Suite 255
7 Oakland, C9A 94621

Tel:
8 Fax:

(510) 878-7818 (510) 878-7006

Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

OAKLAND DIVISION

13 FRANCIE E. MOELLER et al,

14

Plaintiffs,

15 v.

16 TACO BELL CORP.,

17

Defendant.

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19

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Case No. C 02 5849 PJH (NC)
PLAINTIFFS’ MEMORANDUM (1) IN SUPPORT OF MOTION TO ALTER AND AMEND THE CLASS CERTIFICATION ORDER AND (2) IN RESPONSE TO DEFENDANT’S MOTION FOR DECERTIFICATION.
Hearing Date: To Be Determined Time: To Be Determined
The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor

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Case4:02-cv-05849-PJH Document646-1 Filed10/19/11 Page2 of 32

1

TABLE OF CONTENTS

2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4

I. Initial Class Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

II. Prior Substantive Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

III. Key Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

7

A. Van Accessible Parking Spaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

B. Door Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

9

C. Queue Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

10

D. Interior Seating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11

E. Restroom Amenities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

13

I. The Class Satisfies The Numerosity Requirement . . . . . . . . . . . . . . . . . . . . . . 7

14

II. The Class Satisfies The Commonality Requirement . . . . . . . . . . . . . . . . . . . . . 7

15

A. The Wal-Mart Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

16

B. The Class Shares A Number Of Common Questions

That Can Be (And In Many Cases Have Been) Answered

17

In A Classwide Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18

C. Named Plaintiffs and Class Members Suffered The Same Injury . . . . 11

19

D. TBC’s Arguments Based On Alleged Differences

In The Configuration Of Its Restaurants Should Be Rejected . . . . . . . 12

20

III. The Class Satisfies the Typicality Requirement. . . . . . . . . . . . . . . . . . . . . . . . 13

21

IV. Named Plaintiffs Will Fairly and Adequately Protect

22

the Interests of the Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23

A. Named Plaintiffs Satisfy the Ninth Circuit Standard for Adequacy . . 15

24

B. Modification of the Class Certification Order as Requested

by Plaintiffs Will Not Violate Absent Class Members’

25

Due Process Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

26

C. Named Plaintiffs Have Standing and Their Claims Are Not Moot . . . 16

27

V. Class Injunctive And Liability Claims Are Properly Certified

Under Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

28

Case No. C 02 05849 PJH (NC) Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and (2) in Response to Defendant’s Motion for Decertification
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VI. The Class Certification Order Should Be Altered And Amended

So That Key Barrier Damages Claims Are Certified Under Rule 23(b)(3) . . . 18

2

A. The Court Has The Power To Alter And Amend The 2004 Order. . . . 18

3

B. The Amended Damages Class Satisfies Rule 23(b)(3). . . . . . . . . . . . . 20

4

1. Questions of Law or Fact Common to Class Members

5

Predominate over Any Questions Affecting Only

Individual Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

6

2. A Class Action Is Superior to Other Available Methods

7

for Fairly and Efficiently Adjudicating the Controversy . . . . . 21

8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

9

10

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Case No. C 02 05849 PJH (NC) Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and (2) in Response to Defendant’s Motion for Decertification
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1

TABLE OF AUTHORITIES

2

Cases

3 Access Now, Inc. v. AHM CGH, Inc.,

2000 WL 1809979 (S.D. Fla. July 12, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

5

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13-14, 16

6

Arnold v. United Artists Theatre Circuit, Inc.,

7

158 F.R.D. 439 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21

8 Barefield v. Chevron, U.S.A., Inc.,

1988 WL 188433 (N.D. Cal. Dec. 6, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

9

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

10

Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp.,

11

249 F.R.D. 334 (N.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12 Carnegie v. Household Int’l, Inc.,

376 F.3d 656 (7th Cir. 2004) (Posner, J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

13

Castaneda v. Burger King Corporation,

14

264 F.R.D. 557 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15-16

15 Chapman v. Pier 1 Imports (U.S.) Inc.,

631 F.3d 939 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

16

Colo. Cross-Disability Coal. v. Taco Bell Corp.,

17

184 F.R.D. 354 (D. Colo. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 Domingo v. New England Fish Co.,

727 F.2d 1429 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

19

Doran v. 7–Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

20

Ellis v. Costco Wholesale Corp.,

21

--- F.3d ----, 2011 WL 4336668 (9th Cir. Sept. 16, 2011) . . . . . . . . . . . . . . . . . . passim

22 General Telephone Co. of Southwest v. Falcon,

457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

23

Gutierrez v. Wells Fargo & Co.,

24

2009 WL 1247040 (N.D. Cal. May 5, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

25 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

26

Hanon v. Dataproducts Corp.,

27

976 F.2d 497 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28

Case No. C 02 05849 PJH (NC) Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and (2) in Response to Defendant’s Motion for Decertification
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1 In re Nassau County Strip Search Cases,

461 F.3d 219 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2

Kelley v. Microsoft Corp.,

3

395 F. App’x 431 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4 Kraszewski v. State Farm Gen. Ins. Co.,

912 F.2d 1182 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5

Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

6

Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,

7

244 F.3d 1152 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

8 Lucas v. Kmart Corp.,

2005 WL 1648182 (D. Colo. July 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9

Lucas v. Kmart Corp.,

10

2006 WL 722163 (D. Colo. Mar. 22, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 20-21

11 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

12

Moeller v. Taco Bell Corp.,

13

2004 WL 5669683 (N.D. Cal. Dec. 7, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

14 Moeller v. Taco Bell Corp.,

2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

15

Nat’l Fed’n of the Blind v. Target Corp.,

16

582 F. Supp. 2d 1185 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

17 Navellier v. Sletten, 262 F.3d 923 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

18 Newsome v. Up-To-Date Laundry, Inc.,

219 F.R.D. 356 (D. Md. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

19

Park v. Ralph’s Grocery Co.,

20

254 F.R.D. 112 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 14

21 People ex rel. Deukmejian v. CHE, Inc.,

197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

22

Pichler v. Unite, 446 F. Supp. 2d 353 (E.D. Pa. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

23

Robinson v. Metro-North Commuter R.R. Co.,

24

267 F.3d 147 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

25 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

26 Rowell v. Voortman Cookies, Ltd., 2005 WL 2266607 (N.D. Ill. Sept. 14, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
27 Ryan v. Carl Corp., 1999 WL 16320 (N.D. Cal. Jan. 13, 1999) . . . . . . . . . . . . . . . . . . . . . . . 17
28

Case No. C 02 05849 PJH (NC) Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and (2) in Response to Defendant’s Motion for Decertification
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1 Salinas v. Roadway Express, Inc.,

735 F.2d 1574 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2

Seijas v. Republic of Arg., 606 F.3d 53 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3

Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

4

United States v. City of Miami,

5

195 F.3d 1292 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

6 United States v. City of New York,

--- F.R.D. ----, 2011 WL 2680474 (E.D.N.Y. July 8, 2011) . . . . . . . . . . . . . . . . . . . . 22

7

Valentino v. Carter-Wallace, Inc.,

8

97 F.3d 1227 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

9 Vinole v. Countrywide Home Loans, Inc.,

571 F.3d 935 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

10

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . passim

11

Walter v. Hughes Commc’ns, Inc.,

12

2011 WL 2650711 (N.D. Cal. July 6, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

13 Yokoyama v. Midland Nat. Life Ins. Co.,

594 F.3d 1087 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

14

Zeisel v. Diamond Foods, Inc.,

15

2011 WL 2221113 (N.D. June 7, Cal. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

16 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
17

18

Rules

19 Federal Rules of Civil Procedure

23(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

20

23(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

21

23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

22

23(c)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

23(c)(2)(B)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

23

23(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 18

53(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

24

73(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Advisory Committee Notes to 2003 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 18-19

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26

27

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1

Statutes

2 The Americans with Disabilities Act

42 U.S.C. § 12181 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3

42 U.S.C. § 12182(b)(2)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 12183(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4

The California Disabled Persons Act

5

Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 The Unruh Civil Rights Act Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7 Cal. Civ. Code § 55.56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8

9

Regulations

10 ANSI A-117.1-1961 § 5.6.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11

Other Authorities

12

7AA Charles Alan Wright et al.,

13

Federal Practice and Procedure § 1790 (3d ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

14 William B. Rubenstein, et al. Newberg on Class Actions . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

Plaintiffs hereby move to alter and amend the class certification order in this case, and

2 respond to Defendant’s Motion for Decertification (“Decert. Motion”).

3

The class certified in this case in 2004 continues to meet the requirements for

4 commonality as recently clarified in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)

5 and certification of the injunctive issues and classwide liability determinations for five Key

6 Barriers identified below, remains proper under Rules 23(b)(2) and (c)(4). In light of

7 Wal-Mart’s holding that certification of damages under Rule 23(b)(2) is generally

8 inappropriate, Plaintiffs request that the Court alter the certification order to certify under Rule

9 23(b)(3) the issue of the amount of damages each class member is entitled to arising from the

10 five Key Barriers.

11

As to these Key Barriers, the compliance status of the vast majority of these barriers

12 has been, or can be, resolved on summary judgment, as detailed below. Further, Key Barriers

13 constitute the types of barriers that most class members who eat at a Taco Bell restaurant will

14 encounter: parking; getting into the restaurant; purchasing food; dining; and using the

15 restroom. A class member is entitled to one recovery of minimum statutory damages for each

16 visit during which he or she experienced “difficulty, discomfort, or embarrassment” as a result

17 of a noncompliant element. See Cal. Civ. Code § 55.56(c). The nature of the Key Barriers is

18 such that -- when they are encountered by class members -- this standard for damages is

19 generally met. As a result, resolving Key Barrier damages claims has the potential to address

20 the vast majority of class member damages claims. The occasional class member who

21 experienced discrimination at a Taco Bell restaurant only because of some other barrier has the

22 ability to opt out of the damages portion of the class and pursue his or her own claim.

23

To summarize Plaintiffs’ position:

24

•

Liability for an injunction has already been resolved on a classwide basis, and

the scope of the injunction is appropriate for class wide determination as well,

25

making the 2004 Order’s Rule 23(b)(2) certification of injunctive issues

appropriate.

26

•

Liability for damages for the five Key Barriers -- explained below -- either has

27

been resolved or is appropriate for resolution on a classwide basis under Rule

23(b)(2).

28

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1

•

The amount of damages to which each class member is entitled as a result of

discrimination based on Key Barriers is appropriate for certification under Rule

2

23(b)(3).

3 Plaintiffs propose that the remainder of the case be bifurcated, with Rule 23(b)(2) injunctive

4 and liability issues being resolved first, followed by the Rule 23(b)(3) damages issue.

5

Finally, although the Wal-Mart decision addressed only commonality and damages

6 claims under Rule 23(b)(2), Defendant’s Decertification Motion is much broader, rehashing a

7 number of long-settled questions concerning typicality, adequacy of representation, and Rule

8 23(b)(2) certification of injunctive issues. None of these arguments has merit.

9

BACKGROUND

10 I. Initial Class Certification.

11

The complaint in this case was filed in December 2002, and was amended in August

12 2003. Both the Complaint and Amended Complaint asserted a putative class action under

13 Rules 23(b)(2) and 23(b)(3) on behalf of persons who use wheelchairs or scooters for mobility.

14 See ECF 1-1 at ¶ 20; ECF 36 at ¶ 20. On behalf of the class, the four Named Plaintiffs sought

15 injunctive relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et

16 seq., and injunctive relief and minimum statutory damages under the Unruh Civil Rights Act

17 (“Unruh”) (Cal. Civ. Code § 51) and Disabled Persons Act (“CDPA”) (Cal. Civ. Code § 54).

18

On February 23, 2004, the Court certified the class, which included class claims for

19 injunctive relief and minimum statutory damages. Moeller v. Taco Bell Corp., 220 F.R.D. 604,

20 613-14 (N.D. Cal. 2004) (“2004 Certification Order”). The Court subsequently denied TBC’s

21 motion to modify the class to remove damages claims. See Moeller v. Taco Bell Corp., 2004

22 WL 5669683 (N.D. Cal. Dec. 7, 2004).

23 II. Prior Substantive Rulings

24

On October 5, 2004, the Court appointed a Special Master, who surveyed the

25 approximately 220 restaurants at issue. ECF No. 101. The results of his surveys are on file.

26 ECF Nos. 216 through 240.

27

In February 2007, Plaintiffs moved for partial summary judgment based on the Special

28 Master’s measurements as to specified architectural elements. On August 8, 2007, the Court

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1 granted Plaintiffs’ motion in part, holding that almost 400 conditions in more than 160

2 restaurants were in violation of state law and/or the ADA. Moeller v. Taco Bell Corp., 2007

3 WL 2301778, at *12-15, 20-22 (Aug. 8, 2007) (“SJ Order”) (referencing Exs. 3 through 8 to

4 Plaintiffs’ Motion for Partial Summ. J. (“MPSJ”), ECF Nos. 256-3 through -8).

5

In June 2011, the Court conducted an exemplar trial concerning Restaurant 4518 in San

6 Pablo, California. On October 5, 2011, the Court issued its Findings of Fact and Conclusions

7 of Law (“FFCL”), holding “that plaintiffs have established that classwide injunctive relief is

8 warranted, with regard to maintaining compliance, both as to Taco Bell 4518, and as to all

9 corporate Taco Bell restaurants in California.”1 ECF No. 462 at 53.

10

As discussed below, the Court’s holdings in the SJ Order and the FFCL were based on

11 issues of fact and law that are common among class members, and as to which the Named

12 Plaintiffs’ claims are typical of those of class members.

13 III. Key Barriers.

14

The original class definition certified by the Court included minimum statutory

15 damages arising from any noncompliant barrier at any covered Taco Bell restaurant. Plaintiffs

16 seek to narrow the damages class by limiting those claims to five “Key Barriers” that, where

17 they existed, often impacted class members’ access. The SJ Order and the FFCL have already

18 established liability for many of these barriers and the vast majority of the remainder of the

19 Key Barrier liability case can be resolved through summary judgment.

20

The five Key Barriers are: (1) noncompliant access aisles at van-accessible parking

21 spaces; (2) noncompliant exterior and interior door force; (3) noncompliant queue lines;

22 (4) Interior seating areas with noncompliant accessible seating numbers and dimensions; and

23 (5) noncompliant restroom amenities.2.

24

25

1

The Court decided to wait to decide on the form of the injunction until after the

class certification issues are resolved. FFCL at 53-54.

26

2

For each Key Barrier, at least one Named Plaintiff testified during their

27

deposition that their access at a covered restaurant has been impeded. See, e.g., Corbett Dep. 32, 40, 52-53, 75-77, 87-88; Moeller Dep. 18-20, 23-24, 36-37, 65-67; Muegge Dep. 54-58,

28

60-62, 70, Yates Dep. 58-60, 66-67, 70 (Exs. 4-7 to the Robertson Decl.); see also Plaintiffs’ (continued...)

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(2) in Response to Defendant’s Motion for Decertification.

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1

A. Van-Accessible Parking Spaces.

2

As this Court has held, the ADA requires each Taco Bell restaurant to have at least one

3 van accessible parking space with an access aisle of at least 96 inches; the parties have agreed

4 to a tolerance of 94 inches. FFCL at 28. This requirement would apply to any restaurant built

5 after January 26, 1993. 42 U.S.C. § 12183(a)(1). This Court has held that restriping a parking

6 lot constitutes an alteration that would require compliance with alterations provisions, FFCL at

7 28, so any parking lot that was restriped after January 26, 1992, was required to have a van

8 accessible parking space. TBC has admitted that it restripes its parking lots annually.3 A

9 summary judgment motion can establish that approximately 88 restaurants that the Special

10 Master determined did not have a van accessible parking space with an access aisle at least 94

11 inches in width were in violation of the ADA, either because they were built after January 1,

12 1993 or because they were restriped in the meantime. See Robertson Decl. ¶¶ 4-8.

13

B. Door Force.

14

Starting on December 31, 1981, Title 24 required that exterior door force be no more

15 than 8.5 pounds. SJ Order at *14. Until April 1, 1994 that limit applied only to “primary

16 entrances;” after that date, it applied to all entrances. Id. at *14-15. The SJ Order granted

17 partial summary judgment with respect to restaurants built after April 1, 1994 that had an

18 exterior door force of more than 9.5 pounds, the tolerance applied by the Court. Id. There

19 were approximately 49 such restaurants. Robertson Decl. ¶ 9.

20

TBC has stated in interrogatory responses that the primary entrance is the entrance

21 closest to the accessible parking space(s). Robertson Decl. Ex. 2. Using that definition and the

22 Special Master’s measurements, summary judgment will be appropriate as to an additional

23 approximately 46 restaurants with exterior door force violations because they are either

24

25

2(...continued)

26 Response to Taco Bell Corp.’s Supplemental Case Authority (ECF No. 615) at 2-3 & nn. 1-10, which is incorporated herein by reference.

27

3

See, e.g., Elmer 9/28/05 tr. at 80:15-16 (Rule 30(b)(6) deponent testified that “I

28

know for a fact that every year we have the parking lots restriped . . .”) (Robertson Decl. Ex. 1).

Case No. C 02 05849 PJH (NC)

Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and

(2) in Response to Defendant’s Motion for Decertification.

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1 (1) violations at primary entrances at stores built between 1981 and 1994; or (2) violations at

2 stores built before 1981 at which TBC’s responses to requests for admission (“RFAs”)

3 establish that either the door closer or the door itself was replaced after 1981. Robertson Decl.

4 ¶¶ 13-14. The FFCL established that newly installed door closers must comply with the

5 standards at the time of installation. Id. at 31.

6

Starting on December 31, 1981, Title 24 required that interior door force be no more

7 than five pounds; the ADAAG contains the same standard. See SJ Order at *13. The SJ Order

8 granted partial summary judgment with respect to 141 restaurants built after December 31,

9 1981 that had restroom door forces of more than seven pounds, the tolerance agreed to by the

10 parties. Id. at *13-14, MPSJ Exs. 3-4. Using the Special Master’s measurements, summary

11 judgment will be appropriate on an additional approximately seven interior door force

12 violations at pre-1981 stores because either (1) TBC has admitted through RFAs that either the

13 door or the door closer was replaced after 1981; or (2) Plaintiffs will demonstrate -- based on

14 unrebutted expert evidence of precisely the type that the Court relied on in the FFCL, see id. at

15 31 -- that it was “readily achievable,” see 42 U.S.C. § 12182(b)(2)(A)(iv), to replace the door

16 closer. Robertson Decl. ¶¶ 28-29.

17

C. Queue Lines.

18

Starting on December 31, 1981, state law required cafeteria lines and circulation paths

19 to be at least 36 inches wide. SJ Order at *9. Starting on January 26, 1993, the ADA required

20 either (1) that the lanes of the queue line be at least 42 inches wide with 48 inches at the point

21 of the turn, or (2) that the lanes be at least 36 inches wide with 60 inches at the point of the

22 turn. Id. at *9-10. The SJ Order held that queue lines at 77 restaurants violated one of those

23 standards, but that TBC had raised a disputed question of fact as to whether its auxiliary access

24 constituted equivalent facilitation. Id. at *9-12, MPSJ Exs. 1 & 2.

25

Following the exemplar trial, this Court held that the auxiliary access does not provide

26 equivalent facilitation. FFCL at 45-51. Thus, liability can be established for the 77 queue

27 lines held noncompliant in the SJ Order. Summary judgment will also be appropriate with

28 respect to an additional approximately nine queue lines that, based on the Special Master’s

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1 measurements, did not comply with the 1982 standard because TBC has admitted, in response

2 to Plaintiffs’ RFA, that all queue lines were installed in Taco Bell restaurants no earlier than

3 1983. Robertson Decl. ¶ 18 & Ex. 3.

4

D. Interior Seating.

5

Since December 31, 1981, state law has required at least one wheelchair seating space

6 for each twenty seats. SJ Order at *22. The ADA requires that five percent but not less than

7 one. Id. at *20. The ADA also governs the dimensions of knee clearance at accessible seating

8 spaces. Id. The SJ Order granted partial summary judgment with respect to 54 restaurants that

9 violated those standards. Id. at *21, *22; MPSJ Exs. 6-8.

10

Summary judgment will be appropriate concerning an additional approximately 59

11 violations of table number and dimension requirements because: (1) TBC has admitted through

12 RFAs that either tables were replaced after the applicable date; or (2) Plaintiffs will

13 demonstrate -- based on unrebutted expert evidence of precisely the type that the Court relied

14 on in the FFCL, see id. at 33-34 -- that it was readily achievable to replace the table top.

15 Robertson Decl. ¶¶ 24-25.

16

E. Restroom Amenities.

17

Starting on July 1, 19704 and continuing to the present, state law has required restroom

18 amenities such as paper towel dispensers, hand dryers, soap dispensers, and toilet seat cover

19 dispensers to be mounted at no more than 40 inches above the finished floor. See, e.g., FFCL

20 at 37. The parties agreed to a tolerance of 42 inches. Id. In approximately 170 restaurants

21 built since July 1, 1970, at least one and often multiple restroom amenities are mounted with

22 their operable parts higher than 42 inches. Robertson Decl. ¶ 32.

23

In sum, a total of approximately 216 restaurants have at least one Key Barrier that has

24 either been adjudged noncompliant or would be amenable to summary adjudication. Id. ¶ 33.

25

26

4

ANSI A-117.1-1961 § 5.6.6. Between July 1, 1970 and the first effective date

27

of Title 24 on December 31, 1981, compliance was governed by “ANSI A117.1-1961: American National Standard Specifications for Making Buildings and Facilities Accessible to

28

and Usable by, The Physically Handicapped.” People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983).

Case No. C 02 05849 PJH (NC)

Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and

(2) in Response to Defendant’s Motion for Decertification.

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1

ARGUMENT

2

The 2004 Certification Order is one of dozens of decisions holding that the

3 requirements of Rule 23 -- including the commonality requirement -- are met by classes of

4 persons with disabilities asserting claims under disability rights statutes.5 As demonstrated

5 below, this class easily meets the commonality requirement as delineated in Wal-Mart.

6 Finally, while the class claims as to liability and injunctive relief remain properly certified

7 under Rule 23(b)(2), the 2004 Certification Order should be altered and amended to certify

8 under Rule 23(b)(3) the issue of the amount of statutory damages each class member is entitled

9 to arising from Key Barriers.

10 I. The Class Satisfies The Numerosity Requirement.

11

TBC does not challenge numerosity. As set forth in the 2004 Certification Order, the

12 class is geographically dispersed and covers more than 220 popular fast food restaurants. As a

13 matter of common sense, the class is numerous and joinder is impracticable. See Moeller, 220

14 F.R.D. at 608 (“A court may make common sense assumptions to support a finding that joinder

15 would be impracticable.”).

16 II. The Class Satisfies The Commonality Requirement.

17

This Court held in the 2004 Certification Order that the commonality requirement was

18 met because “this case involves a homogeneous class of plaintiffs (individual wheelchair or

19 scooter users) who are bringing multiple but common factual claims that will be determined

20

21

22

5

See, e.g., 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,

23

developmental, and mobility disabilities); 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

24

violations of architectural accessibility requirements at a grocery store chain); Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 344-49 (N.D. Cal. 2008)

25

(certifying class of persons with mobility and/or vision disabilities suing due to barriers along outdoor designated pedestrian walkways throughout the state of California which are owned

26

and/or maintained by the California Department of Transportation); 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

27

with visual impairments suing for alleged violations of accessibility requirements at online store); Lucas v. Kmart Corp., 2005 WL 1648182 (D. Colo. July 13, 2005) (nationwide class) &

28

2006 WL 722163 (D. Colo. Mar. 22, 2006) (damages settlement sub-class). See also Pls.’ Mot. for Class Certification (ECF No. 40) at 14-16 & n.18 (citing cases).

Case No. C 02 05849 PJH (NC)

Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and

(2) in Response to Defendant’s Motion for Decertification.

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1 pursuant to a common legal backdrop.” Id. at 609. This decision is entirely in accord with the

2 Supreme Court’s discussion of commonality in Wal-Mart.

3

A. The Wal-Mart Decision.

4

The class in Wal-Mart had about one and a half million members, current and former

5 female employees of Wal-Mart at 3,400 stores across the country. 131 S. Ct. at 2546. The

6 plaintiffs alleged that local supervisors had exercised their discretion over pay and promotion

7 matters in a manner that violated Title VII by discriminating against women. Id. The Court

8 held that the class did not meet the commonality requirement for two reasons.

9

First, the Court held that commonality requires not only one or more common

10 questions, but also that those questions “must be of such a nature that [they are] capable of

11 classwide resolution.” Id. at 2551.

12

Second, commonality requires that plaintiffs bridge the gap between the named

13 plaintiffs’ discriminatory experiences, and the existence of a class of persons who have

14 suffered the same injury, such that the individuals’ claims and the claims of the class will share

15 common questions, and that the individuals’ claims will be typical of those of the class. Id. at

16 2553 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-58 (1982)).

17

Many of the claims and defenses in this case -- including decisions on the merits that

18 have already resolved a number of those claims and defenses -- are common issues capable of

19 classwide resolution, and constitute substantial proof that Plaintiffs and members of the class

20 have suffered discrimination manifested in the same general fashion. See id.

21

B. The Class Shares A Number Of Common Questions That Can Be (And In

Many Cases Have Been) Answered In A Classwide Proceeding.

22

Although a single common question capable of classwide resolution suffices to satisfy

23

Rule 23(a)(2), Wal-Mart, 131 S. Ct. at 2556, here common issues permeate virtually every

24

aspect of the case.

25

Injunctive relief: In its FFCL, this Court found that injunctive relief is warranted as to

26

all corporate Taco Bell restaurants in California. FFCL at 53. That decision was based on a

27

number of common questions that were answered on a classwide basis, including:

28

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1

Common Questions

Common Answers

2 Are TBC’s violations of access requirements sufficiently Yes. FFCL at 53.

3

widespread to justify an injunction covering all of the restaurants at issue?

4 Does Taco Bell’s remediation of its restaurants deprive plaintiffs and class members of standing to seek
5 injunctive relief?

No. FFCL at 22-25.

6 Do architectural elements at TBC’s restaurants change frequently, undermining a voluntary cessation defense?
7 Does TBC have a history of not following its access
8 policies, undermining a voluntary cessation defense?

Yes. FFCL at 42-43. Yes. FFCL at 40-41.

9 Are TBC’s access policies contradictory, undermining a Yes. FFCL at 42. voluntary cessation defense?

10 Is TBC not following its current access policies,
11 undermining a voluntary cessation defense?

Yes. FFCL at 41-42.

12

Could TBC change or rescind its access policies in the future, undermining a voluntary cessation defense?

13

Yes. FFCL at 42.

14

Liability: In Wal-Mart, the liability determination required an individualized analysis

15 of the reason that a specific raise or promotion was denied. 131 S. Ct. at1552. In contrast, in

16 this case liability is established by comparing the measurements of an architectural element

17 with the requirements in place at the time that the restaurant was constructed or altered.

18 Because the same types of elements -- parking, doors, queue lines, seating, and restroom

19 amenities -- are found in many if not most of the restaurants at issue, and are subject to a

20 common legal framework, the common question whether these elements are out of compliance

21 can be answered in this proceeding.

22

This was illustrated by the SJ Order. Based on the Special Master’s surveys and

23 stipulated construction dates, the Court held that almost 400 architectural elements among

24 more than 160 restaurants violated state and/or federal requirements. In that Order, and in the

25 Court’s FFCL, the Court resolved a number of common liability questions, including:

26

27

28
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1

Common Questions

2 What is the standard for van accessible access 3 aisles?
Does restriping parking constitute an alteration 4 under state and federal law?

Common Answers
Minimum 96 inches in width, with a tolerance of 94 inches. FFCL at 28.
Yes. FFCL at 28-29.

5 What is the standard for exterior door force after Maximum 8.5 pounds, with a tolerance

December 31, 1981? 6

up to 9.5 pounds. FFCL at 29-30.

What entrances did this apply to? 7

Primary entrances before April 1, 1994; all entrances after. SJ Order at *14-15.

8 What is the standard for interior door force after Maximum 5 pounds, with a tolerance up

December 31, 1981?

to 7 pounds. SJ Order at *13.

9 What is the standard applicable to queue lines in Minimum 36 inches in width. SJ Order

10 restaurants built after December 31, 1981?

at *9.

11 What is the standard applicable to queue lines in Minimum 42-inch-wide lanes with at

restaurants built after January 26, 1993?

least 48 inches at the turn or minimum

12

36-inch-wide lanes with at least 60

inches at the turn. SJ Order at *9-10.

13 How many seats are required to be accessible? 14

One out of every 20, SJ Order at *22, or five percent, SJ Order at *20.

15 Going forward, the compliance status of only a small subset of architectural elements
16 will need to be determined. The Court has already found that there is sufficient evidence for
17 an injunction covering all restaurants at issue, and thus further compliance determinations are
18 not necessary for injunctive relief. Additionally, Plaintiffs have agreed to limit class damages
19 claims to the five Key Barriers. The SJ Order already determined that many of these barriers
20 were in violation of state and/or federal law and, as discussed above, the compliance status of
21 the vast majority of remaining Key Barriers can be determined by summary judgment.
22 Defenses: There are a number of common questions relating to TBC’s defenses that
23 can be (and have been) answered on a classwide basis, including:
24

25

26

27

28
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1

Common Questions

Common Answers

2 Has TBC met its burden under the voluntary

No. FFCL at 39.

3 cessation defense?

Should the fact that a building department issued No. FFCL at 43-44.

4 a certificate of occupancy for a restaurant create

a presumption that the building department

5 granted an exception covering any access

violations in that restaurant in the absence of

6 written evidence of such an exception?

7 Does the auxiliary access lane at TBC’s queue line constitute equivalent facilitation?
8 Does the difficulty of maintaining compliant 9 door force excuse such compliance?
Does the fact that the ADAAG does not contain 10 a standard for exterior door force constitute 11 equivalent facilitation?

No. FFCL at 50-51. No. FFCL at 30. No. FFCL at 51-52.

12

C. Named Plaintiffs and Class Members Suffered The Same Injury.

13

Commonality requires that named plaintiffs and class members share common issues,

14 so there must be evidence showing that the discrimination complained of was not isolated to

15 the named plaintiffs but was also encountered by class members. Id. at 2553. The plaintiffs in

16 Wal-Mart did not meet this requirement because they alleged that the discriminatory

17 employment decisions at issue were made by store managers, but had no statistical or

18 anecdotal evidence showing common violations by store managers. Id. at 2554-56.

19

Here, the Court’s SJ Order established that there were noncompliant entrance doors,

20 seating areas and/or restroom doors at over 160 restaurants at issue in this case. SJ Order at

21 *12-15, 20-22 (referencing Exs. 3 through 8 to MPSJ). In other words, more than 70% of the

22 restaurants at issue have one or more architectural elements that have been determined to

23 violate state and/or federal law. This evidence easily “bridges the gap” to show that the

24 discrimination experienced by the Named Plaintiffs was also experienced by class members

25 when they patronized covered restaurants, and that they suffered the same injury.

26

TBC argues that the Named Plaintiffs and class members did not suffer the same injury

27 because, it asserts, a class member who cannot use an inaccessible queue line suffers a

28

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1 different injury from a class member who cannot use some other element, such as an

2 inaccessible table. Decert. Motion at 9-12. The Ninth Circuit has twice rejected this approach

3 to the injury caused by architectural barriers. In Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1042-

4 43 (9th Cir. 2008) and again in Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th

5 Cir. 2011) (en banc), the Ninth Circuit held that:

6

“it is ultimately misleading to conceptualize each separate architectural barrier

inhibiting a disabled person's access to a public accommodation as a separate injury

7

that must satisfy the requirements of Article III.” Rather, the injury suffered by

disabled plaintiffs is the “discrimination” under the ADA that results from an

8

accommodation's “failure to remove architectural barriers.”

9 Chapman, 631 F.3d at 951-52 (quoting Doran).

10

Further, commonality does not require the claims of class members to be identical.

11 See, e.g., Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010) (Holding that class

12 members need “not share every fact in common or completely identical legal issues.”); see also

13 Walter v. Hughes Commc’ns, Inc., 2011 WL 2650711, at *8 (N.D. Cal. July 6, 2011). Indeed,

14 in Wal-Mart, the Court, quoting Falcon, stated that commonality exists when discrimination is

15 manifested “in the same general fashion” among class members. Wal-Mart, 131 S. Ct. at 2253.

16

D. TBC’s Arguments Based On Alleged Differences In The Configuration Of

Its Restaurants Should Be Rejected.

17

TBC argues against commonality on the grounds that the restaurants are configured

18

differently and were constructed or altered at different times. Decert. Motion at 10-11, 24.

19

These minor differences are largely irrelevant and are insufficient to overcome the significant

20

common questions unifying the class. As this Court previously held, “[t]he ‘unique

21

architecture’ argument has been rejected by a number of courts in disability cases.” Moeller,

22

220 F.R.D. at 609; see also Park, 254 F.R.D. at 121 (“Despite differences from store to store,

23

the alleged accessibility barriers affect all wheelchair users in the same way.”); Colo.

24

Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 359-60 (D. Colo. 1999).

25

First, each type of architectural element in TBC’s restaurants -- including the Key

26

Barriers -- is subject to a common legal framework, a common set of measurements taken by

27

the Special Master, and a common set of stipulated or admitted construction and alteration

28

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1 dates. Together, these common legal and factual issues permit the compliance status of large

2 numbers of Key Barriers to be determined in a single ruling on a classwide basis. The fact that

3 not every architectural element exists at every covered restaurant does not defeat commonality

4 because “‘[a]ll questions of fact and law need not be common to satisfy the rule.’” Ellis v.

5 Costco Wholesale Corp., --- F.3d ----, 2011 WL 4336668, at *7 (9th Cir. Sept. 16, 2011).

6

Second, aside from the elements in covered restaurants, there are a number of important

7 common issues that can be (and have been) answered in this proceeding, including whether

8 TBC’s violations were sufficiently widespread to justify systemwide relief, whether Taco

9 Bell’s remediation of its restaurants deprived plaintiffs and class members of standing for

10 injunctive relief, whether the facts supported TBC’s voluntary cessation defense, and the

11 validity of TBC’s building department, equivalent facilitation, and other defenses.

12

Finally, TBC’s contention that alleged differences in the configuration of its restaurants

13 precludes an injunction is belied by the fact that the Court, in its FFCL, determined that there

14 was sufficient evidence to warrant an injunction covering all restaurants. FFCL at 53; see also

15 id. at 39 (“A court need not address every violation in order to conclude that violations are

16 sufficiently widespread to necessitate a system wide injunction.”).

17

For the above reasons, the class in this case satisfies the commonality requirement.

18 III. The Class Satisfies the Typicality Requirement.

19

The Wal-Mart Court did not address the typicality requirement of in Rule 23(a)(3).

20 TBC is simply rehashing an argument that the Court has already twice rejected:6 that typicality

21 does not exist because of alleged differences in the configuration of its restaurants and in the

22 disabilities of class members. TBC’s position contradicts Ninth Circuit precedent.

23

For example, in Armstrong v. Davis, 275 F.3d 849 (2001), the Ninth Circuit held that

24 where the challenged conduct is a practice that affects all class members,

25

26

27

28

6

See 2004 Certification Order, 220 F.R.D. at 611 n.15; ECF No. 148 at 5-6.

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1

We do not insist that the named plaintiffs’ injuries be identical with those of the

other class members, only that the unnamed class members have injuries similar

2

to those of the named plaintiffs and that the injuries result from the same,

injurious course of conduct.

3

Id. at 869. “‘Typicality refers to the nature of the claim or defense of the class representative,

4

and not to the specific facts from which it arose or the relief sought.’” Hanon v. Dataproducts

5

Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). Here, the Named Plaintiffs’ and

6

class members’ injuries result from the same course of conduct -- TBC’s failure to comply

7

with access requirements -- and the nature of their claims is the same. Thus the typicality

8

requirement is met, as numerous other courts in similar cases have found. See, e.g., Arnold v.

9

United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 450 (N.D. Cal. 1994); Park v. Ralph’s

10

Grocery Co., 254 F.R.D. 112, 121 (C.D. Cal. 2008); Access Now, Inc. v. AHM CGH, Inc., 2000

11

WL 1809979, at *3 (S.D. Fla. July 12, 2000); see also supra note 5 (citing cases).

12

The sole case that TBC relies on -- Castaneda v. Burger King Corp., 264 F.R.D. 557

13

(N.D. Cal. 2009) -- does not change this result. The Castaneda decision -- for which the

14

Ninth Circuit granted the plaintiffs’ Rule 23(f) interlocutory appeal7 -- involved facts that the

15

Castaneda court explicitly distinguished from those at issue here. See id. at 567-68.

16

The Castaneda litigation involved franchised restaurants, in contrast to the corporate

17

restaurants at issue here. As such, that court found, there were no “common offending policies

18

or design characteristics.” Id. at 568. In contrast, this Court has examined TBC’s access

19

policies and held that they are “centralized -- policies in place at Taco Bell 4518 are also in

20

place at all other California corporate Taco Bell restaurants.” FFCL at 15. Similarly, while the

21

Castaneda court held that there were no centralized features, id. at 563, this Court -- in its SJ

22

Order -- has ruled on three barriers, each of which is common to many restaurants, and

23

Plaintiffs have explained above how all five Key Barriers are similarly common. See supra at

24

3-6. TBC directly operates the restaurants at issue, its policies are centralized, and the Special

25

Master’s surveys demonstrate a number of common facts concerning barriers that, for example,

26

27

7

28 ¶ 38.

See Robertson Decl. Ex. 8. The case settled before the appeal was decided. Id.

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1 permitted a liability determination on approximately 400 barriers in 160 restaurants, as well as

2 a determination that an injunction covering all of the restaurants at issue was warranted.

3 IV. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.

4

Again, this was not a question addressed in the Wal-Mart case, but represents TBC’s

5 attempt to rehash long-settled questions. The adequacy requirement is easily met here.

6

A. Named Plaintiffs Satisfy the Ninth Circuit Standard for Adequacy

7

Named Plaintiffs satisfy the adequacy requirement of Rule 23(a)(4) because they do not

8 have any conflicts of interest with other class members and because they will prosecute --

9 indeed have prosecuted -- the action vigorously on behalf of the class. See Ellis, 2011 WL

10 4336668, at *12 (citation omitted).

11

There is no question that Named Plaintiffs will prosecute the action vigorously. They

12 have done so for nine years, and TBC does not and could not argue to the contrary. In

13 addition, there are no conflicts between Named Plaintiffs and the class, nor does TBC argue

14 that there are.8 Named Plaintiffs share with the class -- with respect to an injunction -- an

15 interest in ensuring that California corporate Taco Bell restaurants become and -- importantly,

16 at this stage -- remain maximally accessible. As for damages, at least one Named Plaintiff has

17 experienced discrimination based on encounters with each of the Key Barriers, see supra note

18 2, so they will be motivated to work for -- and indeed have achieved -- advantageous rulings

19 relating to those barriers, and will continue to be motivated to work for advantageous recovery

20 for the class resulting from these barriers.

21

TBC relies on Castaneda to argue that Named Plaintiffs are not adequate

22 representatives with respect to restaurants they have not patronized. Decert. Motion at 15-16.

23 The citation on which it relies, however, relates to a discussion of commonality, not adequacy,

24

25

8

TBC argues that Named Plaintiff Ed Muegge is an inadequate class

representative with respect to injunctive relief because he now lives out of state. Decert.

26

Motion at 2, 16, 18. Mr. Muegge has testified that he returns regularly to California. Muegge dep. 123:1-7, 124:8-13 (Robertson Decl. Ex. 6). For this reason, he shares with the class the

27

interest in ensuring continued accessibility at Taco Bell’s California restaurants. Should this Court disagree, it would not affect the ultimate outcome, as TBC does not challenge the

28 adequacy of the remaining Named Plaintiffs on this ground.

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1 see id. (citing Castaneda, 264 F.R.D. at 571-72). As was established above in Section III,

2 Castaneda is distinguishable and, indeed, distinguished the present case in the very ruling on

3 which TBC relies. See Castaneda, 264 F.3d at 567-68.

4

B. Modification of the Class Certification Order as Requested by Plaintiffs

Will Not Violate Absent Class Members’ Due Process Rights.

5

TBC argues, without citation, that the facts that the Exemplar Trial was limited to 12

6

barriers and that the proposed damages class is limited to five Key Barriers would violate

7

absent class members’ due process rights by binding them to a limited class definition. Decert.

8

Motion at 16-17. This is incorrect.

9

The injunctive phase of the trial -- which is binding on the class without opt-out rights

10

-- has already established “that classwide injunctive relief is warranted, with regard to

11

maintaining compliance . . . as to all corporate Taco Bell restaurants in California.” FFCL at

12

53. Thus the issues litigated in that trial, combined with the Court’s findings in its SJ Order,

13

were broad enough to secure significant injunctive relief for the class.

14

With respect to damages, class members’ due process rights will be protected by Rule

15

23(b)(3)’s opt out right -- if a class member is unhappy with the limitation of the class to five

16

Key Barriers, he or she may opt out and pursue his or her rights in individual litigation. See

17

Fed. R. Civ. P. 23(c)(2)(B)(v).

18

C. Named Plaintiffs Have Standing and Their Claims Are Not Moot

19

TBC argues that Plaintiffs are not adequate representatives because they do not have

20

standing and because their claims are moot. Decert. Motion at 17-19. Since TBC filed its

21

motion, this Court has rejected both arguments. FFCL at 22-26 (standing); 39-43 (mootness).

22

Specifically, the Court held that “plaintiffs have sufficiently established a likelihood

23

that the injury will recur by showing that TBC “‘repeatedly engaged in injurious acts in the

24

past.’” FFCL at 25 (quoting Armstrong, 275 F.3d at 861). “Standing exists if at least one

25

named plaintiff meets the requirements.” Ellis, 2011 WL 4336668, at *5 (citation omitted).

26

The Court also held that Plaintiffs’ claims were not moot because “TBC has failed to

27

carry the ‘heavy burden’ of showing that violations of the ADA and Title 24 will not occur in

28

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1 the future at Taco Bell 4518.” FFCL at 43. Several of the grounds for this holding are

2 applicable to all of the restaurants covered by the class: TBC’s policies -- which the Court

3 found to be “centralized,” id. at 15 -- are “vague and contradictory, id. at 42; crucial

4 maintenance policies “include a provision giving TBC the discretion to ignore violations . . .

5 based on unknown and unspecified criteria,” id.; and “TBC could change or rescind its policies

6 at any time,” id. Finally, the Court relied on the fact that Jaime de Beers, a former TBC

7 facility leader for Northern California, testified that “certain elements at TBC restaurants are

8 ‘subject to frequent change.’” Id. at 42-43. Ms. de Beers’s declaration was not limited to any

9 specific stores. See Trial Ex. 85 ¶ 6.

10 V. Class Injunctive And Liability Claims Are Properly Certified Under Rule 23(b)(2).
11 TBC argues that class injunctive claims do not meet the requirements of Rule 23(b)(2),
12 but nothing in the Wal-Mart decision supports this argument. To the contrary, the Court
13 recognized that “‘[c]ivil rights cases against parties charged with unlawful, class-based
14 discrimination are prime examples’ of what (b)(2) is meant to capture.” 131 S. Ct. at 2557
15 (citation omitted). Similarly, it is common to certify liability issues (here, liability as to the
16 Key Barriers) Bunder Rule 23(b)(2).9
17 TBC’s argument to the contrary rests on two assertions squarely rejected in this Court’s
18 FFCL. First, it contends that because it has (temporarily) fixed its restaurants, there is no
19 likelihood of future injury. Decert. Motion at 20-21. This argument goes to whether an
20 injunction should be entered, not whether the requirements of Rule 23(b)(2) are met. See Ellis,
21 2011 WL 4336668, at *10 n.8. Further, as a substantive matter, this Court has already rejected
22 this argument. See FFCL at 39-43, 53.
23

24

25

9

See, e.g., Ryan v. Carl Corp., 1999 WL 16320, at *11 (N.D. Cal. Jan. 13, 1999)

26

(“[T]he interests of justice are best served in this action by certifying the proposed main class under Rule 23(b)(2) for a determination of liability and injunctive relief . . .); Barefield v.

27

Chevron, U.S.A., Inc., 1988 WL 188433, at *4 (N.D. Cal. Dec. 6, 1988) (“Accordingly, the case shall remain certified under (b)(2) through the determination of liability for the claims for

28 injunctive, declaratory, back pay, and punitive damages.”).

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1

TBC also argues that before an injunction can enter, the circumstances of each barrier,

2 and each class member, must be separately analyzed. The Court has already effectively

3 rejected this argument as well, by holding that “the court finds that plaintiffs have established

4 that classwide injunctive relief is warranted.” FFCL at 53. The court can enter an injunction

5 based on “evidence that is ‘symptomatic’ of the defendant’s violations, including ‘individual

6 items of evidence [that are] representative of larger conditions or problems.’” FFCL at 39

7 (citing Armstrong, 275 F.3d at 871).

8 VI. The Class Certification Order Should Be Altered And Amended So That Key

Barrier Damages Claims Are Certified Under Rule 23(b)(3).

9

The 2004 Certification Order certified the class claims seeking minimum statutory

10

damages under Rule 23(b)(2). Based on Wal-Mart, Plaintiffs respectfully request that this

11

Court exercise its power pursuant to Fed. R. Civ. P. 23(c)(1)(C) and (c)(4) to alter and amend

12

the 2004 Certification Order such that the issue of classwide liability for minimum statutory

13

damages as to Key Barriers be certified under Rule 23(b)(2), and the issue of the damages

14

recoverable by each class member resulting from Key Barriers, be certified under Rule

15

23(b)(3), for the following class:

16

All individuals with disabilities who use wheelchairs or electric scooters for

17

mobility who, at any time on or after December 17, 2001, were denied, or are

currently being denied, on the basis of disability, full and equal enjoyment of

18

the goods, services, facilities, privileges, advantages, or accommodations of

California Taco Bell corporate restaurants based on any one of the following

19

non-compliant barriers: access aisles at van accessible parking; entry or

restroom door force; number or dimensions of accessible seating positions;

20

queue line; height of restroom amenities.

21

A. The Court Has The Power To Alter And Amend The 2004 Order.

22

Rule 23(c)(1)(C) provides that “[a]n order that grants or denies class certification may

23 be altered or amended before final judgment,” and TBC agrees that the Court can alter or

24 amend the 2004 Order. See Decert. Motion at 5-6. Indeed, amending the certification order as

25 to damages after a liability determination is a common use of the power vested courts under

26 Rule 23(c)(1)(C). According to the Advisory Committee notes to the 2003 amendments to this

27 subsection, “[f]ollowing a determination of liability . . . proceedings to define the remedy may

28
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1 demonstrate the need to amend the class definition or subdivide the class.” Numerous courts

2 have held that courts can alter or amend a certification order to address damages issues. See,

3 e.g., Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (Posner, J.). Finally,

4 altering and amending the 2004 Certification Order is particularly necessary because that

5 Order was based on then-existing Ninth Circuit precedent that was rejected in Wal-Mart. See

6 Ellis, 2011 WL 4336668, at *1 (“In light of Wal–Mart’s rejection of the ‘predominance’ test,

7 the district court must consider whether the claims for various forms of monetary relief will

8 require individual determinations and are therefore only appropriate for a Rule 23(b)(3)

9 class.”).

10

The power to alter or amend a class includes the power to change the subsection of

11 Rule 23(b) pursuant to which the class is certified. See, e.g., Langley v. Coughlin, 715 F.

12 Supp. 522, 552 (S.D.N.Y. 1989) (Holding that “a modification of the class certification to

13 invoke Rule 23(b)(3) in place of Rules 23(b)(1)(A) and (b)(2) is appropriate.”); Pichler v.

14 Unite, 446 F. Supp. 2d 353, 365 n.37 (E.D. Pa. 2006) (recertifying a Rule 23(b)(3) class under

15 Rule 23(b)(1)(A)); Rowell v. Voortman Cookies, Ltd., 2005 WL 2266607, at *4 (N.D. Ill. Sept.

16 14, 2005) (Changing basis of certification from Rule 23(b)(1)(A) to 23(b)(3)).

17

In addition, Rule 23(c)(4) permits class certification “with respect to particular

18 issues.”10 This subsection “is designed to give the court additional flexibility in handling class

19 actions,” including to address manageability issues. 7AA Charles Alan Wright et al., Federal

20 Practice and Procedure § 1790 (3d ed.). As demonstrated below, limiting class damages

21 claims to Key Barriers will assist manageability.

22

23

24

25

10

District courts should “take full advantage of this provision to certify separate

26

issues in order to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 (2d Cir. 2001);

27

See also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (“Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule

28 23(c)(4)(A) and proceed with class treatment of these particular issues.”).

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1

B. The Amended Damages Class Satisfies Rule 23(b)(3).

2

Rule 23(b)(3) has two requirements: (1) questions of law or fact common to class

3 members must predominate over any questions affecting only individual members; and (2) and

4 that a class action is superior to other available methods for fairly and efficiently adjudicating

5 the controversy. Those requirements are met here.

6

1. Questions of Law or Fact Common to Class Members Predominate

over Any Questions Affecting Only Individual Members.

7

“[T]he main concern in the predominance inquiry . . . [is] the balance between

8

individual and common issues.” Kelley v. Microsoft Corp., 395 F. App’x 431, 432 (9th Cir.

9

2010) (citation omitted). When common questions present a significant aspect of the case and

10

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

11

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

12

Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244

13

F.3d 1152, 1162 (9th Cir. 2001) (citation omitted). Courts conducting this balance should

14

consider all factual or legal issues, including those conceded by the party opposing class

15

certification or resolved earlier in the litigation. See In re Nassau County Strip Search Cases,

16

461 F.3d 219, 227-29 (2d Cir. 2006); Seijas v. Republic of Arg., 606 F.3d 53, 57 (2d Cir.

17

2010).

18

The court in Lucas v. Kmart Corp., 2006 WL 722163 (D. Colo. March 22, 2006),

19

addressed the precise issue before this Court. That court certified, for settlement purposes,11 a

20

Rule 23(b)(3) class with claims for statutory damages under Unruh and the CDPA. Id. at *1.

21

In so doing, it held: “[W]hen a class . . . of individuals with disabilities seeks statutory

22

minimum damages for alleged discrimination based on architectural or other barriers, the

23

factual and legal issues common to the class predominate over any individual issues. . . [W]hile

24

there [are] various questions concerning the defendant’s possible liability that were common to

25

26

27

11 As the Kmart court noted, “[t]he class must satisfy the requirements of F.R.C.P.

23 even in the settlement context.” 2006 WL 722163, at *2 n.3 (citing Amchem Prods., Inc. v.

28 Windsor, 521 U.S. 591, 619-20 (1997)).

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1 the class, the only issue individual to each class member [is] ‘the number of instances of

2 discrimination encountered by each class member.’” Id. at *5 (citation omitted).

3

There are multiple, significant common questions relating to the Key Barrier damages

4 claims. Indeed, all of the common questions concerning liability and defenses set forth in the

5 tables above (see supra at 10-11) are relevant to Key Barrier damages claims. These common

6 legal and factual questions have permitted, in one proceeding, classwide determinations

7 concerning the compliance status of hundreds of architectural elements, as well as the

8 resolution of a number of significant legal issues, resulting in substantial efficiencies for the

9 Court, the parties and class members. See Zinser v. Accufix Research Inst., Inc., 253 F.3d

10 1180, 1189 (9th Cir. 2001) (“Implicit in the satisfaction of the predominance test is the notion

11 that the adjudication of common issues will help achieve judicial economy.” (Citation

12 omitted.)).

13

TBC argues that the predominance requirement is not met because “[d]amages claims

14 are highly individualized and unique.” Decert. Motion at 23. The only individualized

15 damages issue, however, is “the simple question of the number of instances that individual

16 class members were aggrieved by [noncompliant Key Barriers] at Defendant’s restaurants

17 during the period covered by the lawsuit.” Moeller, 220 F.R.D. at 610 (citing Arnold, 158

18 F.R.D. at 449.)

19

Further, the Ninth Circuit has repeatedly held that “‘[t]he amount of damages is

20 invariably an individual question and does not defeat class action treatment.’” Yokoyama v.

21 Midland Nat. Life Ins. Co., 594 F.3d 1087, 1089 (9th Cir. 2010) (quoting Blackie v. Barrack,

22 524 F.2d 891, 905 (9th Cir. 1975)).

23

Because there are numerous issues common to class damages claims, and only one

24 individualized issue, the predominance requirement is met.

25

2. A Class Action Is Superior to Other Available Methods for Fairly

and Efficiently Adjudicating the Controversy.

26

Rule 23(b)(3) also requires that a “class action is superior to other available methods

27

for fairly and efficiently adjudicating the controversy.” “This determination necessarily

28

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1 involves a comparative evaluation of alternative mechanisms of dispute resolution.” Hanlon v.

2 Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998). “The overarching focus remains whether

3 trial by class representation would further the goals of efficiency and judicial economy.”

4 Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009).

5

This class action has already resulted in extraordinary efficiencies as compared to

6 hundreds of individual lawsuits. As set forth above, the compliance status of hundreds of

7 architectural elements covering the majority of restaurants has been determined, numerous

8 substantial disputes of law have been resolved, and the Court has found that an injunction

9 covering all restaurants at issue is warranted. These accomplishments have resulted from nine

10 years of hard work by the Court and the parties and significant expense by the parties.

11

Going forward, bifurcating the case will result in a number of efficiencies.12 First, even

12 if damages claims are not certified, the classwide liability determinations made in the first

13 stage will apply to subsequent individual actions by class members. See Newsome v.

14 Up-To-Date Laundry, Inc., 219 F.R.D. 356, 365 (D. Md. 2004).

15

Second, if damages claims remain certified, the liability determinations will make it

16 easier to subsequently address those claims. This results from the legal principle that once a

17 defendant has been found to have violated anti-discrimination laws, all uncertainties in

18 damages should be resolved against the defendant, and an “unrealistic burden” should not be

19 placed on class members to establish damages. See, e.g., Domingo v. New England Fish Co.,

20 727 F.2d 1429, 1445 (9th Cir. 1984) (holding that, during damages stage of employment

21 discrimination class action, a “court should not put an unrealistic burden on claimants”);

22 United States v. City of Miami, 195 F.3d 1292, 1299 (11th Cir. 1999) (holding that, in

23 determining remedial relief in employment class action, uncertainties in the relief process

24

25

26

12 See United States v. City of New York, --- F.R.D. ----, 2011 WL 2680474, at *10

27

(E.D.N.Y. July 8, 2011) (“Issue certification of bifurcated liability-phase questions is fully consistent with Wal–Mart’s careful attention to the distinct procedural protections attending

28 (b)(2) and (b)(3) classes.”).

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1 should be resolved against the discriminating employer.); Salinas v. Roadway Express, Inc.,

2 735 F.2d 1574, 1578 (5th Cir. 1984).

3

During the damages stage, there are a variety of tools commonly employed in class

4 actions to address management issues. For example:

5

•

The parties can consent to having damages claims heard by a special master or

6

Magistrate Judge. See Rules 53(a)(1)(A) & 73(a).

7

•

Alternatively, the damages process can begin with the submission of claims

8

forms by class members. See Gutierrez v. Wells Fargo & Co., 2009 WL

9

1247040, at *6 (N.D. Cal. May 5, 2009); 3 Newberg on Class Actions

10

(“Newberg”) § 9:64 (4th ed.). Any disputed claims can be addressed by

11

Teamsters hearings, which the Supreme Court expressly identified in Wal-Mart

12

as a method “‘to determine the scope of individual relief.’” 131 S. Ct. at 2561

13

(quoting Teamsters v. United States, 431 U.S. 324, 361 (1977)). Teamsters

14

hearings “have become routine.” Kraszewski v. State Farm Gen. Ins. Co., 912

15

F.2d 1182, 1183 n.1 (9th Cir. 1990).

16

•

Or the Court can hold an initial damages exemplar trial, based on a single

17

restaurant or single type of barrier, which would allow the parties to better

18

evaluate their settlement positions. See 3 Newberg § 9:54.

19

The Court has “broad discretion” to manage damages proceedings. For example, it can

20 limit the time the parties have to put on their case, or it can organize individual trials by

21 restaurant, by barrier or by geographic region. See generally Navellier v. Sletten, 262 F.3d

22 923, 941 (9th Cir. 2001).

23

TBC argues that a Rule 23(b)(3) class “would be impossible to manage,”13 but it does

24 not attempt to undertake the analysis required by that Rule -- comparing the efficiency of

25

26

13 TBC contends, without any substantiation, that there are “potentially over

100,000 class members” who will seek damages in this case. This is a wild exaggeration.

27

During the nine years that this case has been litigated, class counsel have been contacted by approximately 3,000 people and have interviewed approximately 1,100 individuals who claim

28 to have encountered barriers at covered restaurants.

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1 litigating class member damages claims in this action as compared to hundreds of individual

2 actions in courts across the state. See Decert. Motion at 23-24. In addressing superiority, “the

3 proper comparison is not between class litigation and no litigation at all, but between class

4 litigation and actions conducted separately by individual class members.”14

5

The comparison required by Rule 23(b)(3) demonstrates that litigating damages claims

6 in this action is far superior to individual class members litigating their claims in courts across

7 the state. For example:

8

•

Litigating damages claims in this action will permit one court to decide

9

remaining legal issues, while requiring each class member to file an individual

10

action will result in courts across the state addressing the same legal issues,

11

almost assuredly resulting in inconsistent holdings.

12

•

Over the last nine years, the parties in this case have expended an enormous

13

amount of time and resources establishing the factual predicates to liability,

14

including conducting multiple surveys to determine measurements.

15

•

Litigating damages in this proceeding, after liability has been resolved, allows

16

class members and the Court to take advantage of the efficiencies resulting from

17

the principle that uncertainties in damages should be resolved against a

18

defendant who has been found to violate anti-discrimination laws.

19

•

Litigating damages claims in one proceeding will all the Court and parties to

20

take advantage of case management tools unavailable if individual class

21

members must bring their own claims, including organizing damages claims by

22

restaurant, barrier or geographic region.

23

Ultimately, manageability concerns “must be weighed against the alternatives and ‘will

24 rarely, if ever, be in itself sufficient to prevent certification of a class.’” Zeisel v. Diamond

25 Foods, Inc., 2011 WL 2221113, at *11 (N.D. June 7, Cal. 2011) (citations omitted).

26

For these reasons, the class damages claims satisfy Rule 23(b)(3).

27

14 City of New York, 2011 WL 2680474, at *26; see also 2 Newberg § 4:32 (“It is 28 only when [management] difficulties make a class action less fair and efficient than some other
method . . . that a class action is improper.”).

Case No. C 02 05849 PJH (NC)

Plaintiffs’ Memorandum (1) in Support of Motion to Alter and Amend the Class Certification Order and

(2) in Response to Defendant’s Motion for Decertification.

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1

2

CONCLUSION

3

For the reasons set forth above, Plaintiffs respectfully request that the Decertification

4 Motion be denied, and Plaintiffs’ Motion to Alter and Amend the Class Certification Order be

5 granted.

6

Respectfully submitted,

7

FOX & ROBERTSON, P.C.

8

By: /s/ Timothy P. Fox

9

Timothy P. Fox

10 October 19, 2011

Attorneys for Plaintiffs

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GREENBERG TRAURIG, LLP 1 GREGORY F. HURLEY (SBN 126791)
ROGER L. SCOTT (SBN 247165) 2 3161 Michelson Drive, Suite 1000
Irvine, California 92612 3 Telephone: (949) 732-6500
Facsimile: (949) 732-6501 4 Email: hurleyg@gtlaw.com
5 Attorneys for Defendant TACO BELL CORP.
6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 OAKLAND DIVISION
11

12 FRANCIE MOELLER, et al.,
13 Plaintiffs,
14 vs.
15 TACO BELL CORP.,
16 Defendant.
17
18
19

CASE NO. C 02-5849 PJH NC
TACO BELL CORP.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO ALTER AND AMEND CLASS CERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

DATE: TIME:
CTRM: JUDGE:

TBA TBA
3 Hon. Phyllis J. Hamilton

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1 2 I.
II. 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

TABLE OF CONTENTS INTRODUCTION ..................................................................................................................... 1
ARGUMENT ............................................................................................................................ 2
A. The Proposed “Issue” of Classwide Liability for Damages Cannot Be Certified Under Rule 23(b)(2) Through The Application Of A Supposed Rule 23(c)(4) “Issue” Class.................................................................................................................. 2
1. Plaintiffs’ Proposal to Certify an “Issue” of Classwide Liability Contradicts the Holding in Dukes Because Damages For California Disability Claims Are Inextricably Intertwined With Individualized Liability Questions. ............................................................................................ 2
(a) Liability for the State Law Damages Claims at Issue Cannot Be Determined on a Classwide Basis Because It Is Impossible To Make An Across-The-Board Conclusion As To The Recovery Of Damages By Any Class Member. ............................................................................2
(b) The Trier of Fact’s Finding as to the Existence of Architectural Barriers Does Not Ensure That Statutory Minimum Damages Are Warranted. ......5
(c) Plaintiffs Have Abandoned Any Deterrence Theory of Liability. .................5
2. Bifurcation Of “Liability-Phase Questions” Does Not Avoid The Required Individualized Inquiry. ....................................................................................... 6
3. Plaintiffs Have Failed to Identify Any “Issue” Within the Meaning of Rule 23(c)(4). ............................................................................................................. 6
4. Plaintiffs Cannot Avoid Satisfying the Requirements of Rule 23(a) and (b) by Relying on Rule 23(c)(4). .............................................................................. 7
(a) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does Not Meet the Commonality Requirement. .......................................8
(b) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does Not Meet the Typicality Requirement Because a Fact-Specific Inquiry Is Necessary.................................................................................8
(c) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does Not Meet the Adequacy of Representation Requirement..................8
(d) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does Not Meet the Ascertainability Requirement.....................................8
(e) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does Not Meet the Numerosity Requirement. ..........................................9
B. Plaintiffs Failed to Meet Their Burden of Satisfying the Requirements for Certifying the “Issue” of the Damages Recoverable by Each Class Member Under Rule 23(b)(3). ................................................................................................................ 9
1. The Court Does Not Have The Power To Alter The 2004 Class Certification Order To Avoid The Changes In Class Certification Standards Imposed By Dukes. ............................................................................ 9

TABLE OF CONTENTS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 III. 20

2. Plaintiffs Have Not Met Their Burden of Showing a Predominance of Common Issues Over Individual Issues Under Rule 23(b)(3)............................ 11
(a) Legal Standard for Predominance..............................................................11
(b) Predominance Cannot Be Established Because Each Class Member Will Be Required to Testify at Trial to Meet the Requirements of State Law Liability. ........................................................................................12
(i) Class Member Testimony of Deprivation on a Particular Occasion in Compliance with Donald v. Café Royale, Inc. ......... 13
(ii) Class Member Testimony Regarding Purpose in Visit to Store (Tester vs. Bona Fide Patron). .................................................... 15
(c) The Prior ADA Class Action Decisions Cited by Plaintiffs Do Not Address the Various Claims that Require the Individualized Scrutiny of Class Member Claims. .......................................................................16
(d) Plaintiffs Improperly Conflate Commonality with Predominance. .............17
3. Plaintiffs Failed to Meet Their Burden of Showing Superiority......................... 19
(a) A “Realistic Alternative” to a Class Action Exists Via Individual Actions as Demonstrated by the “Current ADA Lawsuit Binge” And Individual Suits Filed By Current Class Representatives And Absent Class Members.......................................................................................19
(b) Plaintiffs Fail To Explain How The Individualized Inquiries Required Can Be Effectively Managed On A Classwide Basis. .............................21
(i) Plaintiffs’ Proposal for Bifurcation or “Innovative Procedural Tools” Cannot Overcome the Fact that Determination of Plaintiffs’ Damages Claims Will Require a Fact-Intensive, Individual Analysis of Each Absent Class Member..................... 22
(ii) The Compliance Status of Alleged Barriers Does Not Avoid The Unmanageability Of Individual Liability Determinations..... 24
CONCLUSION ....................................................................................................................... 25

21

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TABLE OF CONTENTS

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1

TABLE OF AUTHORITIES

2 Federal Cases
3 Amchen Products, Inc. v. Windsor, 4 521 U.S. 591 (1997) ........................................................................................................11, 19, 20, 24
Berlowitz v. Nob Hill Masonic Mngt, Inc., 5 No. C-96-01241 MHP, 1996 WL 724776 (N.D. Cal. Dec. 6, 1996) ....................................................7

6 Blackie v. Barrack,
7 524 F.2d 891 (9th Cir. 1975) ............................................................................................................ 22 Boemio v. Love’s Rest.,
8 954 F. Supp. 204 (S.D. Cal. 1997)......................................................................................................3

9 Brewster v. County of Shasta, 112 F. Supp. 2d 1185 (E.D. Cal. 2000) ...............................................................................................3
10 Broussard v. Meineke Disc. Muffler Shops, Inc.,

11 155 F.3d 331 (4th Cir. 1998) ..............................................................................................................8

12

Brunnen v. Mission Ranch, No. 97-CV-20668JW, 2000 WL 33915634 (N.D. Cal. Dec. 19, 2000).......................................... 5, 24

13 Chapman v. Pier 1 Imports (U.S.) Inc.,
14 631 F.3d 939 (9th Cir. 2011) ............................................................................................................ 15 Charron v. Pinnacle Group N.Y. LLC,
15 269 F.R.D. 221 (S.D.N.Y. 2010) .................................................................................................... 6, 7

16 Cross v. Pacific Coast Plaza Investments, L.P., No. 06 CV 2543 JM (RBB), 2007 WL 951772 (S.D. Cal. Mar. 6, 2007)........................................... 15
17 Cruz v. Dollar Tree Stores,
18 Nos. 07-2050 SC & 07-07-4012 SC, 2011 WL 2682967 (N.D. Cal. July 8, 2011) ............................ 11

19

Dukes v. Wal-Mart Stores, Inc., __ U.S. __, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) .............................................................. passim

20 Gales v. Winco Foods,
21 No. C 09-05813 CRB, 2011 WL 3794887 (N.D. Cal. Aug. 26, 2011)......................................... 11, 13 Harris v. Stonecrest Care Auto Center, LLC,
22 No. 472 F. Supp. 2d 1208 (S.D. Cal. 2007)................................................................................. 15, 16

23 Helm v. Alderwoods Group, Inc., No. C 08-01184 SI, 2009 WL 5206207 (N.D. Cal. Dec. 29, 2009).................................................... 17
24 Holmes v. Continental Can Co.,
25 706 F.2d 1144 (11th Cir. 1983) ..........................................................................................................9

26

In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486 PJH, 2006 WL 1530166 (N.D. Cal. June 5, 2006).............................................. 12, 13

27 Jimenez v. Domino’s Pizza, Inc.,

28 238 F.R.D. 241 (C.D. Cal. 2006) .......................................................................................... 12, 13, 16

TABLE OF AUTHORITIES

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1

Kurihara v. Best Buy Co., No. C 06-01884 MHP, 2007 WL 2501698 (N.D. Cal. Aug. 30, 2007) .............................................. 13

2 Langley v. Coughlin,
715 F.Supp. 522 (S.D.N.Y. 1989).......................................................................................................9 3
Marlo v. United Parcel Service, Inc., 4 251 F.R.D. 476 (C.D. Cal. 2008) .....................................................................................12, 14, 19, 24

5 Moeller v. Cruiseshipcenters, No. C-00-3260 PJH, 2001 WL 34057009 (N.D. Cal. Oct. 9, 2000)................................................... 20
6 Molski v. Evergreen Dynasty Corp., 7 500 F.3d 1047 (9th Cir. 2007) .......................................................................................................... 20

8

Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860 (C.D. Cal. 2004)............................................................................................... 20

9 Norris-Wilson v. Delta-T Group, Inc.,
10 270 F.R.D. 596 (S.D. Cal. 2010) ...................................................................................................... 18 Perry v. U.S. Bank,
11 No. C-00-1799-PJH, 2001 WL 34920473 (N.D. Cal. Oct. 17, 2001) ................................................ 17

12 Pichler v. UNITE, 446 F.Supp. 2d 353 (E.D. Pa. 2006) ................................................................................................. 10
13 Prise v. Alderwoods Group, Inc.,
14 No. 06-1641, 2011 WL 4101145 (W.D. Pa. Sept. 9, 2011) ......................................................... 12, 18

15

Pryor v. Aerotek Scientific, LLC, No. CV 10-06575 MMM (AJWx), 2011 WL 6376703 (C.D. Cal. Nov. 15, 2011) .................. 3, 13, 24

16 Rodriguez v. Gates,

17

No. CV 99-13190 GAF (AJWx), 2002 WL 1162675, 2002 U.S. Dist. LEXIS 10654 (C.D. Cal. May 30, 2002) ............................................................................................................. 3, 20

18 Sepulveda v. Wal-Mart Stores, Inc.,
19 237 F.R.D. 229 (C.D. Cal. May 5, 2006) .......................................................................... 7, 17, 18, 21 Stuart v. Radioshack Corp.,
20 No. C-07-4499 EMC, 2009 WL 281941 (N.D. Cal. Feb. 5, 2009) .................................................... 13

21 Sullivan v. Kelly Servs., Inc., 268 F.R.D. 356 (N.D. Cal. Apr. 27, 2010) ........................................................................................ 12
22 Thayer-Ogden v. Pottery Barn Kids, Inc.,
23 No. RG05-199128, 2006 WL 3378686 (Cal. Super. Ct. Nov. 9, 2006).......................................... 3, 22

24

United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011)..........................................................................................................6

25 Valentino v. Carter-Wallace, Inc.,
26 97 F.3d 1227 (9th Cir. 1996) ...................................................................................................... 19, 20 Vinole v. Countrywide Home Loans, Inc.,
27 571 F.3d 935 (9th Cir. 2009) ...........................................................................................11, 12, 18, 23

28

TABLE OF AUTHORITIES

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1

Washington v. Joe’s Crab Shack, 271 F.R.D. 629 (N.D. Cal. 2010)................................................................................................ 11, 17

2 Weigele v. Fedex Ground Package System, Inc.,
267 F.R.D. 614 (S.D. Cal. 2010) ................................................................................................ 12, 18 3
Wells Fargo Home Mort. Overtime Pay Litig., 4 571 F.3d 953 (9th Cir. 2009) ...................................................................................................... 11, 18

5 Yates v. Belli Deli, No. C 07-01405 WHA, 2007 WL 2318923 (N.D. Cal. Aug. 13, 2007) ............................................. 21
6 Yates v. New Tin’s Market, 7 No. 07-01403 MJJ, 2007 WL 3232243 (N.D. Cal. Oct. 31, 2007)..................................................... 21

8

Yates v. Perko’s Café, No. C 11-00873 SI, C 11-1571, 2011 WL 2580640 (N.D. Cal. June 29, 2011) ................................. 21

9 Yates v. Union Square,
10 No. C 07-04087 JSW, 2008 WL 346418 (N.D. Cal. Feb. 7, 2008).................................................... 21 Zinser v. Accufix Research Inst., Inc.,
11 253 F.3d 1180 (9th Cir. 2001) .......................................................................................................... 19

12 State Cases
13 Donald v. Cafe Royale, Inc., 14 218 Cal. App. 3d 168 (Cal. Ct. App. 1990)................................................................................... 3, 14
Dunbar v. Albertson’s, Inc., 15 141 Cal. App. 4th 1422 (2006) ............................................................................................... 3, 18, 22
16 Duran v. U.S. Bank N.A., __ Cal. App. 4th __, __ Cal. Rptr. 3d __, 2012 WL 366590 (Cal. Ct. App. Feb. 6, 2012).................. 23
17 Reycraft v. Lee,
18 177 Cal. App. 4th 1211 (Cal. Ct. App. 2009)............................................................................. passim
19 Soderstedt v. CBIZ Southern Cal., LLC, 197 Cal. App. 4th 133 (Cal. Ct. App. 2011)...................................................................................... 18
20 Urhausen v. Longs Drug Stores Cal., Inc., 21 155 Cal. App. 4th 254 (Cal. Ct. App. 2007)........................................................................ 3, 4, 16, 24

22 Federal Rules
23 Fed. R. Civ. Proc. 23(a)................................................................................................................. passim
24 Fed. R. Civ. Proc. 23(b)................................................................................................................. passim 25 Fed. R. Civ. Proc. 23(b)(2) ............................................................................................................ passim
Fed. R. Civ. Proc. 23(b)(3) ............................................................................................................ passim 26 Fed. R. Civ. Proc. 23(c)(4) ......................................................................................................... 1, 2, 6, 7 27

28

TABLE OF AUTHORITIES

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1 State Statutes Cal. Civ. Proc. Code § 86(a)(1) ............................................................................................................ 21
2 Cal. Civ. Proc. Code § 94..................................................................................................................... 21 3 Civil Code § 52......................................................................................................................................5
4 Civil Code § 54.3 ........................................................................................................................... 3, 4, 5

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TABLE OF AUTHORITIES

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Plaintiffs’ Motion to Alter and Amend the Class Certification Order (“Motion”) arises from their

4 acknowledgment that the Supreme Court’s ruling in Dukes v. Wal-Mart Stores, Inc., __ U.S. __, 131 S.

5 Ct. 2541, 180 L. Ed. 2d 374 (2011), prevents the certification of any damages class in this case. In an

6 attempt to end-run this obvious conclusion and salvage their case, Plaintiffs seek to create an improper

7 “hybrid” class action by certifying the supposedly separate “issues” of liability and damages for

8 Plaintiffs’ state law claims under different subsections of Rule 23. Ultimately, Plaintiffs’ efforts fail to

9 meet the requirements of either Rule 23(b)(2) or 23(b)(3).

10

Plaintiffs’ Motion fails for at least five reasons. First, Plaintiffs’ attempt to save the admittedly

11 deficient current Rule 23(b)(2) class by arguing that liability for their state law claims can somehow be

12 divorced from damages. What Plaintiffs fail to acknowledge, or even reference, in their Motion is that,

13 under California law, liability and damages for disability claims are inextricably intertwined, requiring

14 not only that a particular feature or “Key Barrier” was non-compliant, but also that the individual

15 plaintiff encountered the feature and was denied equal access by it. Since liability cannot be separated

16 from damages, a Rule 23(b)(2) liability “issue” class cannot be certified.

17

Second, the Court could not even impose such an “issue” because it is bound by the class

18 definition in the operative complaint, which fails to address Plaintiffs’ new theory. Third, reliance on an

19 “issue” under Rule 23(c)(4) does not excuse Plaintiffs from establishing the underlying Rule 23(a) and

20 (b)(2) requirements, which they fail to do.

21

Fourth, Plaintiffs cite no authority that even allows the Court to consider modification of a Rule

22 23(b)(2) class such that the damages portion of the class suddenly becomes certified as a Rule 23(b)(3)

23 damages class in this situation. The Eleventh Circuit has already rejected the use of such “hybrid”

24 classes which attempt to subvert the requirements of Rule 23(b)(3). None of the cases cited by Plaintiff

25 allow the Court modify the existing class to create such a hybrid class absent the agreement of the

26 parties.

27

Finally, Plaintiffs fail to meet either the predominance or superiority requirements imposed

28 under Rule 23(b)(3). Since each class member will be required to prove their own interactions with the

TBC’S OPP’N TO PLS.’ MOT. ALTER

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1 alleged “Key Barriers” to establish liability, all class members will be required to testify, defeating

2 predominance. Class treatment cannot be held superior because the glut of individual disability actions-

3 -including those filed by class representatives and unnamed class members--demonstrates the viability

4 of individual suits as an alternative to class actions. Plaintiffs fail to explain how the individual liability

5 questions at issue could even be determined on a classwide basis. Thus, the Court should deny

6 Plaintiffs’ Motion and decertify the existing Rule 23(b)(2) class.

7

II. ARGUMENT

8 A. 9 10 11

The Proposed “Issue” of Classwide Liability for Damages Cannot Be Certified Under Rule 23(b)(2) Through The Application Of A Supposed Rule 23(c)(4) “Issue” Class.
1. Plaintiffs’ Proposal to Certify an “Issue” of Classwide Liability Contradicts the Holding in Dukes Because Damages For California Disability Claims Are Inextricably Intertwined With Individualized Liability Questions.

12

Plaintiffs seek to litigate the issue as to Taco Bell’s “liability” to each and every class member

13 relating to their state law money damages claims under Rule 23(b)(2) instead of Rule 23(b)(3).

14 However, the U.S. Supreme Court held in Dukes that “claims for individualized relief . . . do not satisfy

15 the Rule [23(b)(2)].” Dukes, 131 S. Ct. at 2557 (Rule 23(b)(2) “does not authorize class certification

16 when each class member would be entitled to an individualized award of monetary damages.”); id. at

17 2558 (“we think it clear that individualized monetary claims belong in Rule 23(b)(3).”). As explained

18 below, Plaintiffs’ state law claims under the Unruh Act or the California Disabled Persons Act

19 (“CDPA”) seek individualized relief or an individualized award of monetary damages. As a result,

20 certification under Rule 23(b)(2) is improper.

21

(a) Liability for the State Law Damages Claims at Issue Cannot Be Determined

on a Classwide Basis Because It Is Impossible To Make An Across-The-

22

Board Conclusion As To The Recovery Of Damages By Any Class Member.

23

Plaintiffs seek to avoid Dukes by implying that classwide liability for the state law damages

24 claims can somehow be determined on a global rather than an individualized basis. As an initial matter,

25 Plaintiffs ignore the required elements for maintaining an Unruh Act or CDPA claim for statutory

26 minimum damages. Specifically, “[T]o maintain an action for damages pursuant to section 54 et seq. an

27 individual must take the additional step of establishing that he or she was denied equal access on a

28

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1 particular occasion.” Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 183, 266 Cal. Rptr. 804 (Cal. 2 Ct. App. 1990) (Merrill, J.)1 see also Boemio v. Love’s Rest., 954 F. Supp. 204, 207 (S.D. Cal. 1997)

3

“This is not merely a question of damages, it is a question of liability.” Pryor v. Aerotek

4 Scientific, LLC, No. CV 10-06575 MMM (AJWx), 2011 WL 6376703, at *15 (C.D. Cal. Nov. 15, 2011)

5 (Morrow, J.) (emphasis added). Such fact specific individual liability and damages questions cannot be

6 determined on a classwide basis. Rodriguez v. Gates, No. CV 99-13190 GAF (AJWx), 2002 WL

7 1162675, at *11, 2002 U.S. Dist. LEXIS 10654, at *40-*41 (C.D. Cal. May 30, 2002) (“[T]here is no

8 way to adjudicate the class members’ claims on a classwide basis-not because damages are individual to

9 each case, but because liability and causation are.”) Courts have considered and rejected an aggregate

10 approach to liability under California law where “each class member would need to establish entitlement

11 to damages as well as the amount of damages.” Dunbar v. Albertson’s, Inc., 141 Cal. App. 4th 1422,

12 1427, 47 Cal. Rptr. 3d 83 (2006); see also, Thayer-Ogden v. Pottery Barn Kids, Inc., No. RG05-199128,

13 2006 WL 3378686, at *4 (Cal. Super. Ct. Nov. 9, 2006) (Sabraw, J.).

14

Further, an individual class member’s claim for damages cannot be adjudicated simply by

15 demonstrating the mere presence of an alleged non-compliant feature. Each class member must show

16 how he or she was personally affected. For example, in Urhausen v. Longs Drug Stores Cal., Inc., 155

17 Cal. App. 4th 254, 266, 65 Cal. Rptr. 3d 838 (Cal. Ct. App. 2007), the plaintiff, who used crutches for

18 mobility, argued that she should be deemed to have been denied equal access because neither the

19 accessible parking space nor the cross-hatched access aisle adjoining it met the applicable slope

20 regulations, leaving her with no accessible route in compliance with the CDPA. Id. at 265. The Court

21 of Appeal rejected the plaintiff’s position as follows:

22

In contrast to section 55, section 54.3 imposes the standing requirement that the plaintiff

23

have suffered an actual denial of equal access before any suit for damages can be brought. In other words, while virtually any disabled person can bring an action to

24

25

1

Incredibly, plaintiffs do not even attempt to distinguish, let alone cite in their initial moving

papers, the Donald decision, which is the leading interpretation of California’s Disabled Persons Act.

26 Plaintiffs’ omission is telling. “[I]n resolving questions of California law, this court is bound by the pronouncement of the California Supreme Court . . . and the opinions of the California Courts of Appeal

27 are merely data for determining how the highest California court would rule . . . [but] the opinion of the

Court of Appeals on questions of California law cannot simply be ignored.” Campbell, 253 F.R.D. at 28 603 n.17 (quoting Brewster v. County of Shasta, 112 F. Supp. 2d 1185, 1188 n.5 (E.D. Cal. 2000)).

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1

compel compliance with the DPA under section 55, a plaintiff cannot recover damages under section 54.3 unless the violation actually denied him or her equal access to some

2

public facility.

3

Plaintiff’s attempt to equate a denial of equal access with the presence of a violation of

federal or state regulations would nullify the standing requirement of section 54.3, since

4

any disabled person could sue for statutory damages whenever he or she encountered

5

noncompliant facilities, regardless of whether that lack of compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s argument would thereby eliminate

6

any distinction between a cause of action for equitable relief under section 55 and a

cause of action for damages under section 54.3, in contravention of the long-standing

7

rule of Donald.

8 Urhausen, 155 Cal. App. 4th at 266 (emphasis added).

9

Similarly, in Reycraft v. Lee, 177 Cal. App. 4th 1211, 99 Cal. Rptr. 3d 746 (Cal. Ct. App. 2009),

10 the Court of Appeal explained “standing under section 54.3 of the DPA is not the same as standing to

11 pursue a claim for injunctive relief under the ADA or the DPA and requires something more than mere

12 awareness of or a reasonable belief about the existence of a discriminatory condition.” Id. at 1221. A

13 plaintiff must show more to demonstrate a right to recover statutory damages than to obtain an

14 injunction:

15

[S]tanding under section 54.3 of the DPA is established where a disabled plaintiff can

show he or she actually presented himself or herself to a business or public place with

16

the intent of purchasing its products or utilizing its services in the manner in which those

products and/or services are typically offered to the public and was actually denied equal

17

access on a particular occasion.

*****

18

If all of the relevant facts only established an awareness of or a reasonable belief about

unequal access, plaintiff’s remedy would be to seek injunctive relief under section 55

19

rather than an award of monetary damages under section 54.3 of the DPA.

Otherwise…there would be no difference between a cause of action for equitable or

20

injunctive relief under section 55 or the ADA and one for monetary damages under

section 54.3.”

21

22 Id. at 1224-1225.2

23

Although Plaintiffs seek to distinguish the state law damages individualized inquiry by

24 characterizing it as pertaining only to the “amount of damages,” (Docket 646-1 at 21:19), Urhausen and

25

26

27 2

Standing under the Unruh Act’s damages provision should be construed in a manner analogous

to section 54.3 of the DPA given the significant areas of overlap between the two statutes. Reycraft, 177 28 Cal. App. 4th at 1227 n.6.

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1 Reycraft make clear that the individualized questions required to prove Plaintiffs’ state law claims

2 pertain to Taco Bell’s liability, not just the “amount of damages.”

3

(b) The Trier of Fact’s Finding as to the Existence of Architectural Barriers

Does Not Ensure That Statutory Minimum Damages Are Warranted. 4

5

Brunnen v. Mission Ranch, No. 97-CV-20668JW, 2000 WL 33915634 (N.D. Cal. Dec. 19, 2000)

6 (Ware, J.) demonstrates the sharp distinction between the mere existence of architectural barriers and

7 whether such architectural barriers caused a particular plaintiff to suffer an actual denial of equal access

8 on a particular occasion. In Brunnen, a jury trial was conducted wherein the jury found several

9 deficiencies in the facilities at issue. Nevertheless, the jury found that the plaintiff had not been denied

10 access as a result of the claimed inadequate features. Id. at *1. Based on the jury’s findings, the district

11 court held that the plaintiff had failed to establish any right to minimum statutory damages. Id. at *3

12 (“Because the jury did not accept Plaintiff’s argument that she was denied full and equal access by

13 Defendants, the Court cannot confer minimum statutory damages.”). Thus, even if the trier of fact finds

14 that architectural barriers existed at the facility at issue, that does not necessarily mean that the

15 requirements for imposing minimum statutory damages have been met.

16

Taco Bell has asserted its right to a jury trial. (Docket #155.) As in Brunnen, the jury must

17 decide whether any particular plaintiff was denied access on a case-by-case basis. Thus, Plaintiffs’

18 assumption that this Court can adjudicate Taco Bell’s liability as to all class claims for statutory

19 minimum damages without engaging in any individualized fact finding relating to a particular class

20 member is simply wrong. Plaintiffs cannot do so without an inquiry into the facts and circumstances of

21 each class member’s experience.

22

(c) Plaintiffs Have Abandoned Any Deterrence Theory of Liability.

23

Plaintiffs in the instant action have expressly waived their entitlement to deterrence-based

24 damages claims under section 52 and 54.3 of the Civil Code. (See Tr. of 5/12/11 H’rg at 42:21-43:2;

25 Final Pretrial Order of 5/16/11 at 3:1-2 [docket #580] (non-opposition to TBC’s motion in limine #8).

26 Since Plaintiffs’ damages claims are not being sought via a deterrence-based theory, each class member

27 must prove that he or she was actually denied equal access on a particular occasion at a particular store

28 in order to have standing to recover damages.

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2. Bifurcation Of “Liability-Phase Questions” Does Not Avoid The Required

1

Individualized Inquiry.

2

Plaintiffs’ reliance upon United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011), for

3 the proposition that issue certification of bifurcated liability-phase questions is appropriate, is misplaced.

4 (Docket 646-1 at 22 n.12); (Docket 607-1 at 4:5-11) Plaintiffs ignore that in that case, the Plaintiffs

5 brought an employment discrimination class action under Title VII based on a pattern-or-practice

6 disparate treatment theory and a disparate impact theory. Under either theory of liability, the district

7 court appropriately applied Second Circuit precedent to find that the interests of the class members were

8 essentially identical during the liability phase. Id. at 35.

9

Here, in contrast, Plaintiffs abandoned their pattern or practice legal theory by failing to raise

10 such theory in connection with the exemplar store trial, and do not make any disparate impact argument.

11 Further, as established above, liability for statutory damages is individualized, unlike the broad based

12 employment theories of City of New York. Thus, City of New York provides absolutely no support for

13 the proposition that issue certification of any liability-phase questions is appropriate in the instant action

14 under Rule 23(b)(2) and 23(c)(4).

15

3. Plaintiffs Have Failed to Identify Any “Issue” Within the Meaning of Rule 23(c)(4).

16

Plaintiffs have failed to identify any specific “issue” within the meaning of Rule 23(c)(4). See

17 Charron v. Pinnacle Group N.Y. LLC, 269 F.R.D. 221, 239 (S.D.N.Y. 2010) (certifying five specific

18 liability issues common to all members of a (b)(3) class). Instead, Plaintiffs seek to maintain

19 certification of the “issue” of “classwide liability” for minimum statutory damages under California law

20 for five so-called “Key Barriers” under Rule 23(c)(4). (Docket 646 at 2:7-10.) The unspecified “issue”

21 of liability to the class members under state law is no different than referring to the individualized

22 monetary claims themselves. Plaintiffs’ effort to cast individualized claims as a separate “issue” is a

23 meaningless attempt to avoid the application of Dukes which bars class treatment of such claims.

24

Even if Plaintiffs identified a cognizable “issue”, the court is bound by the class definition

25 provided in the complaint, which fails to define the class sought as for the “issue” of “classwide 26 liability” for minimum statutory damages under Rule 23(c)(4).3 Berlowitz v. Nob Hill Masonic Mngt,

27 3 Significantly, Plaintiffs have not moved for leave to file a second amended complaint. Even if

28

Plaintiffs were to seek leave to amend now, the unreasonable delay in doing so, after extensive discovery, motion practice and trial, would preclude leave to amend.

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1 Inc., No. C-96-01241 MHP, 1996 WL 724776, at *2 (N.D. Cal. Dec. 6, 1996) (Patel, J.) (rejecting

2 plaintiff’s attempt to seek certification of a class different from that alleged in the complaint; stating that

3 the court was “bound by the class definition provided in the complaint” and that it would “not consider

4 certification of the class beyond the definition provided in the complaint unless Plaintiffs choose to

5 amend it”).

6

4. Plaintiffs Cannot Avoid Satisfying the Requirements of Rule 23(a) and (b) by

Relying on Rule 23(c)(4). 7

8

Plaintiffs falsely believe that, by relying on Rule 23(c)(4), they can avoid their burden of

9 satisfying the requirements of both Rule 23(a) and (b). See Charron v. Pinnacle Group N.Y. LLC, 269

10 F.R.D. 221, 239 (S.D.N.Y. 2010) (“For particular issues to be certified pursuant to Rule 23(c)(4), the

11 requirements of Rules 23(a) and (b) must be satisfied only with respect to those issues.”); Sepulveda v.

12 Wal-Mart Stores, Inc., 237 F.R.D. 229, 250 (C.D. Cal. May 5, 2006) (Fischer, J.) (“Rule 23(c)(4)(A)

13 does not permit a court to bypass the requirements of Rule 23(b)(3) entirely simply by defining the

14 issues for certification narrowly enough.”). Even if Plaintiffs had identified one or more actual “issues”

15 to be certified under (c)(4), the holding in Dukes, which focuses on the relief sought affecting “the entire

16 class at once,” precludes certification under Rule 23(b)(2). Dukes, 131 S. Ct. at 2558.

17

The instant action is analogous to Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229 (C.D. Cal.

18 May 5, 2006) (Fischer, J.). In Sepulveda, the district court denied class certification under both Rule

19 23(b)(2) and (b)(3) as well as a request to certify certain issues under Rule 23(c)(4). On appeal,

20 following the ruling in Dukes, supra, the Ninth Circuit affirmed the denial of class certification under

21 Rule 23(b)(2). Sepulveda v. Wal-Mart Stores, Inc., No. 06-56090, 2011 WL 6882918, at *1 (9th Cir.

22 Dec. 30, 2011) (mem.) (“In Dukes[,] the Court explicitly adopted the ‘not incidental’ test for

23 certification under Rule 23(b)(2).”). In addition, in light of the denial of class certification under Rule

24 23(b)(2), the Ninth Circuit also applied the Rule 23(b)(2) standards to affirm the denial of class 25 certification for limited purposes under Rule 23(c)(4). Id. at *1.4 Plainitffs’ proposed “issue” class fails

26 to meet the applicable Rule 23(a) and 23(b) standards.

27 4 Although the Ninth Circuit initially instructed the district court to reconsider, in the alternative, using

28 Rule 23(c)(4) to certify specific issues under the Rule 23(b)(2) standard, the Ninth Circuit ultimately held that “it is no longer necessary or possible for the district court to consider severing particular issues

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(a) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does

1

Not Meet the Commonality Requirement.

2

The merits of a claim should not be litigated via the class certification motion unless it overlaps

3 with the requirements for satisfying the class certification requirements. Dukes, 131 S.Ct. at 2251-2252.

4

Here, Plaintiffs cannot demonstrate commonality as to their proposed “liability” class because,

5 as explained above, damages liability on Plaintiffs’ state law claims are inextricably intertwined with

6 each individual’s interaction with a particular alleged barrier. As a result, commonality cannot be

7 established.

8

(b) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does

Not Meet the Typicality Requirement Because a Fact-Specific Inquiry Is

9

Necessary.

10

Plaintiffs have failed to meet the typicality requirement because a fact-specific inquiry shall be

11 required to address the so-called “issue” of classwide liability for state law damages. Broussard v.

12 Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342–44 (4th Cir. 1998) (holding that individualized

13 damages will preclude typicality where a fact-specific inquiry is necessary).

14

(c) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does

Not Meet the Adequacy of Representation Requirement. 15

16

As addressed in the concurrently-filed reply brief, the named Plaintiffs are refusing to prosecute

17 the action vigorously with respect to the entire class by seeking to abandon the adjudication of numerous

18 barriers, which the absent class members will be unable to relitigate under the doctrine of res judicata.

19 (See Reply Br. at p.18)

20

(d) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does

Not Meet the Ascertainability Requirement. 21

22

As addressed in the concurrently-filed Reply Brief, the proposed Rule 23(b)(2) “issue” does not

23 meet the ascertainability requirement. (Reply Br. at 3)

24

25

26

27 for class treatment” “[b]ecause we now affirm denial of class certification under Rule 23(b)(2).” Id. at
28 *1.

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(e) The Proposed Rule 23(b)(2) “Issue” of Classwide Liability for Damages Does

1

Not Meet the Numerosity Requirement.

2

As addressed in the concurrently-filed Reply Brief, the proposed Rule 23(b)(2) “issue” does not

3 meet the numerosity requirement. (Reply Br. at 3)

4 B. 5

Plaintiffs Failed to Meet Their Burden of Satisfying the Requirements for Certifying the “Issue” of the Damages Recoverable by Each Class Member Under Rule 23(b)(3).

6

Plaintiffs’ proposed division of this class action into a “hybrid” class action wherein classwide

7 injunctive relief is sought under Rule 23(b)(2) and damages are sought under Rule 23(b)(3) is improper.

8 While such a “hybrid” class can exist, the Eleventh Circuit has already warned against attempting what

9 Plaintiffs propose:

10

“[It is] possible to create hybrids in given cases. Since in theory there should be no hard

requirement that (b)(2) be mutually exclusive, and since subpart (c)(4)(A) allows an

11

action to be maintained ‘with respect to particular issues,’ the fact that damages are

sought as well as an injunction or declaratory relief should not be fatal to a request for a

12

(b)(2) suit, as long as the resulting hybrid case can be fairly and effectively managed.

On the other hand, the policies underlying the requirements of (b)(3) should not be

13

subverted by recasting and bifurcating every class suit for damage as one for final

declaratory relief of liability under (b)(2) followed by a class suit for damages under

14

(b)(3).”

15 Holmes v. Continental Can Co., 706 F.2d 1144, 1158 (11th Cir. 1983) (emphasis added). This is exactly

16 what Plaintiffs attempt here.

17

Under Rule 23(b)(3), a class can be certified only if “the court finds that the questions of law or

18 fact common to the members of the class predominate over any question affecting only individual

19 members, and that a class action is superior to other available methods for the fair and efficient

20 adjudication of the controversy.” Rule 23(b)(3). As discussed, Plaintiffs fail to meet these standards.

21 As a result, the proposed Rule 23(b)(3) class cannot be certified.

22

1. The Court Does Not Have The Power To Alter The 2004 Class Certification Order

To Avoid The Changes In Class Certification Standards Imposed By Dukes. 23

24

Plaintiffs’ argument that the Court can create a hybrid class by altering the basis for only part of

25 the class from Rule 23(b)(2) to 23(b)(3) is unsupported by anything in the Rules themselves. None of

26 the cases cited by Plaintiff allow for the creation of a “hybrid” class as part of a modification motion.

27

Further, Plaintiffs’ cited pre-Dukes case law is readily distinguishable and inapplicable in a post-

28 Dukes context. For example, in Langley v. Coughlin 715 F.Supp. 522 (S.D.N.Y. 1989) the request to

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1 change the Rule 23(b) grounds for the class arose from a settlement of the injunctive relief claims which

2 left only compensatory and punitive damages claims which could not be certified under the then-

3 prevailing Rule 23(b)(2) “predominance” test. Id. at 551. Essentially, the Court allowed for a shift in

4 the basis for the class based on a changed set of circumstances created by the parties. In that

5 circumstance, modifying the statutory basis for the class did not require the plaintiffs to “carry precisely

6 the same burden as when they originally sought certification” because “[s]ince the Rule 23(a) standards

7 are preconditions for any form of class certification, this Court’s 1985 certification order necessarily

8 reflects the appropriate findings.” Id. at 552-553.

9

Here, Plaintiffs’ Motion to Amend admits that this Court’s original 2004 certification order does

10 not “necessarily reflect[] the appropriate findings” because the Supreme Court’s intervening decision in

11 Dukes significantly altered the relevant considerations on class certification. Notably, under Dukes,

12 Coughlin’s Rule 23(b)(2) damages class could not have been certified in the first place. Dukes, 131

13 S.Ct. at 2557-2559. Plaintiffs’ reliance on a footnote in Pichler v. UNITE, 446 F.Supp. 2d 353 (E.D. Pa.

14 2006) is similarly misplaced because, in that case, the Court had previously analyzed and approved a

15 class under the stringent standards of Rule 23(b)(3), and shifted the basis to the less exacting Rule 16 23(b)(1)(A) standards by agreement of the parties. Id. at 365 n.37.5

17

Finally, in Rowell v. Voortman Cookies, Ltd., 2005 WL 2266607 (N.D. Ill. 2005), the defendant

18 sought, not to decertify the class, but to amend it on the ground that the court previously erred in

19 certifying the matter under Rule 23(b)(1)(A). Id. at *3. The plaintiffs in that matter essentially

20 conceded the issue, filing only a four page opposition solely on the ground that the motion to amend was

21 an improper motion to reconsider the court’s certification order. [02-cv-00681; Document 77, attached

22 hereto as Exhibit 1] In sum, Plaintiffs have submitted no authority permitting a plaintiff to alter the

23 Rule 23 grounds for the class absent a settlement or other agreement of the parties.

24

25

26 5 Plaintiffs fail to acknowledge that the statute at issue in Pichler allowed for recovery of minimum 27 damages without the showing of any actual damage. Pichler v. UNITE, 228 F.R.D. 230, 257-258 (E.D.
Pa. 2005). As addressed above, Plaintiffs’ state law claims require each class member to demonstrate 28 they actually encountered a barrier and were denied equal access.

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2. Plaintiffs Have Not Met Their Burden of Showing a Predominance of Common

1

Issues Over Individual Issues Under Rule 23(b)(3).

2

(a) Legal Standard for Predominance.

3

The predominance requirement in Rule 23(b)(3) is “far more demanding” than the Rule 23(a)

4 commonality requirement. Amchen Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231

5 (1997); see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). “[T]he presence of

6 commonality alone is not sufficient to fulfill Rule 23(b)(3).” Hanlon, 150 F.3d at 1022; Gales v. Winco

7 Foods, No. C 09-05813 CRB, 2011 WL 3794887, at *2, *6 (N.D. Cal. Aug. 26, 2011) (Breyer, J.)

8 (concluding that whether the employer had correctly classified the job duties of a group of employees as

9 exempt was a common question, but that predominance was not satisfied because determining whether

10 each class member spent the majority of his or her time performing exempt duties required an

11 individualized inquiry).

12

“[W]hile Rule 23(a)(2) ‘is about invoking common questions, . . . Rule 23(b)(3) requires a

13 district court to formulate some prediction as to how specific issues will play out in order to determine

14 whether common or individual issues predominate in a given case.’” Washington v. Joe’s Crab Shack,

15 271 F.R.D. 629, 638 (N.D. Cal. 2010) (Hamilton, J.) (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d

16 571, 593 (9th Cir. 2010), rev’d on other grounds by Dukes, 131 S. Ct. 2541) (emphasis added).

17

“The predominance inquiry of Rule 23(b)(3) asks ‘whether proposed classes are sufficiently

18 cohesive to warrant adjudication by representation.’” In re Wells Fargo Home Mort. Overtime Pay

19 Litig., 571 F.3d 953, 957 (9th Cir. 2009); Amchen Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.

20 Ct. 2231 (1997). “The overarching focus” of the predominance inquiry is “whether trial by class

21 representation would further the goals of efficiency and judicial economy.” Vinole v. Countrywide

22 Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) (Callahan, J.). “Among the issues central to the

23 predominance inquiry is whether the case, if tried, would present intractable management problems.”

24 Cruz v. Dollar Tree Stores, Nos. 07-2050 SC & 07-07-4012 SC, 2011 WL 2682967, at *3 (N.D. Cal.

25 July 8, 2011) (Conti, J.) (citing Rule 23(b)(3)(D)); Amchen Products, Inc. v. Windsor, 521 U.S. 591,

26 620, 117 S. Ct. 2231 (1997) (“intractable management problems” must be considered if a class is being

27 certified for trial rather than settlement).

28

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1

“To satisfy this requirement, it is not enough simply that common questions of law or fact exist;

2 predominance is a comparative concept that calls for measuring the relative balance of common issues

3 to individual ones.” Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 483 (C.D. Cal. 2008)

4 (emphasis added). “[W]hen individualized issues or determinations become central to a case, the class

5 action no longer advances the efficiency and economy for which it was intended.” Id. at 484 (emphasis

6 added). “One way this can happen is when a plaintiff brings a claim on a class-wide basis that raises

7 individualized issues, but fails to provide common proof that would have allowed a jury to determine

8 those issues on a class-wide basis.” Id. at 485. If individual testimony from absent class members is

9 required to address individualized inquiries, then the trial may become an unmanageable set of mini-

10 trials. Id. at 486.

11

“To determine whether the predominance requirement is satisfied, ‘courts must identify the

12 issues involved in the case and determine which are subject to ‘generalized proof, and which must be the

13 subject of individualized proof.’” Sullivan v. Kelly Servs., Inc., 268 F.R.D. 356, 364 (N.D. Cal. Apr. 27,

14 2010) (Wilken, J.) (quoting In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-

15 1486 PJH, 2006 WL 1530166, at *6 (N.D. Cal. June 5, 2006) (Hamilton, J.)); see also, Jimenez v.

16 Domino’s Pizza, Inc., 238 F.R.D. 241, 251 (C.D. Cal. 2006) (Selna, J.). “Because no precise test can

17 determine whether common issues predominate, the Court must pragmatically assess the entire action

18 and the issues involved.” Weigele v. Fedex Ground Package System, Inc., 267 F.R.D. 614, 620 (S.D.

19 Cal. 2010) (Sammartino, J.) (emphasis added).

20

“The party seeking certification bears the burden of demonstrating that he has met the

21 requirements of Rule 23(b).” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 n.9 (9th Cir.

22 2009) (Callahan, J.).

23

(b) Predominance Cannot Be Established Because Each Class Member Will Be

Required to Testify at Trial to Meet the Requirements of State Law Liability.

24

25

Although Plaintiffs imply that Taco Bell’s defenses relate solely to the issue of calculating the

26 amount of damages for each absent class member, courts in similar contexts have rejected attempts to

27 ignore the preliminary issue of liability, i.e., whether a violation occurred. Prise v. Alderwoods Group,

28 Inc., No. 06-1641, 2011 WL 4101145, at *22 (W.D. Pa. Sept. 9, 2011) (Conti, J.) (“Only after liability is

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1 found can the court determine the amount owed to each opt-in plaintiff in a damages phase of a trial.”).

2

Individualized questions as to whether there is liability owed to class members results in the

3 absence of predominance. Pryor v. Aerotek Scientific, LLC, No. CV 10-06575 MMM (AJWx), 2011

4 WL 6376703, at *15 (C.D. Cal. Nov. 15, 2011) (Morrow, J.) (“This is not merely a question of

5 damages, it is a question of liability.”) (emphasis added); Jimenez v. Domino’s Pizza, Inc., 238 F.R.D.

6 241, 253 (C.D. Cal. 2006) (Selna, J.) (“In sum, this is not the typical case where a class can be certified

7 because the class members’ duties are, or can be determined to be, roughly identical, despite the need

8 for individual damage determinations based on the number of hours worked. Here the variability goes

9 to whether an individual class member has any claim at all for misclassification.”) (emphasis added).

10 “[C]ourts are . . . decidedly less willing to certify classes where individualized inquiries are necessary to

11 determine liability.” Kurihara v. Best Buy Co., No. C 06-01884 MHP, 2007 WL 2501698, at *9 (N.D.

12 Cal. Aug. 30, 2007) (Patel, J.), quoted in Gales v. Winco Foods, No. C 09-05813 CRB, 2011 WL

13 3794887, at *7 (N.D. Cal. Aug. 26, 2011) (Breyer, J.), and Stuart v. Radioshack Corp., No. C-07-4499

14 EMC, 2009 WL 281941, at *18 (N.D. Cal. Feb. 5, 2009) (Chen, Mag. J.).

15

The right to cross-examine a class member to determine whether there is liability as to that

16 specific person cuts against predominance and superiority. Jimenez, 238 F.R.D. at 253 (“[Employer]

17 has a right to cross-examine each general manager to determine whether there is liability as to that

18 specific person.”).

19

As part of the predominance inquiry, this court has previously held that the issues to be

20 adjudicated in the case must be identified during the class certification motion and that the issues that

21 are subject to “generalized proof” and “individualized proof” must be determined. In re Dynamic

22 Random Access Memory, 2006 WL 1530166, at *6. Plaintiffs have failed to identify or acknowledge

23 the following issues that are subject to individualized proof, thereby precluding the adjudication of the

24 absent class members’ state law damages claims by representation.

25

(i) Class Member Testimony of Deprivation on a Particular Occasion in

Compliance with Donald v. Café Royale, Inc.

26

27

In order for an absent class member to prevail on either of the state law claims for damages, he

28 or she must testify at trial in order to establish that he or she encountered a barrier that hindered or

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1 deprived his or her full and equal access on a particular occasion. Donald v. Cafe Royale, Inc., 218 Cal.

2 App. 3d 168, 183, 266 Cal. Rptr. 804 (Cal. Ct. App. 1990) (Merrill, J.) As recognized in Reycraft, the

3 standing requirement set forth in Donald for any CDPA claim constitutes an issue of liability, in and of

4 itself, and not merely of the amount of damages. Reycraft, 177 Cal. App. 4th at 1218.

5

Plaintiffs have taken the position that Unruh or CDPA statutory damages should be “recovered

6 only by class members who were harmed by this conduct [directed toward the class].” (Pls.’ Br. in

7 Opp’n to Def.’s Mot. For Mod. Of Class Def. of 11/9/04 at 15:3-4; docket #122-1.) To prove that harm

8 under Donald and Reycraft, each class member must testify and be cross-examined not only on the

9 number of visits, but also on whether they experienced unequal access on each visit to each store. Any

10 attempt to extrapolate damages based on the experiences of a subset of class members would be

11 speculative. See Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 486 (C.D. Cal. 2008).

12

In their depositions, class members have testified about a varying number of store visits and

13 different experiences on different visits to different stores. For example, Warren Duckstein, a class

14 member identified by Plaintiffs, apparently never experienced unequal access at Taco Bell. He does not

15 even like Taco Bell, he only visited because his late wife liked it. [Exhibit 2, Duckstein Depo at 35:5-

16 14] While he saw queue lines, he never tried to navigate them because he never ordered food. [Exhibit

17 2, Duckstein Depo at 33:11-34:12; 45:9-11] He would sit at a table while his wife ordered her own

18 food. [Exhibit 2; Duckstein Depo at 35:15-36:1; 45:12-14] He did not have trouble finding accessible

19 seating [Exhibit 2; Duckstein Depo at 34:19-35:3; 47:9-11]. And he cannot recall ever having problems

20 using the restroom or restroom amenities at a Taco Bell. [Exhibit 2; Duckstein Depo at 36:22-37:10;

21 46:13-21] His only potential claim for any of the “Five Key Barriers” is for door force, but he

22 personally never tried to open the door because “my wife waited on me hand and foot.” [Exhibit 2;

23 Duckstein Depo at 32:14-24; 36:19; 44:10-12]

24

The fact that Plaintiffs identified and produced for deposition a class member who never suffered

25 from unequal access based on any of the “Five Key Barriers” demonstrates that Plaintiff have no viable

26 way of addressing the disparity among class members’ experiences without an individualized inquiry.

27

Taco Bell was only permitted to take the depositions of thirty-five (35) out of the 3,000 class

28

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1 members who have already contacted Plaintiffs’ counsel.6 [Docket 659 at 1:28-2:1; Docket 646-1 at

2 p.23 fn13] It can reasonably be assumed that more Mr. Ducksteins exist in that large pool of plaintiffs.

3

The disparity among class members alleged barrier claims is further exemplified by the

4 deposition matrix analyzing the testimony of twenty-nine (29) unnamed class member depositions class 5 member depositions taken to date.7 [Exhibit 3] The testimony illustrates that something that might be

6 perceived as an architectural barrier for one person is not necessarily a barrier to another. Thus, liability

7 cannot be imposed without examining the specific claims of each and every class member.

8

(ii) Class Member Testimony Regarding Purpose in Visit to Store (Tester

vs. Bona Fide Patron). 9

10

Besides the requirements of Donald, Plaintiffs must demonstrate that class members were not

11 visiting Taco Bell stores as “testers.” I]f a plaintiff’s sole purpose in visiting an establishment were to

12 check for ADA violations, he would be simply a ‘tester’ rather than a bona fide patron, and would

13 therefore lack standing.” Harris v. Stonecrest Care Auto Center, LLC, No. 472 F. Supp. 2d 1208, 1218

14 (S.D. Cal. 2007) (Burns, J.) . “Testers who do not suffer personal injury lack standing to bring a

15 discrimination claim.” Cross v. Pacific Coast Plaza Investments, L.P., No. 06 CV 2543 JM (RBB),

16 2007 WL 951772, at *2 (S.D. Cal. Mar. 6, 2007) (Miller, J.)

17

Taco Bell is entitled to insist that each class member meet his or her “constitutionally imposed

18 burden of demonstrating an injury-in-fact” by proving that he or she was acting as a bona fide patron

19 during their particular store visit instead of as a “tester.” Chapman v. Pier 1 Imports (U.S.) Inc., 631

20 F.3d 939, 953 (9th Cir. 2011) (en banc) (Wardlaw, J.)

21

For example, class member Robert Mansfield appeared at his deposition not because he is a Taco

22 Bell class member seeking relief but because, “I’m here to help, you know, these attorneys, you know,

23 fight for disability rights and access.” [Exhibit 4; Mansfield Depo at 11:3-12:4] Further, even though

24

25 6 The thirty-five (35) depositions included the four named class representatives, leaving only thirty-one (31) potential unnamed class member depositions.
26 7 Despite Plaintiffs’ counsel’s representations that Patsy Pattorroyo was in contact with Plaintiffs’ 27 counsel and would appear for her deposition on two (2) separate occasions, Ms. Pattorroyo failed to
appear at either scheduled deposition. Neal Davidson was properly served with a subpoena, but failed to 28 appear.

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1 Mansfield recognized changes at his local Taco Bell, including remodeled queue lines, he never

2 attempted to use the new queue lines because “I avoid queue lines wherever possible…I really have a lot

3 of disdain for queue lines.” [Exhibit 4; Mansfied Depo at 19:11-20:15] This sort of testimony raises

4 questions as to whether Mr. Mansfield is a bona fide patron, or simply a “tester” who helps attorneys

5 prosecute actions out of malice for queue lines without determining whether they actually affected his

6 access.

7

Determining whether class members such as Mr. Manfield were bona fide patrons would

8 inherently require an inquiry into the credibility of class members which causes questions and issues of

9 proof to be individualized, barring a determination of predominance. Jimenez v. Domino’s Pizza, Inc.,

10 238 F.R.D. 241, 252 (C.D. Cal. 2006) (Selna, J.).

11

(c) The Prior ADA Class Action Decisions Cited by Plaintiffs Do Not Address

the Various Claims that Require the Individualized Scrutiny of Class

12

Member Claims.

13

Although Plaintiffs claim in conclusory fashion that there are “dozens” of multiple certified class

14 actions regarding disability rights, (Pls.’ Mot. at 7:2), Plaintiffs have failed to cite to a single case

15 wherein a court analyzed Donald, Urhausen, Harris, and Reycraft to determine whether the individual

16 testimony of class members would need to be heard in order to establish a defendant’s state law liability

17 for money damages under the Unruh Act or CDPA (e.g., Did each class member seeking damages have

18 a personal encounter with a facility that deprived such class member of full and equal access on a

19 particular occasion?). Thus, the cases cited by Plaintiffs are all distinguishable. Those cases are also

20 distinguishable because the courts did not have the benefit of the U.S. Supreme Court’s guidance in

21 Dukes regarding the commonality requirement and the “rigorous analysis” of Rule 23(a) factors.

22

Not surprisingly, Plaintiffs have failed to cite a single instance wherein a federal district court

23 has certified both a Rule 23(b)(2) injunctive relief class and a separate Rule 23(b)(2) “issue” as to

24 classwide liability for state law damages simultaneously in the Title III ADA context. The reason for

25 such omission is that such case authority does not exist, especially in a post-Dukes context.

26

Based on Plaintiffs’ theory of liability under the CDPA, there is no class recovery of any

27 aggregate award of damages to the class as a whole. Plaintiffs have cited no case authority wherein an

28 aggregate award of damages has been awarded to an entire class after litigation (i.e., adjudication on the

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1 merits as opposed to a class settlement). Thus, Plaintiffs appear to concede that awarding damages to

2 the absent class members in this case requires an individualized analysis.

3

(d) Plaintiffs Improperly Conflate Commonality with Predominance.

4

In arguing in favor of predominance, Plaintiffs rely upon the allegedly common question relating

5 to whether Taco Bell’s actual practices were consistent with its current access policies. (Pls.’ Mot. at

6 9:10-11, 21:3-5.) In so doing, Plaintiffs conflate the standard for commonality with predominance.

7 Perry v. U.S. Bank, No. C-00-1799-PJH, 2001 WL 34920473, at *7 (N.D. Cal. Oct. 17, 2001) (finding

8 that Rule 23(a)(2) was satisfied but Rule 23(b)(3) was not), cited in Sepulveda v. Wal-Mart Stores, Inc.,

9 237 F.R.D. 229, 242 (C.D. Cal. May 5, 2006) (Fischer, J.).

10

This case is analogous to Washington v. Joe’s Crab Shack, 271 F.R.D. 629 (N.D. Cal. 2010)

11 (Hamilton, J.), wherein the named plaintiff cited alleged common policies regarding wage and hour

12 issues in a putative class action:

13

Plaintiff’s position is that common questions predominate because the main issue is

whether--notwthstanding [employer’s] written policies--Joe’s Crab Shack restaurants in

14

California followed a common unwritten policy of denying meal and rest breaks, failing

to pay for overtime, requiring employees to purchase their own uniforms, and so forth.

15

However, this argument confuses the question of the existence of common issues of law

and fact, with the question of whether common questions predominate over individual

16

questions.

17 Id. at 640 (emphasis added).

18 Because the alleged policies were unwritten, the court held that the individualized assessments as to why

19 class members behaved the way that they did precluded a predominance finding. Id. at 641-642.

20

The district court’s holding in Helm v. Alderwoods Group, Inc., No. C 08-01184 SI, 2009 WL

21 5206207 (N.D. Cal. Dec. 29, 2009) (Illston, J.), is directly on point. In that case, the district court

22 refused to certify any of the eight (8) subclasses in a nationwide wage and hour class action premised

23 upon eight (8) company-wide policies of a business providing funerary services. Significantly, the

24 district court held a lack of predominance for any of the subclasses largely based on the need to inquire

25 on an individual basis whether each of the employer’s funeral home locations implemented the

26 purported unlawful policy. Id. at *9-*11.

27

Here, Plaintiffs have failed to reference or submit any evidence with their motion papers

28 regarding any unlawful access-related policy implemented at each and every corporate-owned Taco Bell

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1 store in the State of California. Although this Court has relied upon the existence of an alleged “policy”,

2 no specific policy document has been cited by the Court. Even if Plaintiffs had demonstrated such a

3 policy, more is required: “a district court abuses its discretion in relying on an internal [ ] policy to the

4 near exclusion of other factors relevant to the predominance inquiry.” Vinole v. Countrywide Home

5 Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009); see, In re Wells Fargo Home Mort. Overtime Pay Litig.,

6 571 F.3d 953, 959 (9th Cir. 2009); Soderstedt v. CBIZ Southern Cal., LLC, 197 Cal. App. 4th 133, 153,

7 127 Cal. Rptr. 3d 394 (Cal. Ct. App. 2011) (citing Vinole); Dunbar v. Albertson’s, Inc., 141 Cal. App.

8 4th 1422, 1427, 47 Cal. Rptr. 3d 83 (2006).

9

At most, Plaintiffs’ current theory of liability seeks to demonstrate that some access-related

10 policies at issue “were implemented in an ad hoc, decentralized manner depending upon the

11 individualized circumstances at each…location and the management practices at that location.” Prise v.

12 Alderwoods Group, Inc., No. 06-1641, 2011 WL 4101145, at *19 (W.D. Pa. Sept. 9, 2011) (Conti, J.)

13 (emphasis added). Thus, an individualized inquiry would need to be conducted as to the actual access-

14 related management practices taking place at over 200 company-owned stores throughout the State of 15 California.8

16

Since the propriety of class certification must be analyzed claim-by-claim, the existence of

17 common issues relating to the ADA claim for injunctive relief has no bearing as to the certification of

18 the state law damages claim at issue. See, e.g., Norris-Wilson v. Delta-T Group, Inc., 270 F.R.D. 596,

19 612 (S.D. Cal. 2010) (Burns, J.) (“The overtime, wage statement, and waiting time claims are suitable

20 for class-wide treatment, but the meal and rest break and reimbursement claims aren’t.”). “Once these

21 common questions have been answered, many highly individualized questions remain.” Sepulveda v.

22 Wal-Mart Stores, Inc., 237 F.R.D. 229, 247 (C.D. Cal. May 5, 2006) (Fischer, J.) Thus, in light of the

23 extensive individualized issues present in the state law analysis, any common issues related to injunctive

24 relief “are a relatively minor portion of this litigation.” Weigele v. Fedex Ground Package System, Inc.,

25 No. 06-CV-1330-JLS (POR), 267 F.R.D. 614, 622 (S.D. Cal. 2010) (Sammartino, J.).

26

27 8 Some Taco Bell policies Plaintiffs challenge, such as regularly scheduled independent inspections,
28 exceed any requirements imposed by law.

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1

Further, “Defendant’s common processes and training are not overwhelmingly supportive of a

2 finding that common issues predominate.” Id. at 622. Thus, any reliance upon Taco Bell’s “policies”

3 does absolutely nothing to facilitate common proof on the otherwise individualized issue as to whether a

4 particular class member seeking to recovery statutory minimum damages was actually denied full and

5 equal access on a particular occasion.

6

3. Plaintiffs Failed to Meet Their Burden of Showing Superiority.

7

“In addition to the predominance requirement, a class action must be superior to other methods

8 of adjudicating the controversy.” Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 487 (C.D. Cal.

9 2008) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1235 (9th Cir. 1996)). “A class action is

10 the superior method for managing litigation if no realistic alternative exists.” Valentino, 97 F.3d at

11 1234-35. “In determining superiority, courts must consider the four factors of Rule 23(b)(3).” Zinser v.

12 Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). Those factors are:

13

(A) the class members’ interests in individually controlling the prosecution or defense of

separate actions;

14

(B) the extent and nature of any litigation concerning the controversy already begun by or

against class members;

15

(C) the desirability or undesirability of concentrating the litigation of the claims in the

particular forum; and

16

(D) the likely difficulties in managing a class action.”

17 (Fed. R. Civ. P. 23(b)(3)).

18

Plaintiffs have completely ignored all four factors.

19

(a) A “Realistic Alternative” to a Class Action Exists Via Individual Actions as

Demonstrated by the “Current ADA Lawsuit Binge” And Individual Suits

20

Filed By Current Class Representatives And Absent Class Members.

21

One of the primary goals of the class action procedure is to vindicate the rights of absent class

22 members in cases in which there is otherwise little or no incentive to bring any solo action:

23

“The policy at the very core of the class action mechanism is to overcome the problem

that small recoveries do not provide the incentive for any individual to bring a solo

24

action prosecuting his or her rights. A class action solves this problem by aggregating

the relatively paltry potential recoveries into something worth someone’s (usually an

25

attorney’s) labor.”

26 Amchen Products, Inc. v. Windsor, 521 U.S. 591, 617, 117 S. Ct. 2231 (1997) (emphasis added);

27 see also Sav-on, 34 Cal. 4th at 340 (a class action “provides small claimants with a method of

28 obtaining redress for claims which would otherwise be too small to warrant individual

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1 litigation”). Conversely, where clear incentives exist for individual actions, class certification is

2 inappropriate.

3

Here, class treatment is inappropriate because both the ADA and California state law

4 disability statutes provide an incentive for individual litigation so strong that courts have

5 lamented the “explosion of private ADA-related litigation” and “[t]he current ADA lawsuit

6 binge.” Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004) and

7 Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1280-82 (M.D. Fla. 2004) Obviously, such

8 an “explosion” of disability related cases could not exist if the economics of pursuing ADA

9 litigation presented a significant burden upon individual litigants. Since a “realistic alternative

10 exists” to the class action procedure, the class action procedure is not superior to other methods

11 of adjudication. Valentino, 97 F.3d at 1234-1235.

12

Although Plaintiffs rely heavily upon Lucas v. Kmart Corp., 2006 WL 722163 (D. Colo. Mar.

13 22, 2006), as an example of a Rule 23(b)(3) class certification of statutory minimum damages claims, its

14 superiority analysis is distinguishable for two (2) reasons. First, certification in Lucas was decided as

15 part of a proposed settlement, not a contested Motion. Id. at *1. Plaintiffs ignore that, in the settlement

16 context, the superiority analysis is given little weight: “Confronted with a request for settlement-only

17 class certification, a district court need not inquire whether the case, if tried, would present intractable

18 management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial.”

19 Amchen Products, Inc. v. Windsor, 521 U.S. 591, 620, 117 S. Ct. 2231 (1997)

20

Second, the Colorado statutes at issue in Lucas provided little monetary relief to individual

21 plaintiffs. The court noted that the amounts at stake for individuals were as little as fifty dollars and

22 “only rarely over eight thousand dollars,” rendering “most individual suits impracticable.” Lucas v.

23 Kmart Corp., 2006 WL 722163 at *5. In contrast, California courts have recognized that individual

24 Unruh and DPA claims frequently exceed $1 million. Molski v. Evergreen Dynasty Corp., 500 F.3d

25 1047, 1060 (9th Cir. 2007) (per curiam); Mandarin Touch Rest., 347 F.Supp.2d 860, 863 (C.D. Cal.

26 2004) (“[A] lawsuit is filed, requesting damages that would put many of the targeted establishments out

27 of business.”) Thus, Lucas offers no support for Plaintiffs’ position especially as to the superiority

28 requirement in the ADA class action context.

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1

Emphasizing the feasibility of individual actions as an alternative, some of the named class

2 representatives have filed numerous claims to vindicate their disability rights. See, e.g., Moeller v.

3 Cruiseshipcenters, No. C-00-3260 PJH, 2001 WL 34057009 (N.D. Cal. Oct. 9, 2000) (Hamilton, J.);

4 Yates v. Perko’s Café, No. C 11-00873 SI, C 11-1571, 2011 WL 2580640 (N.D. Cal. June 29, 2011)

5 (Illston, J.); Yates v. Union Square, No. C 07-04087 JSW, 2008 WL 346418 (N.D. Cal. Feb. 7, 2008);

6 Yates v. New Tin’s Market, No. 07-01403 MJJ, 2007 WL 3232243 (N.D. Cal. Oct. 31, 2007); Yates v.

7 Belli Deli, No. C 07-01405 WHA, 2007 WL 2318923 (N.D. Cal. Aug. 13, 2007). In fact, in Yates v.

8 Belli Deli, No. C 07-01405 WHA, 2007 WL 2318923 (N.D. Cal. Aug. 13, 2007) (Alsup, J.), the district

9 court observed that as of August 13, 2007, class representative Yates had been a plaintiff in 18 actions in

10 the Northern District of California alone. Id. at *4. Equally telling, absent class members have filed

11 individual actions against Taco Bell. See, e.g., Molski v. Taco Bell Corporation, No. 02cv01192 (S.D.

12 Cal. June 18, 2002); Molski v. Taco Bell #1106, No. 04cv02020 (C.D. Cal. March 24, 2004).

13

Separate actions by class members are not impracticable. If anything, separate actions by class

14 members will be far easier (and faster) to litigate because of the likelihood that many of such cases will

15 be filed in the California Superior Court, and be subject to the summary procedures of limited civil cases

16 (as long as the amount demanded is $25,000 or less), see Cal. Civ. Proc. Code § 86(a)(1), with limited

17 opportunities for discovery. See Cal. Civ. Proc. Code § 94.

18

Finally, Plaintiffs acknowledge that there is nothing precluding class members from filing

19 individual actions by proposing to limit the damages class to class members who encountered only five

20 so-called Key Barriers instead of the full list of alleged barriers surveyed. (Docket 646-1 at 16:14-17)

21 In essence, the named Plaintiffs are arguing that absent class members would not, in any way, be

22 prejudiced from starting anew and filing suit individually for barriers beyond those deemed “Key.” If

23 anything, the Court should construe the named Plaintiffs’ position as conceding that the class device is

24 not superior to other procedures including individual actions.

25

(b) Plaintiffs Fail To Explain How The Individualized Inquiries Required Can

Be Effectively Managed On A Classwide Basis.

26

27

As an additional proof of superiority, “An increasing number of courts require a party requesting

28 class certification to present a ‘trial plan’ that describes the issues likely to be presented at trial and tests

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1 whether they are susceptible of class-wide proof.” Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229,

2 233 n.4 (C.D. Cal. May 5, 2006) (Fischer, J.) (quoting Fed. R. Civ. P. 23(c)(1)(A), Advisory Comm.

3 Notes, 2003 Amendments); Thayer-Ogden v. Pottery Barn Kids, Inc., No. RG05-199128, 2006 WL

4 3378686, at *2 (Cal. Super. Ct. Nov. 9, 2006) (Sabraw, J.) (“Because ‘partial commonality’ cases

5 present greater trial management concerns, a plaintiff seeking to pursue such a case should present a

6 manageable trial plan at the class certification stage.”).

7

(i) Plaintiffs’ Proposal for Bifurcation or “Innovative Procedural Tools”

Cannot Overcome the Fact that Determination of Plaintiffs’ Damages

8

Claims Will Require a Fact-Intensive, Individual Analysis of Each

Absent Class Member. 9

10

Plaintiffs have offered no tenable alternative mechanism to a full-fledged trial for each absent

11 class member. Plaintiffs have failed to explain how any innovative procedural tools would be used to

12 effectively manage the damages issues in dispute. “It is not sufficient…simply to mention a procedural

13 tool; the party seeking class certification must explain how the procedure will effectively manage the

14 issues in question, and plaintiff has failed to do so here.” Dunbar v. Albertson’s, Inc., 141 Cal. App. 4th

15 1422, 1432, 47 Cal. Rptr. 3d 83 (2006)

16

Plaintiffs’ Motion proposes to bifurcate the case “with rule 23(b)(2) injunctive and liability

17 issues being resolved first, followed by the Rule 23(b)(3) damages issue.” (Docket 646-1 at 2:3-4,

18 22:11.) Plaintiffs ignore that this Court has previously bifurcated the case without any progress made in

19 resolving, on the merits, Plaintiffs’ state law damages claims. Bifurcation has not and will not assist in

20 resolving the state law damages claims because, as explained above, state law liability, in and of itself,

21 requires an individualized inquiry. Plaintiffs’ reliance upon Blackie v. Barrack, 524 F.2d 891, 905 (9th

22 Cir. 1975), is misplaced. The “amount of damages” for each class member is not the sole issue

23 remaining to be resolved. The classwide liability issue remains pending as well. Put differently,

24 Plaintiffs wrongly assume that the Court can impose classwide liability as to the state law statutory

25 minimum damages claims, and prevent Taco Bell from submitting relevant evidence in its defense

26 against monetary damages claims of potentially thousands of absent class members.

27

Further, each of Plaintiffs’ three suggestions for handling the thousands of individualized issues

28 to be determined in the “damages” phase are fatally flawed. First, notwithstanding Taco Bell’s request

TBC’S OPP’N TO PLS.’ MOT. ALTER

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1 for a jury trial on Plaintiffs’ damages claims, Plaintiffs propose to have individualized damages claims

2 heard by a special master or Magistrate Judge. (Doceket 646-1 at 23:5-6) In Dukes, the Supreme Court

3 held, “Contrary to the Ninth Circuit’s view, [the defendant] is entitled to individualized determinations

4 of each employee’s eligibility for backpay.” 131 S. Ct. at 2560 (emphasis added). The Court

5 explained:

6

We have established a procedure for trying pattern-or-practice cases that gives effect to

these statutory requirements. When the plaintiff seeks individual relief such as

7

reinstatement or backpay after establishing a pattern or practice of discrimination, “a

district court must usually conduct additional proceedings…to determine the scope of

8

individual relief.” Teamsters, 431 U.S., at 361, 97 S.Ct. 1843. At this phase, the burden

of proof will shift to the company, but it will have the right to raise any individual

9

affirmative defenses it may have, and to “demonstrate that the individual applicant was

denied an employment opportunity for lawful reasons.” 10

11 Id. at 2561 (emphasis added).

12

Thus, even if classwide liability could be determined in one stroke, the party opposing class

13 certification is still entitled to raise any affirmative defenses it may have to challenge individual liability

14 to a particular class member.

15

The recent decision in Duran v. U.S. Bank N.A., __ Cal. App. 4th __, __ Cal. Rptr. 3d __, 2012

16 WL 366590 (Cal. Ct. App. Feb. 6, 2012), is directly on point. In that case, the California Court of

17 Appeal not only reversed a judgment in favor of a certified class of 260 allegedly misclassified

18 employees, it also decertified the class based on the unmanageability of the class finding, in pertinent

19 part that the trial management plan denied the defendant employer’s due process rights by “foreclosing

20 [the defendant employer’s] opportunity to raise individualized challenges to the absent class members’

21 claims.” Id. at *30-31.

22

Second, the Ninth Circuit has considered and rejected the use of “innovative procedural tools”

23 such as questionnaires, statistical or sampling evidence, representative testimony, separate judicial or

24 administrative mini-proceedings, expert testimony, etc. in light of claims that “require a fact-intensive,

25 individual analysis” of each claimant. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 (9th

26 Cir. 2009) (Callahan, J.).

27

Finally, Plaintiffs’ proposal for an “initial damages exemplar trial” to help the parties evaluate

28 their settlement positions, (Pls.’ Mot. at 23:16-18), lends no support for their superiority analysis.

TBC’S OPP’N TO PLS.’ MOT. ALTER

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1 Instead of assuming that the instant action will be resolved via a settlement, Plaintiffs should be

2 analyzing the superiority requirement to determine whether the class device would be “superior to other

3 methods of adjudicating the controversy.” Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 487

4 (C.D. Cal. 2008) (emphasis added). This is not a case in which the superiority requirement can be given

5 short shrift. See Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997).

6

(ii) The Compliance Status of Alleged Barriers Does Not Avoid The

Unmanageability Of Individual Liability Determinations. 7

8

Plaintiffs’ assertion that the “compliance status” of most of the Key Barriers can be resolved via

9 summary judgment, (Docket 646-1 at 1:11-12; 3:18-19), is irrelevant to a determination of whether

10 those barriers actually interfered with an individual class member’s equal access on any occasion. Even

11 if the complex task of determining the compliance status of over 200 stores at different points in time as

12 measured against differing federal and state law standards, Plaintiffs ignore the individualized state law

13 liability determinations that need to occur pursuant to Donald, Urhausen, Reycraft, and Brunnen.

14

In addition, Plaintiffs’ reference to the so-called “compliance status” of an alleged barrier is

15 misleading insofar as it ignores Taco Bell’s right to assert affirmative defenses such as alternative access

16 and the “readily achievable” removal standards that apply differently to each barrier at each store. The

17 reality is that this Court will need to decide Taco Bell’s liability for the state law damages claims and

18 affirmative defenses at trial on an individual basis.

19

Given the volume and significance of the individualized issues to be adjudicated, this Court

20 should hold that it “does not believe that certifying a class is superior since the individual issues to be

21 adjudicated will dominate, result in an unmanageable series of minitrials, and consume an extraordinary

22 amount of time.” Pryor v. Aerotek Scientific, LLC2011 WL 6376703, at *20.

23 ///

24 ///

25 ///

26 ///

27 ///

28

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1

III. CONCLUSION

2

For the foregoing reasons, Taco Bell requests that the Court deny Plaintiffs’ Motion and

3 decertify the class.

4

5 DATED: March 16, 2012

GREENBERG TRAURIG, LLP

6

7

By /s/ Gregory F. Hurley

Gregory F. Hurley

8

Attorneys for Defendant TACO BELL CORP

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1 FOX & ROBERTSON, P.C.
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2 Amy F. Robertson, Pro Hac Vice
104 Broadway, Suite 400
3 Denver, Colorado 80203
Tel: (303) 595-9700
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Email: tfox@foxrob.com
5
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Email: tony@lawsonlawoffices.com
9

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net
THE IMPACT FUND Brad Seligman, Cal. Bar No. 83838 Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: bseligman@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

FRANCIE E. MOELLER et al, 13

Case No. 4:02-cv-05849 PJH (NC)

Plaintiffs, 14
v. 15
TACO BELL CORP.,

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO ALTER AND AMEND THE CLASS CERTIFICATION ORDER

16

Hearing Date: To Be Determined

Time: To Be Determined

17

Defendant.

The Honorable Phyllis J. Hamilton

18

Courtroom 3, 3rd Floor

19

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Case4:02-cv-05849-PJH Document679 Filed04/06/12 Page2 of 32

1

TABLE OF CONTENTS

2 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3 I. The Class Meets the Commonality Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4

A. Defendant Has Not Attempted To Rebut Numerous

Common Questions Identified By Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

1. Common Questions Relating to Class Injunctive Relief . . . . . . . . . . . . 2

6

2. Common Questions Relating To the Issue of the Compliance

7

Status Of the Key Barriers And Class Damages . . . . . . . . . . . . . . . . . . 3

8

B. The Named Plaintiffs and the Class Experienced the Same Type of Injury . . . 5

9

1. Defendant Has Facially Discriminatory Policies . . . . . . . . . . . . . . . . . . 5

10
11
12 II.
13
14
15
16

2. There Is Significant Proof That Defendant Operated Under A Policy Of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. The Barriers Themselves Satisfy Wal-Mart . . . . . . . . . . . . . . . . . . . . . . 7
Class Damages Claims Satisfy Rule 23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. The Court Has the Power to Narrow The Class Pled In The Complaint, And To Change the Rule 23(b) Basis for Class Damages Claims At Any Time Prior To Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Rule 23(c)(1)(C) Permits the Court to Alter Or Amend the Class Certification Order Before Final Judgement . . . . . . . . . . . . . 8

17

2. The Court May Certify a Class that is Narrower than

Alleged in the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18

3. The Court May Certify a Hybrid Class . . . . . . . . . . . . . . . . . . . . . . . . 10

19

B. Class Damages Claims Meet the Requirements of Rule 23(b)(3) . . . . . . . . . . 11

20

1. Common Issues Predominate Regardless of Whether

21

the Simple Determination of the Number of Times a

Class Member Was Aggrieved by a Noncompliant

22

Key Barrier Is Characterized As “Damages” or “Liability” . . . . . . . . . 11

23

2. The Rule 23(b)(3) Class Satisfies the

Superiority Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

24

C. The Court May Certify Class Liability and Injunctive Relief Issues

25

Under Rule 23(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

26 III. 27 28

Defendant’s Other Class Certification Arguments Unrelated to the Wal-Mart Decision Should Be Rejected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A. The Class is Ascertainable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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1

B. The Classes Satisfy the Numerosity Requirement . . . . . . . . . . . . . . . . . . . . . . 19

2

C. The Classes Satisfy the Typicality Requirement . . . . . . . . . . . . . . . . . . . . . . . 19

3 4
IV. 5 6 7 8 9 10

D. Plaintiffs’ Request to Narrow the Damages Class to Common Questions that Can Easily Be Resolved Does Not Make Them Inadequate . . . . . . . . . . . 20
Defendant’s Non-Class Certification Arguments Should Be Rejected . . . . . . . . . . . . 23
A. Defendant’s Request to Revisit the 2007 SJ Order Should Be Rejected . . . . . 23
1. Defendant Has Waived Its Design and Construct Argument . . . . . . . . 23
2. Defendant is Factually Wrong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3. Even Assuming Arguendo That Defendant Is Correct, There Would Be No Impact on the Finding That Defendant “Has Engaged in Numerous Violations of State and Federal Accessibility Requirements.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

11

B. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

12

C. Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Moeller v. Taco Bell Corp., Case No. 4:02-cv-05849 PJH (NC)

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1

TABLE OF AUTHORITIES

2

Cases

3 Akootchook v. United States,

271 F.3d 1160 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4

Arik v. Astrue,

5

2010 WL 2557493 (N.D. Cal. June 21, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

6 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 19-20, 25

7 Arnold v. United Artists Theatre Circuit, Inc.,

158 F.R.D. 439 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

8

Beck v. Boeing Co., 60 Fed. Appx. 38 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

9

Berlowitz v. Nob Hill Masonic Management, Inc.,

10

1996 WL 724776 (N.D. Cal. Dec. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

11 Berndt v. California Department of Corrections,

2012 WL 950625 (N.D. Cal. Mar. 20, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

12

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14

13

Bowers v. Windstream Ky. E., LLC,

14

2012 WL 216616 (W.D. Ky. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

15 Brunnen v. Mission Ranch,

2000 WL 33915634 (N.D. Cal. Dec. 19, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16

Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

17

Castaneda v. Burger King Corp.,

18

264 F.R.D. 557 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 20

19 Chakejian v. Equifax Info. Servs. LLC,

256 F.R.D. 492 (E.D. Pa. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

20

Cooper v. Fed. Reserve Bank of Richmond,

21

467 U.S. 867 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

22 Creely v. HCR ManorCare, Inc.,

2011 WL 3794142 (N.D. Ohio July 1, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

23

Cross v. Pacific Coast Plaza Investments, L.P.,

24

2007 WL 951772 (S.D. Cal. Mar. 6, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

25 Dalton v. Lee Publn’s, Inc.,

270 F.R.D. 555 (S.D. Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

26

Delagarza v. Tesoro Ref. and Mktg. Co.,

27

2011 WL 4017967 (N.D. Cal. Sept. 8, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28

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Case4:02-cv-05849-PJH Document679 Filed04/06/12 Page5 of 32

1 DL v. District of Columbia,

277 F.R.D. 38 (D.D.C. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 15

2

Donald v. Café Royale,

3

218 Cal. App. 3d 168 (Cal. Ct. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

4 Easterling v. Conn. Dep’t of Corr.,

278 F.R.D. 41 (D. Conn. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5

Ellis v. Costco Wholesale Corp.,

6

657 F.3d 970 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

7 Flores v. Rawlings Co., LLC,

177 P.3d 341 (Haw. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8

Gales v. Winco Foods,

9

2011 WL 3794887 (N.D. Cal. Aug. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

10 Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

11 Gibson v. Local 40, 543 F.2d 1259 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12 Gordon v. Virtumundo, Inc.,

575 F.3d 1040 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

13

Greenwood v. Compucredit Corp.,

14

2010 WL 291842 (N.D. Cal. Jan. 19, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

15 Gunnells v. Healthplan Servs., Inc.,

348 F.3d 417 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

16

Harris v. Stonecrest Care Auto Ctr., LLC,

17

472 F. Supp. 2d 1208 (S.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

18 Harris v. Stonecrest Care Auto Ctr., LLC,

559 F. Supp. 2d 1088 (S.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

19

Helm v. Alderwoods Group, Inc.,

20

2009 WL 5206207 (N.D. Cal. Dec. 29, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

21 Hiser v. Franklin, 94 F.3d 1287 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

22 Holmes v. Cont’l Can Co.,

706 F.2d 1144 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23

In re Conseco Life Ins. Co. LifeTrend Ins. Sales and Mktg. Litig.,

24

270 F.R.D. 521 (N.D. Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

25 In re Light Cigarettes Mktg. Sales Practices Litig.,

271 F.R.D. 402 (D. Me. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

26

In re Motor Fuel Temperature Sales Practices Litig.,

27

2012 WL 205904 (D. Kan. Jan. 19, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28

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Case4:02-cv-05849-PJH Document679 Filed04/06/12 Page6 of 32

1 Jimenez v. Domino’s Pizza, Inc.,

238 F.R.D. 241 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

2

Kurihara v. Best Buy Co., Inc.,

3

2007 WL 2501698 (N.D. Cal. Aug. 30, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

4 Leandry v. County of Los Angeles,

352 Fed. Appx. 214 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5

Marshall v. Kirkland, 602 F.2d 1282 (8th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

6

McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

7

--- F.3d ----, 2012 WL 592745 (7th Cir. Feb. 24, 2012) . . . . . . . . . . . . . . . . . . . . . . . 16

8 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 19

9

Molski v. Evergreen Dynasty Corp.,

10

500 F.3d 1047 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

11 Murray v. GMAC Mortgage Corp.,

434 F.3d 948 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

12

Nat’l Fed’n of the Blind v. Target Corp.,

13

2007 WL 1223755 (N.D. Cal. Apr. 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

14 Plascencia v. Lending 1st Mortgage,

2012 WL 253319 (N.D. Cal. Jan. 26, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

15

Prado-Steiman v. Bush,

16

221 F.3d 1266 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

17 Pryor v. Aerotek Scientific, LLC,

--- F.R.D. ---, 2011 WL 6376703 (C.D. Cal. Nov. 15, 2011) . . . . . . . . . . . . . . . . 13, 14

18

Rodriguez v. Investco, L.L.C.,

19

305 F. Supp. 2d 1278 (M.D. Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

20 Ross v. RBS Citizens, N.A.,

667 F.3d 900 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

21

Santillan v. Ashcroft,

22

2004 WL 2297990 (N.D. Cal. Oct. 12, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

23 United States v. City of New York,

276 F.R.D. 22 (E.D.N.Y. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

24

United States v. Laerdal Mfg. Corp.,

25

73 F.3d 852 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

26 Valentino v. Carter-Wallace, Inc.,

97 F.3d 1227 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

27

Vinole v. Countrywide Home Loans, Inc.,

28

571 F.3d 935 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

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1 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . passim

2 Washington v. Joe’s Crab Shack,

271 F.R.D. 629 (N.D. Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

3

Yamada v. Nobel Biocare Holding AG,

4

275 F.R.D. 573 (C.D. Cal. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5 Yokoyama v. Midland Nat’l Life Ins. Co.,

243 F.R.D. 400 (D. Haw. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6

Yokoyama v. Midland Nat’l Life Ins. Co.,

7

594 F.3d 1027 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14

8 Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

9

Rules

10

Federal Rules of Civil Procedure

11

23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

23(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12

23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

13

23(c)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

23(c)(2)(B)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

14

23(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

23(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

15

16

Statutes

17 The Americans with Disabilities Act

42 U.S.C. § 12188(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18

Title VII

19

42 U.S.C. § 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

20

Regulations

21

Title 24 of the California Code of Regulations, Cal. Code Regs. tit. 24 (2002)

22

§ 1133B.2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

23

Other Authorities

24

Joseph McLaughlin,

25

1 McLaughlin on Class Actions § 4:2 (8th ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

26 William B. Rubenstein, et al.,

Newberg on Class Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22

27

Charles Alan Wright, et al.,

28

18A Federal Practice and Procedure § 4455 (2nd ed.) . . . . . . . . . . . . . . . . . . . . . . 21, 22

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1

In the wake of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.

2 Ct. 2541 (2011), Plaintiffs have proposed a modified class that, while consistent with the class

3 previously pled in this action, narrows its scope while complying with the Supreme Court’s

4 revised Rule 23 jurisprudence. By narrowing the focus of the class to injunctive relief and five

5 Key Barriers, the proposed class zeros in on the claims with overwhelming common issues

6 where liability has already been resolved or will likely be resolved by summary adjudication.

7 In addition, and fully consistent with Wal-Mart’s Rule 23(b) analysis, Plaintiffs advance class

8 damages claims pursuant to Rule 23(b)(3).

9

Defendant’s approach in its briefs is not limited to the Wal-Mart issues; rather, it seeks

10 to relitigate issues repeatedly resolved in the original class certification order, the rejected

11 motion to reconsider that order, summary adjudication orders, and the exemplar trial Findings

12 of Fact and Conclusions of Law. Nothing in the Wal-Mart decision, for example, suggests that

13 the 2004 Order Granting Plaintiffs’ Motion for Class Certification (“2004 Certification

14 Order”), ECF 84, was incorrect when it held that this class met the numerosity, typicality, or

15 adequate representation requirements of Rule 23(a), or that class non-monetary claims met the

16 requirements of Rule 23(b)(2).

17

As to the two issues actually implicated by the Wal-Mart decision, Plaintiffs

18 demonstrated in their Opening Brief, ECF 646-1, and further establish in Parts I and II below,

19 that: (1) the class in this case meets the commonality requirement as articulated in Wal-Mart

20 because injunctive relief and the five Key Barrier issues are capable of classwide resolution,

21 and there is a substantial amount of evidence “bridging the gap” to show that the harm suffered

22 by the Named Plaintiffs was also suffered by members of the class; and (2) class damages

23 claims meet the requirements of Rule 23(b)(3).

24

Defendant devotes many pages in its briefs to class certification issues that have

25 nothing to do with the Wal-Mart decision. These arguments are addressed in Part III below.

26

Finally, Defendant makes a number of substantive arguments, most of which have

27 already been decided by this Court, and all of which support class certification. These

28 arguments are addressed in Part IV below.

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1

ARGUMENT

2 I. The Class Meets The Commonality Requirement.

3

A. Defendant Has Not Attempted To Rebut Numerous Common Questions

Identified By Plaintiffs.

4

Although commonality only requires that there be one common question capable of

5

classwide resolution, Wal-Mart, 131 S. Ct. at 2556, Plaintiffs on pages 9-11 of their Opening

6

Brief identified 20 such questions, the vast majority of which Defendant ignores.

7

1. Common Questions Relating To Class Injunctive Relief.

8

The current posture of this case makes injunctive relief unquestionably common to the

9

class. Following surveys that established widespread violations, ECF 216-40, Defendant

10

attempted to moot the case by remedying the violations. See Trial exs. 62, ¶ 28; 63, ¶ 28; 64,

11

¶ 49). Plaintiffs’ later surveys found new and ongoing violations, ECF 483 at 18-20, which

12

Defendant then continued to attempt to remedy. Based on the status in mid-2010, Plaintiffs

13

proposed an injunction that would apply uniformly to all restaurants requiring Defendant to

14

take measures to monitor and maintain the accessibility of its restaurants. See ECF 526-1.

15

Plaintiffs’ proposed injunction did not contain any restaurant-specific relief.

16

Following the exemplar trial, this Court rejected Defendant’s voluntary cessation

17

defense and held that,

18

based on the court’s prior findings in the August 8, 2007 order, and based on the

19

evidence presented at trial, including the testimony of TBC’s Director of ADA

Compliance, the court finds that plaintiffs have established that classwide

20

injunctive relief is warranted, with regard to maintaining compliance, both as to

Taco Bell 4518, and as to all corporate Taco Bell restaurants in California.

21

Findings of Fact and Conclusions of Law (“FFCL”) ECF 642 at 43, 53. Thus the injunction

22

relevant to the Rule 23(a) analysis is one that will apply uniformly to all restaurants and will

23

not require restaurant-by-restaurant analysis.

24

All class members share the common question of whether a classwide injunction should

25

be entered, a question the Court has already answered in the affirmative. This common

26

question turned on several classwide common factual and legal questions, including “evidence

27

that is ‘symptomatic’ of the defendant’s violations, including ‘individual items of evidence

28

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1 [that are] representative of larger conditions or problems.’” FFCL at 39 (quoting Armstrong v.

2 Davis, 275 F.3d 849, 871 (9th Cir. 2001).)

3

Defendant argues that Armstrong is irrelevant to this case because it purportedly

4 addressed discriminatory policies. Reply Br., ECF 674, at 3. Even if this characterization of

5 Armstrong were true, it misses the point. Armstrong reaffirmed the well-established principle

6 that an injunction should be entered upon evidence that violations are likely to recur, and that

7 such evidence can include symptomatic evidence of a defendant’s past violations. Courts have

8 applied this principle in a variety of settings having nothing to do with allegedly discriminatory

9 policies. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 132-33

10 (1969) (affirming injunction that was based on past violations of the Sherman Act); United

11 States v. Laerdal Mfg. Corp., 73 F.3d 852, 857 (9th Cir. 1995) (in case involving violation of

12 medical device reporting regulations, affirming injunction in part because “past illegal conduct

13 gives rise to an inference that future violations may occur.”).

14

Defendant also argues that because Plaintiffs have not asserted a “modification of

15 policy” claim, its policies are irrelevant. Reply Br. at 7-8. To the contrary, Defendant’s

16 policies are relevant to several issues, including class certification, injunctive relief, and

17 Defendant’s voluntary cessation defense. See 42 U.S.C. § 12188(a)(2) (in architectural barrier

18 case, injunctive relief includes “modification of a policy” where appropriate); FFCL at 40-42

19 (discussing Defendant’s policies as relevant to voluntary cessation defense).

20

The only specific issue common to injunctive relief that Defendant addresses is the

21 voluntary cessation defense (which it refers to as “mootness”). Reply Br. at 6. The Court,

22 however, has already rejected this defense, and it is a common question capable of a common

23 answer.

24

2. Common Questions Relating To The Issues Of The Compliance

Status Of The Key Barriers And Class Damages.

25

On pages 9-11 of their Opening Brief, Plaintiffs identified a number of classwide

26

common questions relevant to the issues of the compliance status of the Key Barriers, and class

27

damages arising from those Barriers, including common questions relating to Defendant’s

28

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1 statute of limitations, equivalent facilitation, and building department defenses, and the

2 application of state and federal regulations to architectural elements at its restaurants.

3

Defendant completely ignores these common questions. Instead, most of Defendant’s

4 commonality argument is devoted to a number of purportedly individualized issues, such as

5 issues arising from the readily achievable standard, and the “unique” alteration history of each

6 restaurant. See Reply Br. at 10-16. Commonality is established even if these additional issues

7 are individualized, since commonality requires only that there be one common issue, and it is

8 undisputed that this requirement is met here.

9

As to these purported individualized issues, Defendant fails to explain how these issues

10 will arise in the context of the Key Barrier compliance determinations and damages actually

11 sought by Plaintiffs. As explained in detail on pages 4-6 of Plaintiffs’ Opening Brief, these

12 barriers were chosen because their compliance status largely has already been determined, and

13 those few determinations that remain share issues common to the class, the vast majority of

14 which can be resolved via summary judgment.

15

Ultimately, Armstrong made clear that classes of persons with disabilities challenging

16 systemic discrimination easily satisfy the commonality requirement: “We have previously held,

17 in a civil-rights suit, that commonality is satisfied where the lawsuit challenges a system-wide

18 practice or policy that affects all of the putative class members. In such circumstance,

19 individual factual differences among the individual litigants or groups of litigants will not

20 preclude a finding of commonality.” 275 F.3d at 868 (citations omitted).

21

Defendant’s argument rests heavily on Castaneda v. Burger King Corp., 264 F.R.D.

22 557 (N.D. Cal. 2009). That decision, however, did not mention Armstrong, perhaps the Ninth

23 Circuit’s preeminent discussion of class certification in disability rights cases. The Castaneda

24 court also lacked crucial elements that this case now has: extensive Special Master evidence of

25 widespread violations; partial summary judgment establishing violations at more than 160

26 restaurants; an exemplar trial; and an order holding that classwide injunctive relief is

27 appropriate.

28

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1

In addition, the plaintiffs in Castaneda were challenging all of the architectural

2 elements in the defendant’s franchised restaurants, whereas here, Plaintiffs are challenging the

3 compliance status of the five Key Barriers, an issue that has already been determined for most

4 such Barriers. Further, the Castaneda decision on its face distinguished its analysis from the

5 analysis in the 2004 Certification Order in this case based on the very different facts of the two

6 cases. 264 F.R.D. at 567-68. Finally, the Castaneda decision is by far the minority view

7 concerning certification of classes of persons with disabilities in actions under the ADA and

8 California state law. At least seven decisions have held that such classes meet the requirements

9 of Rule 23. See Pls.’ Opening Br. at 7 n.5; Pls.’ Mot. for Class Certification, ECF 40, at 14-16

10 & n.18 (together citing decisions in Jorgensen, Berlowitz, Arnold, Leiken, Park, Nat’l Fed’n of

11 the Blind, and Lucas). Indeed, the Ninth Circuit granted a Rule 23(f) petition concerning the

12 Castaneda decision, but the case settled before the merits of the appeal were decided.

13

B. Named Plaintiffs And The Class Experienced The Same Type Of Injury.

14

Under Wal-Mart, there must be evidence showing that the Named Plaintiffs and

15 members of the class suffered the same type of injury. 131 S. Ct. at 2551. That evidence can

16 consist of a neutral policy, such as a test or evaluation method (or for that matter an

17 architectural design) that may be “charged with bias,” or of significant proof that an employer 18 operated under a general policy of discrimination.1 Both types of evidence exist here.

19

1. Defendant Has Facially Discriminatory Policies.

20

Defendant contends that commonality does not exist because Plaintiffs have not

21 identified any written policy, architectural plan, or blueprint that – on its face – is in violation

22 of accessibility laws. Reply Br. at 6-7. While Wal-Mart does not require such an extreme

23

1

131 S. Ct. at 2553. There is a significant difference in the types of

24 discrimination at issue here and in a Title VII intentional discrimination claim such as that

addressed by Wal-Mart. In Wal-Mart, the plaintiffs and the class were required to prove that

25 each adverse employment action was motivated by a discriminatory animus. Here, Defendant’s

motivation is irrelevant, and numerous courts interpreting Wal-Mart have distinguished it on

26 those grounds. See, e.g., Ross v. RBS Citizens, N.A., 667 F.3d 900, 909 (7th Cir. 2012); DL v.

District of Columbia, 277 F.R.D. 38, 46 (D.D.C. 2011); Creely v. HCR ManorCare, Inc., 2011

27 WL 3794142 (N.D. Ohio July 1, 2011) (distinguishing Wal-Mart on the grounds that the claims

at issue did “not require an examination of the subjective intent behind millions of individual

28 employment decisions…”).

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1 showing in order to establish commonality, Defendant here does have facially discriminatory

2 policies. For example, during the exemplar trial, Defendant acknowledged that its queue lines

3 were “never intended for wheelchair use.” Trial tr. at 28:1-5 (6/6/11). Instead, Defendant

4 intended that such persons use the “alternative route,” which is segregated from the route of the

5 general public, and which this Court has held violates state and federal law. FFCL at 46-51. In

6 addition, one of Defendant’s current access policies sets exterior door force at 8.5 pounds, and

7 Defendant’s DMA Ops Leader testified at trial that it was his understanding that it is

8 Defendant’s policy that door opening force should be 8.5 pounds regardless of when the store

9 was built despite the fact that starting in 2002, state law limited exterior door force to a

10 maximum of five pounds. See FFCL at 16; Cal. Code Regs., tit. § 1133B.2.5 (2002).

11

2. There Is Significant Proof That Defendant Operated Under A Policy

Of Discrimination.

12

As set forth in Plaintiffs’ Opening Brief, the August, 2007, Order Denying in Part and

13

Granting in Part Plaintiffs’ Motion for Partial Summary Judgment (“2007 SJ Order”), ECF

14

307, and the Special Master reports, ECF 216-40, established numerous and widespread

15

violations of accessibility requirements, easily meeting the commonality standard discussed in

16

Wal-Mart.

17

Additional evidence admitted at trial concerning Defendant’s practice and policies

18

provides further support that the access violations were widespread, resulting in the same type

19

of injury to the Named Plaintiffs and the class. This evidence included, for example:

20

(1) Defendant’s pre-2005 policy and practice of relying primarily on facilities leaders for

21

compliance with access requirements, but providing them with no training, with the result that

22

they had “no clue” about accessibility requirements; (2) Defendant’s practice of issuing access

23

policies that contradict provisions in earlier policies, and omitting architectural elements that

24

had been covered by earlier policies; and (3) Defendant’s practice of not following, and in

25

some cases repeatedly violating, its own access policies. FFCL at 15-18.

26

These deficient practices and policies result in widespread violations because they are

27

centralized. Defendant, citing two lines from the trial transcript, claims that its policies are not

28

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1 centralized. Reply Br. at 15. Here is the testimony on which it relies: “[Managers in charge]

2 make those checks before the store opens and then periodically throughout the day, anywhere

3 from 30 minutes.” Trial tr. at 586:13-14 (6/10/11).

4

Defendant, however, omits the facts that the managers in charge (and construction

5 managers and maintenance technicians) conduct their purported surveys based on centralized

6 access policies developed at the direction of Steve Elmer, Defendant’s Director of ADA

7 Compliance, and in place at all corporate restaurants. Trial tr. at 561:10-562:4 (6/9/11),

8 790:21-791:12 (6/13/11). Mr. Elmer -- who is shown on the organizational chart submitted by 9 Defendant as above Defendant’s Development, Operations and Facilities departments2 -- also

10 testified that the checklists used during access checks were centrally developed, training of

11 people conducting the surveys is centralized, and Defendant purportedly has incentives in place 12 to ensure that its contractors and employees follow its centralized policies.3 Further, Mr. Elmer

13 testified that Defendant centralized the design of its restaurants using “standard design

14 template[s].” Trial tr. at 562:12-15 (6/9/10).

15

Thus, the Court held that “TBC’s access policies are centralized - policies in place at

16 Taco Bell 4518 are also in place at all other California corporate Taco Bell restaurants.” FFCL

17 at 15. The fact that Defendant’s policies are centralized distinguishes this case from Wal-Mart

18 and further supports class certification. See, e.g., Moeller v. Taco Bell Corp., 220 F.R.D. 604,

19 610 (N.D. Cal. 2004) (“[C]entralized decision-making is an additional factor weighing heavily

20 towards a finding of commonality, if it does not establish commonality outright.”).

21

3. The Barriers Themselves Satisfy Wal-Mart.

22

The Wal-Mart case arose under Title VII, 42 U.S.C. § 2000e et seq., and thus the

23 pattern and practice claims there required a showing of discriminatory intent. Under this

24 theory, a set of adverse employment decisions -- failures to hire; differences in pay -- do not

25

2

See trial ex. A88.

26

3

Centralized training: June 9 trial tr. at 567:6 - 568:11, June 10 trial tr. at

27 618:2-18, 628:19-629:22. Centrally developed checklists: June 10 trial tr. at 583:8-19,

604:20-605:22, 613:1-11, 623:10-24, 632:10-17. Incentives: June 10 trial tr. at 580:2-20,

28 582:4-24, 631:7-22.

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1 violate the law in the absence of evidence that they were made with discriminatory intent. In

2 contrast, to establish noncompliance with applicable accessibility codes and hence entitlement

3 to injunctive relief, see Donald v. Café Royale, 218 Cal. App. 3d 168, 183 (Cal. Ct. App.

4 1990), Plaintiffs here only need show basic empirical data: measurements; dates of

5 construction; admitted alterations. Plaintiffs do not need to show a policy or practice where,

6 for example, Special Master surveys show over 100 stores with noncompliant queue lines, or

7 more than 140 with non-compliant restroom doors. These common barriers support

8 commonality without reference to policy.

9 II. Class Damages Claims Satisfy Rule 23(b)(3).

10

A. The Court Has the Power to Narrow The Class Pled In The Complaint,

And To Change the Rule 23(b) Basis for Class Damages Claims At Any

11

Time Prior To Final Judgment.

12

Plaintiffs alleged both a Rule 23(b)(2) and 23(b)(3) class in their complaint, ECF 36 at

13 4, 6-7, and Plaintiffs do not seek any change to the class definition with respect to class

14 injunctive relief. Thus Plaintiffs seek only to narrow the class – on the issues of compliance

15 status and damages – from all barriers to the five Key Barriers, and in light of Wal-Mart, to

16 change the basis for class damages claims to Rule 23(b)(3). Defendant incorrectly argues that

17 the Court lacks the power to make any changes to the class definition after a decision on the

18 merits, certify a class narrower than that pled in the complaint, or to create a “hybrid” class

19 whereby the non-monetary issues are certified under Rule 23(b)(2) and monetary claims are

20 certified under Rule 23(b)(3). Opp. Br., ECF 673, at 6-7, 9, 21-22; Reply Br. at 21-22.

21

1. Rule 23(c)(1)(C) Permits The Court To Alter Or Amend The Class

Certification Order Before Final Judgment.

22

Prior to 2003, Rule 23(c)(1)(C) provided that a court could alter or amend a class

23

certification order before a “decision on the merits.” In 2003, the Rule was amended to its

24

current text, which provides that a court can alter or amend a class definition at any time

25

“before final judgment.” Defendant mistakenly cites to an Eleventh Circuit decision issued

26

before that amendment to argue that this Court does not have the power to alter or amend the

27

class after a decision on the merits. See Reply Br. at 21-22 (citing Prado-Steiman v. Bush, 221

28

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1 F.3d 1266, 1273 (11th Cir. 2000)). Because final judgment has not entered in this case, this

2 Court continues to have the power under Rule 23(c)(1)(C), as amended, to alter or amend the

3 class certification order.

4

2. The Court May Certify a Class That Is Narrower than Alleged in

the Complaint.

5

While an amendment to the complaint may be necessary when a plaintiff seeks to

6 expand a class, it is not necessary where, as here, a plaintiff seeks to narrow the class.4

7

The only case cited by Defendant to support its claim that a court is bound by the

8

definition in the complaint (Reply Br. at 6-7) is Judge Patel’s decision in Berlowitz v. Nob Hill

9

Masonic Management, Inc., 1996 WL 724776, at *2 (N.D. Cal. Dec. 6, 1996). In that case, the

10

complaint limited the class to persons with certain disabilities, but in their motion for class

11

certification, the plaintiffs sought to expand the class to include companions of persons with

12

disabilities. The court held that it was bound by the definition of the class in the complaint,

13

and refused to consider the expanded class in the motion for class certification.

14

In a subsequent case, after having determined that the proposed class was overbroad,

15

Judge Patel held that “an over-inclusive class definition need not defeat certification entirely.

16

Where the court determines that the class definition is overbroad, the court has the discretion to

17

narrow the class to bring it within the requirements of Rule 23.” Nat’l Fed’n of the Blind v.

18

Target Corp., 2007 WL 1223755, at *3 (N.D. Cal. Apr. 25, 2007) (emphasis added) (citing

19

Gibson v. Local 40, 543 F.2d 1259, 1264 (9th Cir. 1976)).

20

Numerous other courts have recognized that while a court may not expand a class

21 beyond that pled in the operative complaint, it can narrow the class.5 Here, Plaintiffs have

22

23

4

Should the Court determine that the complaint needs to be amended before the

24 class definition can be narrowed on the issues of compliance status and class damages claims,

Plaintiffs respectfully request leave to do so. Because the effect of the amendment would be to

25 narrow class damages claims, and because the amendment was necessitated by the recent Wal-

Mart decision, Defendant will suffer no prejudice by the amendment.

26

5

Compare Plascencia v. Lending 1st Mortgage, 2012 WL 253319, at *4 (N.D.

27 Cal. Jan. 26, 2012) (refusing to modify class definition in manner that would expand class)

with Greenwood v. Compucredit Corp., 2010 WL 291842, at *3 (N.D. Cal. Jan. 19, 2010)

28

(continued...)

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1 narrowed the (b)(3) claims pled in the original complaint to the five Key Barriers. This

2 contrasts with the class asserted, and rejected, in this Court’s recent decision in Berndt v.

3 California Department of Corrections, 2012 WL 950625, at *7-8 (N.D. Cal. Mar. 20, 2012),

4 where plaintiffs sought to certify a (b)(3) class and subclass despite the fact that the original

5 complaint relied solely on Rule 23(b)(1) and (2).

6

3. The Court May Certify A Hybrid Class.

7

Plaintiffs request that non-monetary issues remain certified under Rule 23(b)(2), while

8 class damages claims be certified under Rule 23(b)(3), resulting in a hybrid class. As support

9 for this request, Plaintiffs cited Rule 23(c)(1)(C), and Rule 23(c)(4), which permits class

10 certification “with respect to particular issues.”

11

Defendant asserts that Plaintiffs’ request for a hybrid class is “unsupported by anything

12 in the Rules themselves,” but in doing so, it does not even mention, let alone attempt to

13 distinguish, the broad language of Rules 23(c)(1)(C) or (c)(4). See Opp. Br. at 9. Further, it

14 does not cite a single case or other authority for its assertion that this Court lacks the power to

15 change the basis for the certification of class damages claims. Indeed, the only case it cites

16 addressing hybrid class actions found that “it is possible to create hybrids in given cases.”

17 Opp. Br. at 9 (citing Holmes v. Cont’l Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983)).

18

Courts after Wal-Mart have repeatedly approved hybrid classes. See. e.g., United States

19 v. City of New York, 276 F.R.D. 22, 53-54 (E.D.N.Y. 2011) (certifying liability and injunctive

20 relief claims under Rule 23(b)(2) and back pay and other relief under Rule 23(b)(3)); Bowers v.

21 Windstream Ky. E., LLC, 2012 WL 216616, at *2 (W.D. Ky. 2012) (in response to Wal-Mart,

22 changing basis of certification of some claims from Rule 23(b)(1) to (b)(3)); DL, 277 F.R.D. at

23 47 (in response to Wal-Mart, keeping class injunctive and declaratory relief claims certified

24

25

5(...continued)

(certifying revised class definition first set forth in reply brief that resulted in narrower class) 26 and Santillan v. Ashcroft, 2004 WL 2297990, at *4 (N.D. Cal. Oct. 12, 2004) (“district courts

may shape the contours of a nationwide class to exclude pending cases addressing similar 27 issues”); see also 1 McLaughlin on Class Actions § 4:2 (8th ed.) (“Courts are not bound by the

class definition proposed in the complaint and have considerable flexibility to modify a 28 proposed class definition that defines the class too narrowly, broadly, or imprecisely.”).

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1 under Rule 23(b)(2), and changing basis of certification of class monetary claims to (b)(3));

2 Easterling v. Conn. Dep’t of Corr., 278 F.R.D. 41, 51 (D. Conn. 2011) (same); In re Motor

3 Fuel Temperature Sales Practices Litig., 2012 WL 205904, at *3-4 (D. Kan. Jan. 19, 2012)

4 (same). Indeed, the Ninth Circuit recently reversed and remanded a class certification decision,

5 instructing the district court to consider a hybrid certification -- with some issues certified

6 under Rule 23(b)(2) and some under (b)(3). Ellis v. Costco Wholesale Corp., 657 F.3d 970,

7 988 (9th Cir. 2011); see also Beck v. Boeing Co., 60 Fed. Appx. 38, 39 (9th Cir. 2003) (Stating

8 that “there is no rule against ‘hybrid certification’ under both Rule 23(b)(2) and 23(b)(3) . . .”).

9

B. Class Damages Claims Meet the Requirements of Rule 23(b)(3).

10

1. Common Issues Predominate Regardless of Whether the Simple

Determination of the Number of Times a Class Member Was

11

Aggrieved by a Noncompliant Key Barrier Is Characterized As

“Damages” or “Liability”.

12

On pages 10-11 and 21 of their Opening Brief, Plaintiffs demonstrated that the

13

predominance requirement is satisfied because there are numerous and important questions

14

common to their proposed Rule 23(b)(3) damages class, while the only individualized issue is

15

the “simple question of the number of instances that individual class members were aggrieved

16

by” noncompliant Key Barriers. Moeller, 220 F.R.D. at 610 (citing Arnold v. United Artists

17

Theatre Circuit, Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994)). The number of times that a class

18

member has been aggrieved is a damages issue, and under clear Ninth Circuit precedent,

19

individualized issues relating to damages do not defeat a predominance finding. See, e.g.,

20

Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Yokoyama v. Midland Nat’l Life Ins.

21

Co., 594 F.3d 1027, 1094 (9th Cir. 2010).

22

Seeking to avoid the holdings in Blackie and Yokoyama, Defendant argues that the

23

determination of whether a class member has been aggrieved by a noncompliant Key Barrier is

24

actually a liability issue, not a damages issue. Opp. Br. at 12-15. This is pure semantics.

25

Whether characterized as “damages” or “liability,” the only individualized question is identical

26

and simple: how many times has a class member been aggrieved by a noncompliant Key

27

Barrier? This number is then multiplied by the statutory minimum damages amount. If a class

28

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1 member has not been aggrieved, then she is not entitled to any damages, whether that result is

2 characterized as “damages” or “liability.”

3

This is just the sort of individualized determination that the Ninth Circuit in Blackie

4 held not to obstruct class certification, and is far less complex than many individualized

5 damages determinations in certified classes. For example, in Yokoyama, a class action was

6 brought on behalf of purchasers of the defendant’s annuities based on alleged violations of

7 Hawaii’s Deceptive Practices Act. 594 F.3d at 1089. The plaintiffs sought treble actual

8 damages for class members. See Yokoyama v. Midland Nat’l Life Ins. Co., 243 F.R.D. 400,

9 401 (D. Haw. 2007). The district court denied certification, in part based on its finding that the

10 predominance requirement was not satisfied because individualized determinations were

11 necessary for damages. The Ninth Circuit reversed, holding that “[o]ur court long ago

12 observed that ‘[t]he amount of damages is invariably an individual question and does not defeat

13 class action treatment.’” Yokoyama, 594 F.3d at 1089 (quoting Blackie, 524 F.2d at 905).

14

In reaching this conclusion, the Ninth Circuit expressly recognized that “[d]amage

15 calculations will doubtless have to be made under Hawaii’s consumer protection laws,” id. at

16 1094, which in turn required an analysis of whether the violation of the Deceptive Practices Act

17 voided the underlying annuity agreement, and, if so, a determination of the amount of actual

18 damages suffered by the class member. See Flores v. Rawlings Co., LLC, 177 P.3d 341, 355

19 (2008). This two-step damages analysis did not defeat class certification. See also Delagarza

20 v. Tesoro Ref. and Mktg. Co., 2011 WL 4017967, at *11-12, 17 (N.D. Cal. Sept. 8, 2011)

21 (Holding that predominance requirement met despite need for individualized damages

22 determinations addressing, for example, different rates of pay for different shifts, and fact that

23 some shifts were excluded from class); Yamada v. Nobel Biocare Holding AG, 275 F.R.D. 573,

24 579-80 (C.D. Cal. 2011) (predominance requirement met in action alleging defective dental

25 implants despite individualized damages determinations concerning costs, projected repairs and

26 medical monitoring expenses). The damages determinations in Yokoyama, Delagarza and

27 Yamada were much more complicated and individualized than in this case and demonstrate

28 that such determinations do not defeat class certification here.

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1

Defendant cites several cases which found that the preponderance requirement was not

2 met because individualized determinations were necessary to establish liability, but these cases

3 are very different than the case at bar. Here, whether a particular Key Barrier violates the law

4 is a common question dependent on factors that are common to the class, for example,

5 measurements and construction dates, rather than factors specific to the circumstances of each

6 class member. Indeed, whether the vast majority of Key Barriers are in violation of state and/or

7 federal law has already been determined through the 2007 SJ Order.

8

In the cases cited by Defendant, however, the predicate question of whether the

9 defendant had violated the law was specific to each class member, and required an

10 individualized analysis of each class member’s circumstances. For example, Defendant cites

11 several class actions brought under California wage and hour laws. In two of these cases --

12 Jimenez v. Domino’s Pizza, Inc., 238 F.R.D. 241, 253 (C.D. Cal. 2006) and Gales v. Winco

13 Foods, 2011 WL 3794887 (N.D. Cal. Aug. 26, 2011) -- “the work actually performed by [each]

14 employee[],” id. at *8, had to be analyzed to determine whether he or she was exempt from

15 overtime requirements. If the employee was exempt, then the defendant had not violated the

16 law with respect to that class member. In the third -- Pryor v. Aerotek Scientific, LLC, ---

17 F.R.D. ---, 2011 WL 6376703, at *15 (C.D. Cal. Nov. 15, 2011) -- an analysis of “the arrival

18 and departure time of each employee on each day” was required to determine whether the

19 defendant had violated California compensation laws. And in Washington v. Joe’s Crab

20 Shack, 271 F.R.D. 629, 641 (N.D. Cal. 2010), to determine whether a class member’s failure to

21 take a rest or meal break violated California law required an analysis of the reason why that

22 class member did not take that break. See also Helm v. Alderwoods Group, Inc., 2009 WL

23 5206207, at *10 (N.D. Cal. Dec. 29, 2009) (“highly individualized” inquiry needed to

24 determine whether defendant had violated wage and hour laws).

25

An example of an issue that does not defeat predominance despite being relevant to

26 liability is found in another case cited by Defendant, Kurihara v. Best Buy Co., Inc., 2007 WL

27 2501698 (N.D. Cal. Aug. 30, 2007). In that case, the plaintiff brought a class-action alleging

28 that the defendant violated labor laws by subjecting its employees to inspections in order to

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1 prevent inventory loss without compensating these employees for the time spent during these

2 inspections. Id. at *1. The defendant argued that the predominance requirement was not met

3 because individualized inquiries would be necessary to determine whether the time spent by

4 each employee undergoing inspections was de minimis and thus not compensable. Id. at *9.

5 The defendant, like Defendant here, characterized this as a liability issue, but the court rejected

6 this argument, holding that these individualized inquiries were “directed principally toward

7 damages rather than liability.” Id. at *11. The court concluded that “the simple question of

8 how many hours were worked” by an employee did not defeat predominance. Id.

9

Together, these cases stand for the proposition that it is not the label given to a

10 particular individualized issue that determines whether it defeats predominance, but rather the

11 nature of the inquiry required by that issue. In Jimenez, Gales, Pryor, Washington and Helm,

12 predominance did not exist because the predicate question of whether the defendant’s actions

13 violated the law differed among class members, and required a detailed, individualized analysis

14 for each class member. On the other hand, in Blackie, Yokoyama and (to a large extent)

15 Kurihara, the issue of whether the defendant had violated the law was common to the class and

16 could be determined on a classwide basis, and predominance existed because the only

17 remaining individualized issues were straightforward. This is true in this case, and because the

18 only individualized issue -- the number of times a class member was aggrieved -- is much

19 simpler than the inquiries necessary in a number of cases certified under Rule 23(b)(3), the

20 predominance requirement is met.

21

2. The Rule 23(b)(3) Class Satisfies The Superiority Requirement.

22

The “overarching focus” of the superiority requirement is a comparison of the

23 efficiencies of litigating the claims as a class in one forum versus other alternatives. Vinole v.

24 Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009).

25

Defendant asserts that given the potential size of damages recoveries, class members

26 will bring damages claims in state court if those claims cannot be asserted in this action. Opp.

27 Br. at 19-21. This, however, simply highlights the importance of the analysis required by

28 Vinole -- is it more efficient to resolve class damages claims in multiple proceedings in various

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1 state courts, or to resolve those claims in this case? A proper examination of this balance

2 clearly favors litigating class damages claims in this forum.

3

First, the efficiencies of trying class damages in this forum, instead of starting from

4 scratch in numerous state court actions, cannot be overstated. This case has been litigated for

5 almost a decade, during which hundreds of thousands of pages of documents have been

6 produced, dozens of depositions have been taken, multiple legal issues have been resolved on a

7 classwide basis, and Plaintiffs have interviewed more than 1,000 class members. The parties

8 and their attorneys are very familiar with the facts and legal issues relevant to this case.

9

By contrast, litigating class damages claims in multiple state court proceedings will

10 involve multiple different attorneys for the plaintiffs and multiple courts, all of whom will need

11 to get up to speed on the facts and law relevant to this case. This argues strongly in favor of

12 litigating damages in this forum. See, e.g., DL, 277 F.R.D. at 47-48 (“[T]his case has grown

13 quite long in the tooth . . the extent of the litigation already begun on behalf of the class further

14 supports this Court’s conclusion that the superiority requirement is satisfied.”).

15

Second, litigating class damages claims in multiple state court proceedings will involve

16 a significant amount of repetition. The same types of discovery requests and disputes will be

17 repeated among the various state court actions. Numerous experts will analyze the same issues

18 across the actions, the same people will likely be deposed repeatedly on the same issues, and

19 the parties and the courts will brief the same legal and factual issues over and over.

20

Third, because the same issues will be analyzed by multiple courts, there is a high risk

21 of inconsistent holdings.

22

Finally, Defendant assumes every class member will have numerous claims against it,

23 but many likely will not. Even assuming each class members’ claim is large enough to pursue

24 individually, “that does not defeat certification, especially in light of the substantial judicial

25 resources conserved by determining common issues in a single adjudication.” Dalton v. Lee

26 Publn’s, Inc., 270 F.R.D. 555, 565 (S.D. Cal. 2010); see also Gunnells v. Healthplan Servs.,

27 Inc., 348 F.3d 417, 432 (4th Cir. 2003) (“[T]he size of class members’ recovery is hardly

28 determinative of superiority.”).

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1

Plaintiffs on page 23 of their Opening Brief identified a number of tools to help manage

2 the resolution of class damages claims. After the Court resolves the issue of the compliance

3 status of those Key Barriers not addressed by the 2007 SJ Order, class members can be sent

4 claim forms to complete, followed, where necessary, by Teamsters hearings, or the Court can

5 schedule an exemplar damages trial. Defendant contends that the Ninth Circuit rejected the use

6 of any such techniques in Vinole, 571 F.3d at 947. To the contrary, the Ninth Circuit in Vinole

7 expressly held that the use of such tools are “within the discretion of the district court.”

8

C. The Court May Certify Class Liability and Injunctive Relief Issues Under

Rule 23(c)(4).

9

If the Court remains concerned that individual damages determinations may not be

10 feasible, it should nevertheless certify the stage one liability6 and injunctive relief claims under

11

Rule 23(c)(4), which allows certification of issues. See Valentino v. Carter-Wallace, Inc., 97

12

F.3d 1227, 1234 (9th Cir. 1996) (“Rule 23 authorizes the district court in appropriate cases to

13

isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these

14

particular issues.”). As Judge Posner recently explained, ordering just such a certification, the

15

liability issue can “most efficiently be determined on a class-wide basis” even though this

16

proceeding “could not resolve class members’ claims. Each class member would have to prove

17

that his compensation had been adversely affected . . . and by how much.” McReynolds v.

18

Merrill Lynch, Pierce, Fenner & Smith, Inc., --- F.3d ----, 2012 WL 592745, at *8 (7th Cir.

19

Feb. 24, 2012). The court ordered certification pursuant to Rule 23(c)(4) despite the fact that

20

individual claims were undoubtedly large enough to make individual suits feasible. “But at

21

least it wouldn’t be necessary in each of those trials to determine whether the challenged

22

practices were unlawful.” Id.

23

24

6

In their Opening Brief, Plaintiffs alternately used the term “liability” and

25 “compliance status” in describing the non-injunctive issues included in their Rule 23(b)(2)

class. Defendant challenges the use of the term “liability” on the ground that a full liability 26 determination requires testimony from class members that their access was impeded by a

noncompliant barrier. To be clear, as a (b)(2) issue, Plaintiffs seek a determination of whether 27 the dimensions of the Key Barriers comply with state and/or federal accessibility regulations,

determinations that have already been made for the vast majority of Key Barriers, and none of 28 which require individual class member testimony.

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1 III. Defendant’s Other Class Certification Arguments Unrelated to the Wal-Mart Decision Should Be Rejected.
2 A. The Class Is Ascertainable.
3 Defendant asserts that the class is not ascertainable. Reply Br. at 3-4. In addressing
4 ascertainability, “insistence on detailed class delineation is contrary to the intent of revised
5 Rule 23 and is unnecessary.” 8 Newberg on Class Actions § 24:68 (4th ed.). In a Rule
6 23(b)(2) class, “it is immaterial that not all class members are susceptible of ascertainment.” 2
7 Newberg on Class Actions § 6:15 (4th ed.); see also Berndt, 2012 WL 950625, at *9. A
8 damages class is ascertainable if it describes “a common transactional fact or status predicated
9 on the cause of action,” “the time span appropriate to the cause of action,” and “[a]ny
10 appropriate geographical scope.” 2 Newberg on Class Actions § 6:17 (4th ed.).
11 The damages class in this case easily satisfies this standard. The class is limited to:
12 (1) individuals with disabilities who use wheelchairs or electric scooters mobility who were
13 denied the full and equal enjoyment of Defendant’s goods and services as a result of a Key
14 Barrier; (2) on or after December 17, 2001; at (3) a Taco Bell corporate restaurant in
15 California. Opening brief at 18. The level of specificity of this definition far exceeds class
16 definitions in similar cases in which courts have found the ascertainability requirement to be
17 met. For example, the court in National Federation of the Blind v. Target Corp. held that the
18 following class definition met the ascertainability requirement: “All legally blind individuals in
19 the United States who have attempted to access Target.com and as a result have been denied
20 access to the enjoyment of goods and services offered in Target stores.” 2007 WL 1223755, *4
21 (N.D. Cal. Apr. 25, 2007).
22 Defendant argues that the class in this case is not ascertainable because, Defendant
23 speculates, it may include “testers.” Such speculation does not make the class unascertainable,
24 and is, in any event, based on several incorrect premises. Defendant asserts that testers lack
25 standing to sue. See Reply Br. at 3-4; Opp. Br. at 15-16. As an initial matter, according to
26 Judge Gould’s concurring opinion, this is no longer the law in this circuit. Gordon v.
27 Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir. 2009) (“[W]e accord standing to individuals
28

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1 who sue defendants that fail to provide access to the disabled in public accommodation as

2 required by the Americans with Disabilities Act (“ADA”), even if we suspect that such

3 plaintiffs are hunting for violations just to file lawsuits.” (Citing Molski v. Evergreen Dynasty

4 Corp., 500 F.3d 1047, 1061-62 (9th Cir. 2007) (per curiam)).

5

Defendant cites two cases addressing testers. The court in the first of these cases, Cross

6 v. Pacific Coast Plaza Investments, L.P., 2007 WL 951772, at *2 (S.D. Cal. Mar. 6, 2007),

7 defined a “tester” to be someone who “falsely pos[es] as a disabled individual.” Such

8 individuals are not included in Plaintiffs’ class, which is limited to individuals with disabilities

9 who use wheelchairs or electric scooters.

10

The second case defined “tester” as a person whose “sole purpose in visiting a local

11 business is to litigate.” Harris v. Stonecrest Care Auto Ctr., LLC, 472 F. Supp. 2d 1208, 1219

12 (S.D. Cal. 2007). Harris held only that testers lack standing to seek injunctive relief under the

13 ADA because they have no reason to return to the establishment. It did not address whether

14 testers may seek injunctive relief or damages under state law, a point made explicit in a later

15 decision in that case. Harris v. Stonecrest Care Auto Ctr., LLC, 559 F. Supp. 2d 1088, 1091

16 (S.D. Cal. 2008) (“The Court dismissed Plaintiff’s supplemental state claims because his

17 federal claim was dismissed, and not because the Court found Plaintiff lacked standing to bring

18 those claims.”). Indeed, the second decision suggested that testers have standing to seek

19 injunctive relief under state law, which extends such relief to those “potentially aggrieved.”

20 Id. at 1091.

21

Testers do have standing to obtain damages under state law. Brunnen v. Mission

22 Ranch, 2000 WL 33915634, at *3 (N.D. Cal. Dec. 19, 2000). A tester, like any class member,

23 is entitled to damages upon a showing that “‘he or she was denied equal access on a particular

24 occasion.’” Id. (quoting Donald). Thus Defendant’s contention that the Court will have to

25 examine the subjective motivation for each class member’s visit to a restaurant to weed out

26 testers is simply wrong. Testers -- to the extent they even exist, a matter of pure speculation --

27 are entitled to damages based on the same standard applicable to all class members.

28

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1

B. The Classes Satisfy The Numerosity Requirement.

2

The 2004 Certification Order found that the numerosity requirement was met based on

3 a number of facts, including that the class is geographically dispersed, and that there were fifty

4 million transactions at the covered restaurants in 2002 alone. Thus as a matter of common

5 sense, the class is large. Moeller, 220 F.R.D. at 608. This conclusion is even more apt now.

6 While the Court in its 2004 Certification Order assumed that violations were widespread

7 throughout the covered restaurants, it has now been established through the 2007 SJ Order that

8 there are indeed violations in more than 160 restaurants. Further, at the time of the 2004

9 Certification Order, the limitations period was just over two years, while it is now more than a

10 decade, meaning that many more class members have been to covered restaurants in the

11 interim.

12

Defendant does not challenge any of these findings in the 2004 Certification Order, and

13 does not argue that the Rule 23(b)(2) and (b)(3) classes identified by Plaintiffs do not meet the

14 numerosity requirement. Rather, it asserts that hypothetical single-restaurant subclasses would

15 not meet the numerosity requirement. Reply Br. at 5. Whether or not that is true is irrelevant

16 because Plaintiffs do not seek single-restaurant subclasses.

17

C. The Classes Satisfy The Typicality Requirement.

18

Plaintiffs in their Opening Brief identified numerous cases, virtually identical to the one

19 at bar, in which the typicality requirement was found to have been met.7 Most important, the

20 Ninth Circuit in Armstrong, 275 F.3d at 868-869, held that a class of persons with disabilities

21 challenging, among other things, architectural barriers met the typicality requirement.

22

Defendant, without even citing Armstrong, let alone attempting to distinguish it, argues

23 that the typicality requirement is not met here because the Named Plaintiffs have not been to

24 every restaurant covered by the class. Reply Br. At 16. Typicality, however, simply requires

25 that the Named Plaintiffs have injuries that are “similar to those of” class members, and that the

26 injuries result from the same injurious course of conduct. Armstrong, 275 F.3d at 869. The

27

28

7

See cases cited on p.5 supra.

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1 Ninth Circuit held that this standard was met where “mobility impaired individuals [seek] to

2 overcome . . . physical barriers . . .” Id. This is precisely the situation in the case at bar.

3

Defendant’s entire argument rests on Castaneda. That decision, however: (1) came at a

4 much earlier point in the case, without the significant evidence of commonality and typicality

5 that exists here; (2) did not cite or mention Armstrong; (3) explicitly distinguished the 2004

6 Certification Order in this case based on the very different facts of the two cases, including that

7 Defendant’s policies in this case are centralized; and (4) involved challenges to all architectural

8 elements in the defendant’s restaurants, whereas Plaintiffs in this case are only challenging five

9 Key Barriers.

10

D. Plaintiffs’ Request To Narrow The Damages Class To Common Questions

That Can Easily Be Resolved Does Not Make Them Inadequate.

11

In their opening brief, Plaintiffs demonstrated that they easily meet the adequacy

12

requirements as set forth by the Ninth Circuit.

13

One of the grounds on which Defendant contests adequacy is the assertion that

14

Plaintiffs have fought against providing notice to the class, with an opt-out right. Reply Br. at

15

20. This is demonstrably wrong. In 2004, Plaintiffs informed the Court and Defendant that

16

they believed that “notice, with an opportunity to opt out, should be provided to the class,” but

17

Defendant argued that it was “premature to address Class Notice.” ECF 93 at 6. In 2010,

18

Plaintiffs moved for leave to issue notice to the class, with an opt-out right, and Defendant

19

opposed this motion. See ECF 513-15.

20

Defendant asserts that Plaintiffs are not adequate based on certain strategic decisions

21

they have made, including their request to narrow class damages claims to five Key Barriers.

22

According to Defendant, class damages resulting from any other barriers would be barred by

23

the doctrine of res judicata. Defendant is wrong for three reasons.

24

First, Plaintiffs have made the strategic decision, based on more than a thousand

25

interviews with class members, and their analysis of the law, that: the Key Barriers have had by

26

far the biggest and most common impact on the class; given the nature of the Key Barriers,

27

class members would have likely been impeded by at least one of them during a visit, and thus

28

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1 any encounters with other types of barriers during a visit would not entitle them to additional

2 statutory damages; and damages claims relating to these barriers are the most likely to be

3 certified. Numerous courts have held that named plaintiffs have the power -- and obligation --

4 to limit class claims in order to increase the likelihood that the class will be certified. See, e.g.,

5 Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006) (“Refusing to certify a

6 class because the plaintiff decides not to make the sort of person-specific arguments that render

7 class treatment infeasible would throw away the benefits of consolidated treatment”); In re

8 Conseco Life Ins. Co. LifeTrend Ins. Sales and Mktg. Litig., 270 F.R.D. 521, 532 (N.D. Cal.

9 2010) (“Plaintiffs are permitted to press a theory . . . that affords them the best chance of

10 certification and of success on behalf of the class.”); Chakejian v. Equifax Info. Servs. LLC,

11 256 F.R.D. 492, 499-500 (E.D. Pa. 2009) (quoting Murray, 434 F.3d at 953).

12

Second, class members who wish to pursue damages claims arising from barriers other

13 than the Key Barriers will have the right to opt out,8 and obviously res judicata will have no

14 bearing on their claims. 18A Fed. Prac. & Proc. Juris. § 4455 (2d ed.) (Stating that “class

15 members who properly avail themselves of an opportunity to ‘opt out’ of the class action” are

16 not bound by it); see also Gunnells, 348 F.3d at 432 (rejecting argument that plaintiff’s

17 decision to narrow claims to those common to class prejudiced class members with individual

18 claims because those class members could opt out); In re Light Cigarettes Mktg. Sales

19 Practices Litig., 271 F.R.D. 402, 415 (D. Me. 2010) (rejecting argument that plaintiffs, who

20 had not included personal injury claims in the proposed class, were not adequate because class

21 members with such claims could opt out).

22

Finally, Defendant gets the law of res judicata wrong. Under Plaintiffs’ proposal, class

23 damages claims concerning barriers other than the five Key Barriers would be excluded from

24 the class, and would not be litigated in this action. Defendant argues that these claims would

25 nonetheless be barred by res judicata because they are claims that “could have been raised” in

26 this litigation. While this may generally be true in cases involving individual plaintiffs (and the

27

28

8

See Rule 23(c)(2)(B)(v).

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1 case cited by Defendant for this proposition involved individual plaintiffs), res judicata

2 principles are applied very differently in class actions, as explained by a leading treatise:

3

Other cases provide equally clear illustrations of the need to adjust claim-preclusion

rules to distinguish between the rules that apply to individual actions and the rules that

4

apply to class actions. So an individual who has suffered particular injury as a result of

practices enjoined in a class action should remain free to seek a damages remedy even

5

though claim preclusion would defeat a second action had the first action been an

individual suit for the same injunctive relief.

6

18A Fed. Prac. & Proc. Juris. § 4455 (2d ed.); see also Hiser v. Franklin, 94 F.3d 1287, 1293

7

(9th Cir. 1996) (Recognizing that “res judicata must be applied carefully in the class action

8

context.”).

9 In a class action, claims that are not actually litigated,9 or that are excluded from the

10 class,10 are not barred by res judicata from being brought in subsequent actions by class

11

members. This is true even if the claims in the subsequent actions “overlap with the common

12

claims” in the class action. 5 Newberg on Class Actions § 16:29 (4th ed.).

13

The Ninth Circuit has explained why res judicata does not apply to claims that “could

14

have been raised” during the class action: “If all class members had to bring their own

15

individual claims in addition to the common class claims, it would destroy the efficiency of

16

having class actions and reduce the benefit of joining such a suit.” Akootchook v. United

17

States, 271 F.3d 1160, 1165 (9th Cir. 2001); see also Hiser, 94 F.3d at 1293 (Finding that if

18

normal res judicata rules were applied to class actions, “it would essentially make class actions

19

obsolete. . . No responsible attorney would file a class action challenging a prison condition,

20

because by doing so, all future claims by prisoners challenging an unconstitutional condition

21

could be barred -- even if the specific issue was never raised in the previous litigation.”).

22

Examples of the limits of the application of res judicata in class actions can be found in

23

a number of contexts. For example:

24

25

9

See, e.g., Cameron v. Tomes, 990 F.2d 14, 17 (1st Cir. 1993); Marshall v.

Kirkland, 602 F.2d 1282, 1295–1298 (8th Cir. 1979); 5 Newberg on Class Actions § 16:29 (4th

26 ed.).

27

10 18A Fed. Prac. & Proc. Juris. § 4455 (2d ed.) (After a class action, “individual

actions remain available to pursue any other questions that were expressly excluded from the

28 class action.”).

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1

• The Supreme Court and the Ninth Circuit have held that a final determination

on the merits in class action suits alleging illegal patterns or practices do not

2

preclude later suits involving the same parties for individual instances of such

illegal actions. See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867,

3

880 (1984); Leandry v. County of Los Angeles, 352 Fed. Appx. 214, 215 (9th

Cir. 2009).

4

• The Ninth Circuit has held that a class action suit seeking only declaratory and

5

injunctive relief does not bar subsequent individual damages claims by class

members, “even if based on the same events.” Hiser, 94 F.3d at 1291.

6

Here, because class damages claims arising from barriers other than the five Key

7

Barriers will be excluded from the class, and will not actually be litigated, res judicata will not

8

bar class members from bringing their own actions asserting these claims.

9

IV. Defendant’s Non-Class Certification Arguments Should Be Rejected.

10

A. Defendant’s Request To Revisit The 2007 SJ Order Should Be Rejected.

11

Defendant argues for the first time in its Reply Brief that the Court should revisit the

12

2007 SJ Order on the grounds that there are 14 restaurants which it did not design or construct

13

and is thus not liable under the design and construct provisions of the ADA. This argument

14

should be rejected for three reasons: (1) having waited almost five years to assert this

15

argument, Defendant has waived it; (2) as a factual matter, Defendant did design and construct

16

these restaurants, and its claim to the contrary contradicts its interrogatory responses; and (3)

17

even assuming arguendo that Defendant was both factually and legally correct, it would have

18

no impact on this Court’s finding that Defendant “has engaged in numerous violations of state

19

and federal accessibility requirements.” FFCL at 38.

20

1. Defendant Has Waived Its Design And Construct Argument.

21

In this case, the Court and the parties spent a great deal of time on Plaintiffs’ partial

22

summary judgment motion. The parties extensively briefed the motion, including submission

23

of a surreply brief, multiple submissions of supplemental authorities, and a fully briefed motion

24

to reconsider. See ECF 255, 260, 269, 271, 280, 292, 298, 300, 301, 302-05, 319, 331, 335,

25

339, 342-44, 355 & 367. All told, the briefing cycle took more than a year, beginning with

26

Plaintiffs’ submission of their motion in February 2007, ECF 255, and ending with the order

27

denying Defendant’s motion to reconsider in March 2008, ECF 367. Nowhere in any of those

28

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Page 23

Case4:02-cv-05849-PJH Document679 Filed04/06/12 Page31 of 32

1 briefs did Defendant argue that it was not liable under the ADA’s design and construct

2 provisions because it had not designed and constructed some of the restaurants at issue.

3

In 2007, Defendant had both the law and the facts necessary to have made this

4 argument. This is demonstrated by the fact that it made this argument as to these precise

5 restaurants in its 2008 summary judgment motion, which depended on pre-2007 facts and law.

6 ECF 404 at 3. In that motion, Defendant based its factual argument on documents from 1998 7 and 2001,11 and its legal argument on the 2004 decision in Rodriguez v. Investco, L.L.C., 305 F.

8 Supp. 2d 1278, 1282 (M.D. Fla. 2004). ECF 404 at 14 n.8. Thus by failing to raise this

9 argument in response to Plaintiffs’ 2007 motion, Defendant has waived it. See, e.g., Arik v.

10 Astrue, 2010 WL 2557493, at *3 (N.D. Cal. June 21, 2010) (Holding that the defendant waived

11 an argument “by failing to raise it in his opposition to Plaintiff’s motion for summary

12 judgment.”).

13

2. Defendant Is Factually Wrong.

14

Relying on a 2001 purchase and sale agreement that it submitted in support of its 2008

15 motion for summary judgment, Defendant lists 14 restaurants that it asserts it did not design or

16 construct. Reply at 8-9 (citing Decl. of Steve Elmer, Exs. 22, 23, ECF 404-2). This is

17 inaccurate. In response to Defendant’s motion, Plaintiffs demonstrated that 13 of these 14

18 restaurants were designed and constructed by Defendant, sold to a third-party, and then

19 repurchased by Taco Bell through the purchase and sale agreement on which it relied -- and

20 once again relies. See ECF 409 ¶¶ 16(d)-(q) & Exs. 1, 46-59. Even if this legal argument

21 were timely, properly raised, and legally meritorious, it is factually unsupported.

22

3. Even Assuming Arguendo That Defendant Is Correct, There Would

Be No Impact on the Finding That Defendant “Has Engaged in

23

Numerous Violations of State and Federal Accessibility

Requirements.”

24

The 2007 Order found almost 400 violations in just over 160 restaurants. Assuming

25

arguendo that Defendant is correct and that the 2007 Order should not have included any

26

element in the 14 restaurants it has identified, that Order still held that there were more than

27

28

11 See ECF 404-2 at ¶ 5.

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Case4:02-cv-05849-PJH Document679 Filed04/06/12 Page32 of 32

1 350 violations among 150 restaurants. See Declaration of Timothy P. Fox at ¶¶ 2-3 (filed

2 concurrently herewith). This easily supports this Court’s conclusion that Defendant has

3 “engaged in numerous violations of state and federal accessibility requirements.” FFCL at 38.

4

B. Standing.

5

Defendant argues that the Named Plaintiffs lack standing to seek injunctive relief as to

6 restaurants they have not visited. Reply Br. at 17. This Court, however, has already held that

7 “in a certified class action, the injury, and the corresponding relief, extends to the class as a

8 whole.” FFCL at 39 (citing Armstrong).

9

C. Statute of Limitations.

10

Defendant, citing Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008), argues that the

11 “precise timing of when a particular store” was open for business must be determined because

12 it affects the accrual of the statute of limitations. Reply Br. at 9-10. Once again, this Court has

13 already rejected this argument. See ECF 416.

14

CONCLUSION

15

For the reasons set forth above, and in Plaintiffs’ Opening Brief, Plaintiffs respectfully

16 request that the Decertification Motion be denied, and Plaintiffs’ Motion to Alter and Amend

17 the Class Certification Order be granted.

18

19

Respectfully submitted,

20

FOX & ROBERTSON, P.C.

21

By: /s/ Timothy P. Fox

22

Timothy P. Fox

23 April 6, 2012

Attorneys for Plaintiffs

24

25

26

27

28

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Page 25

 
 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)
220 F.R.D. 604 United States District Court,
N.D. California.
Francie MOELLER, et al., Plaintiffs, v.
TACO BELL CORPORATION, Defendant.
No. C 02–5849 MJJ. | Feb. 23, 2004.
Attorneys and Law Firms
*605 Jamerson C. Allen, Jackson Lewis LLP, San Francisco, CA, Gregory A. Eurich, Jimmy Goh, Holland & Hart LLP, Denver, CO, for Taco Bell Corp., Defendant.
Timothy P. Fox, Amy F. Robertson, Antonio Lawson, Fox & Robertson, P.C., Denver, CO, Antonio M. Lawson, Lawson Law Offices, Oakland, CA, for Craig Thomas Yates, Edward Muegge, Francie E. Moeller, Katherine Corbett, Plaintiffs.
Opinion
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
JENKINS, District Judge.
INTRODUCTION
Plaintiffs Francie Moeller et al. bring this case to remedy alleged architectural barriers at Defendant Taco Bell Corporation’s corporate-owned and/or operated restaurants in California that Plaintiffs claim discriminate against a large number of patrons who use wheelchairs or scooters. The putative class seeks an injunction ordering Defendant to adopt policies to ensure access for customers who use wheelchairs and scooters, and to bring all of its facilities into compliance with the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), the Unruh Civil Rights Act, California Civil Code § 51 et seq. (“the Unruh Act”), and the California Disabled Persons Act, California Civil Code § 54 et seq. (the “CDPA”). The putative class seeks the minimum statutory damages per offense under the Unruh Act and the CDPA. Presently before the Court is Plaintiffs’ motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. This motion requires the Court to decide whether Plaintiffs have met the requirements set

forth in Rule 23 in order that this action may proceed as a class action. For the reasons set forth below, the Court GRANTS Plaintiffs’ motion.

FACTUAL BACKGROUND
A. Named Plaintiffs The named plaintiffs in this case—Francie Moeller, Ed Muegge, Katherine Corbett and Craig Yates—are among the more than 150,000 Californians who use wheelchairs or scooters for mobility. Declaration of Timothy Fox in Support of Plaintiffs’ Motion for Class Certification (“Fox Decl.”), Ex. 2 at 2. The named plaintiffs are all active members of their communities, and all are dedicated to advocating for the rights of persons with *606 disabilities. Ms. Moeller, for example, is a past chair of the Bay Valley District Organization of Business and Professional Women, and is the current chair of the Disability Caucus of the California Democratic Party. Plaintiffs’ Motion for Class Certification (“Mot.”) at 3. Mr. Muegge taught disability advocacy classes at Sonoma State University and Santa Rosa Junior College, while Ms. Corbett has, on several occasions, testified at legislative hearings on issues relating to persons with disabilities. Id. Mr. Yates is a Parks and Recreation Commissioner for the City of San Rafael and is on the Advisory Boards of Golden Gate Transit and the Metropolitan Transit Commission, and both Boards oversee issues concerning use of public transit systems by the elderly and persons with disabilities. Id.

B. The Americans with Disabilities Act 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); PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (holding that the ADA provides a “broad mandate” to eliminate discrimination against people with disabilities). The statute recognizes that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency 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, both with respect to the accessibility of their physical facilities and with respect to their policies and practices.1

1

The parties do not dispute that Taco Bell restaurants are

“public accommodations” within the meaning of the

1

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004) ADA and the relevant California disability laws.

The ADA required the Department of Justice (“DOJ”) 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 (“DOJ Standards”). See 28 C.F.R. pt. 36, app. A.2 The DOJ Standards contain detailed design specifications for public accommodations covering a variety of architectural elements, including, for example, parking lots, food service lines, accessible routes, and restrooms. Id.

2

The DOJ’s Title III regulations are “entitled to

deference.” Bragdon v. Abbott, 524 U.S. 624, 646, 118

S.Ct. 2196, 141 L.Ed.2d 540 (1998).

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 these facilities must comply with the DOJ Standards. 42 U.S.C. § 12183(a)(3); 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 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 altered since January 26, 1992, architectural barriers are required to be removed where it is “readily achievable” to do so. 42 U.S.C. § 12182(b)(2)(A)(iv).3 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 (emphasis added).

3

The question 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).

C. The Unruh Act and CDPA 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) (Unruh Act), § 54.1(a)(1) (CDPA). A

prevailing plaintiff is entitled to, among other relief, statutory minimum damages regardless *607 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 only the statutory minimum damages for each offense.
All buildings constructed4 or altered5 after July 1, 1970, must comply with standards governing the physical accessibility of public accommodations. D’Lil v. Stardust Vacation Club, 2001 WL 1825832, 2001 U.S. Dist. LEXIS 23309 at *21–22 (E.D.Cal.2001). From December 31, 1981 until the present, the standards have been set forth in Title 24 of the California regulatory code (the “California Standards”). People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 134, 197 Cal.Rptr. 484 (1983). 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. California Standards § 1101B.3.

4

California Health & Safety Code § 19956.

5

California Health & Safety Code § 19959.

A violation of a California Standard constitutes a violation of both the CDPA and the Unruh Act. See, e.g., Arnold v. United Artists Theatre Circuit, Inc., 866 F.Supp. 433, 439 (N.D.Cal.1994). A violation of the ADA also constitutes a violation of both statutes. Cal. Civ.Code §§ 51(f) & 54(c).

D. Defendant Taco Bell Corporation Taco Bell Corporation, a subsidiary of Yum! Brands, Inc., sells Mexican fast food throughout the United States and elsewhere. The company owns and/or operates 220 restaurants in California (“corporate restaurants”). See Fox Decl., Ex. 3. Although there are other California Taco Bell restaurants operated by Defendant’s franchisees, Plaintiffs seek class certification in this case only with respect to patrons of the corporate restaurants.

E. Accessibility at Defendant’s California Restaurants Plaintiffs set forth what they allege to be a “consistent pattern of accessibility problems at Defendant’s
2

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)

California restaurants.” Mot. at 7. Among these are inaccessible: (1) queue lines6; (2) entrances; (3) condiment and drink dispensers; (4) dining rooms; (5) restrooms; and (6) parking lots. Id. at 7–11.

6

A queue line is a path cordoned off with barriers

causing patrons to form a single line. Several width

requirements apply to queue lines under the ADA and

California Standards.

All individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after December 17, 2001, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of California Taco Bell corporate restaurants.

LEGAL STANDARD
To maintain a class action under Rule 23, the proponents of the class must first satisfy the four prerequisites of Rule 23(a). According to Rule 23(a), a class may be certified only if:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
Federal Rule of Civil Procedure 23(a). If these requirements are met, the proponents must also show that they have met one of the three subsections of Rule 23(b). Here, Plaintiffs seek class certification under Rule 23(b)(2), arguing that Defendant has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate injunctive relief or corresponding declaratory relief with respect to the class as a whole.”
The proponents bear the burden of demonstrating that all the prerequisites for class designation are met. See In re Northern District of California Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847, 854 (9th Cir.1982). In analyzing whether the class meets the prerequisites noted above, a court is to take the substantive allegations of the complaint as true, and may also consider *608 extrinsic evidence submitted by the parties. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975).
ANALYSIS
Plaintiffs seek certification of the following class:

A. Rule 23(a) Requirements
1. Numerosity [1] Rule 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. Plaintiffs do not need to state the exact number of potential class members, nor is a specific number of class members required for numerosity. Bates v. United Parcel Service, 204 F.R.D. 440, 444 (N.D.Cal.2001).7 A court may make common sense assumptions to support a finding that joinder would be impracticable. 1 Robert Newberg, Newberg on Class Actions, § 3:3 (4th Ed.2002) (“Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.”). In addition, the fact that a class is geographically dispersed, and that class members are difficult to identify, supports class certification. 1 Newberg § 3:6; Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D.Cal.1996).

7

But it has been suggested that a class exceeding one

hundred members would satisfy the numerosity

requirement. See Berlowitz v. Nob Hill Masonic

Management, Inc., 1996 WL 724776 at *3, 1996 U.S.

Dist. LEXIS 22599 at *7 (N.D.Cal.1996).

In this case, census statistics demonstrate that there are approximately 151,000 non-institutionalized people sixteen years of age or older in California who use wheelchairs, and this number does not include institutionalized people who use wheelchairs, people under the age of sixteen years who use wheelchairs, or people who use scooters for mobility, all of whom are potential members of the class.8 Restaurants covered by the proposed class had more than fifty million transactions in 2002 alone. Taking as true Plaintiffs’ allegations that many or all of those restaurants have unlawful architectural barriers, the only way that this class is not numerous is if virtually none of Defendant’s fifty million transactions involved persons who use wheelchairs or scooters. This is an unreasonable assumption. As a matter of common sense, the class in
3

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)

this case is large.9

8

Defendant argues that census data is insufficient to

establish numerosity. In fact, however, “[c]ensus data

[is] frequently relied on by courts in determining the

size of proposed classes.” 1 Newberg § 3:3; Colorado

Cross–Disability Coalition v. Taco Bell Corp., 184

F.R.D. 354, 358 (D.Colo.1999); Jorgensen v. Jack in

the Box Restaurants, No. C95–0406 SAW

(N.D.Cal.1997) (Mot., Ex. 7); Berlowitz, 1996 WL

724776 at *3, 1996 U.S. Dist. LEXIS 22599 at *7–8;

Arnold v. United Artists Theatre Circuit, Inc., 158

F.R.D. 439, 448 (N.D.Cal.1994).

9

Defendant contends that Plaintiff’s failure to

specifically identify a large number of individual class

members proves that there is no numerosity. The Court

infers the opposite conclusion. See Leiken v. Squaw

Valley Ski Corp., 1994 WL 494298, 1994 U.S. Dist.

LEXIS 21281 at *13 (E.D.Cal.1994) (“The difficulties

of identifying additional class members at this stage in

the litigation support certification, rather than undercut

[ ] it.”) (emphasis added).

In addition, the class is geographically dispersed, stretching from San Diego to Napa, and the class members are difficult to identify. For these reasons, the Court finds that joinder of all class members is impracticable and that the class satisfies Rule 23(a)(1).

2. Commonality [2] Rule 23(a)(2) requires that there be questions of law or fact that are common to the class. The Ninth Circuit has held that the commonality requirement is “construed permissively,” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998), that “[a]ll questions of fact and law need not be common to satisfy the rule,” id., and that the requirements for finding commonality under Rule 23(a)(2) are “minimal.” Id. at 1020.
*609 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 established and class certification is appropriate. See, e.g., Colorado Cross– Disability Coalition, 184 F.R.D. at 359–60; Ambulatory Surgery, 197 F.R.D. at 526; Arnold, 158 F.R.D. at 449.
Arnold most closely parallels this case. There, a class of mobility-impaired persons alleged claims involving all California United Artists theaters10 under the ADA’s readily achievable standard (built and last remodeled prior to January 26, 1993) seeking modifications to create more wheelchair seating spaces, remove barriers to accessible

paths of travel, and alter restroom facilities where necessary for access. Arnold, 158 F.R.D. at 444. In addition, the plaintiffs brought claims under ADA Access Guidelines (constructed or altered after January 26, 1993) seeking compliance with the Act’s requirements for the minimal number of wheelchair locations, and accessible routes of egress. Id. In addressing the common question of law and fact element of Rule 23(a), Judge Henderson started his analysis by noting that the “requirement that there be questions of law or fact common to the class is ‘met by the alleged existence of common discriminatory practices.’ ” Id. (citing Walthall v. Blue Shield of California, 16 Fair. Empl. Prac. Cas. (BNA) 626, 628, 1977 WL 34 (N.D.Cal.1977)). As a corollary to this legal proposition, Judge Henderson appropriately stated that “the actions of the defendant need not affect each member of the class in the same manner.... Nor must all questions of law and fact involved in the dispute be common to all members of the class.” Id. In holding that the commonality requirement was met, Judge Henderson observed:

10

There were over seventy such theaters at the time.

Inadequate wheelchair accommodations at particular theaters are very likely to affect all wheelchair-users in the same way.... Thus the state of such accommodations at defendant’s various theaters, and the legal adequacy of those accommodations, are issue of fact and law common to all of those disabled persons affected by them. Id. at 449. In this case, the proposed class challenges the accessibility of a number of architectural elements, including queue lines, entrances, condiment and drink dispensers, dining areas, restrooms and parking lots. Like Arnold, the state of such elements at Defendant’s restaurants, and the legal adequacy of such elements, are issues of fact and law common to all class members. Factually, this case involves a homogeneous class of plaintiffs (individual wheelchair or scooter users) who are bringing multiple but common factual claims that will be determined pursuant to a common legal backdrop.
Defendant states that “the 220 company-owned restaurants encompass a multitude of architectural designs, based on approximately 30 different prototypes with different interior layouts and features.” Opp. at 7. It quotes Carlos Azalde, former Manager of Restaurant Design, as saying that “each particular prototype ha[s] an infinite number of seating layouts and different types of condiment stations.” Azalde Decl. at 85:11–13. The “unique architecture” argument has been rejected by a number of courts in disability cases. As the court in Arnold noted:
4

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)

[T]he specific design features challenged by plaintiffs are ones, some or all of which, they allege exist or have existed in many if not all of defendant’s theaters during the relevant period. From the fact that the same categories of design features are being challenged in each theater, it follows that the legality of those features are legal issues common to the claims of the members of all of the subclasses. In addition, where, as here, plaintiffs challenge conditions at several sites, all owned by a single corporate defendant, the legal standard applied under the ADA to evaluate the adequacy of the accommodations at each of the respective theaters is one that hinges, in part, on various corporation-wide factors such as the availability of resources.
Arnold, 158 F.R.D. at 449.11

11

Access Now, Inc. v. Walt Disney World Co., 211 F.R.D.

452 (M.D.Fla.2001), cited by Defendant, is

distinguishable most notably because there the

plaintiffs provided only “conclusory allegations” that

the defendant’s policies violated the ADA. Id. at 454–

55. In this case, Plaintiffs have specifically identified

the alleged deficiencies in Defendant’s policies.

As in Arnold, Plaintiffs here are challenging the “same categories” of architectural *610 barriers at Defendant’s restaurants, namely, those pertaining to queue lines, entrances, condiment and drink dispensers, dining rooms, bathrooms and parking lots.12

12

The Court notes that, if necessary, subclasses can be

created in this case to account for variations in the

prototypes used.

Defendant’s emphasis on the differences in its restaurants, in any event, overlooks the similarities. For example, all newly-constructed Taco Bell restaurants are built in accordance with prototypes designed by Taco Bell’s Architecture and Engineering (A & E) department located at Taco Bell’s corporate headquarters, and all large-scale retrofit projects are based on designs in “project books” prepared by the A & E department. Azalde Dep. at 18:14– 20; 20:11–14; 30:11–18. Taco Bell then convenes meetings with its construction managers and facilities managers—all of whom are employed by Taco Bell or its parent company—to familiarize them with the prototypes

or project designs, who then oversee the construction projects to make sure that they are done in compliance with the designs. Id. at 26:13–27:2; 27:24–28:16; 31:19– 24. Local contractors do not have the discretion to make any material modifications to these designs. Id. at 27:11– 23.13

13

Defendant highlights the architectural discretion

permitted local consultants and contractors without

clarifying that this pertains only to smaller-scale

remodel jobs. See Opp. at 7.

This centralized decision-making is an additional factor weighing heavily towards a finding of commonality, if it does not establish commonality outright. See Faulk v. Home Oil Co., 184 F.R.D. 645, 655 (M.D.Ala.1999) ( “the locus of decisionmaking authority is an important consideration when determining whether class certification is appropriate for systemic discrimination claims involving multiple facilities”); Buchanan v. Consolidated Stores Corp., 217 F.R.D. 178, 188 (D.Md.2003) (“The evidence of centralized decisionmaking is, therefore, sufficient for the court to conclude that Plaintiffs have fulfilled the commonality requirement.”).
Defendant also contends that the “readily achievable” standard under the ADA will require store-specific evaluations. Opp. at 9–10. However, even where a “readily achievable” analysis is necessary (i.e., for restaurants built prior to January 1993 which have not undergone substantial renovation), the readily achievable issue “hinges, in part, on various corporation-wide factors such as the availability of resources” and thus presents a question common to the class. Arnold, 158 F.R.D. at 449.

Finally, the class members seek only the minimum statutory damages per violation of the Unruh Act and the CDPA, to which they are entitled without proof of actual damages. Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000). Thus the only damages issue not common to the class is the simple question of the number of instances that individual class members were aggrieved by inadequate accommodations at Defendant’s restaurants during the period covered by the lawsuit. Arnold, 158 F.R.D. at 449.

For the above reasons, Plaintiffs have established the requirement of commonality under Rule 23(a)(2).14

14

Defendant contends that store-specific determinations

will be necessary because the CDPA allegedly permits

deviations from its provisions if they are necessary to

comply with other existing laws. Opp. at 10. Plaintiffs

note that this is an apparent reference to Cal. Civ.Code

§ 54.1(a)(1), but that this section has never been

5

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)
interpreted to allow a public accommodation to deviate from the California Standards. Reply at 9. However, even if Defendant could cite to a specific statute or regulation that would prevent it from complying with the Standards—which it has not done—the interplay between § 54.1(a)(1) and such statutes or regulations would present issues common to the class.
Defendant also argues that more store-specific issues are created by the existence of California Code of Regulations Title 24 § 101.17.11(4), which provides that certain accessibility barriers are permissible when complying with the regulations or providing equivalent facilitation would create an unreasonable hardship. Opp. at 10. Plaintiffs respond by noting that Defendant would have had to apply to the relevant enforcing agency for such an exception at the time of construction and that Defendant has not presented any evidence, either in opposing Plaintiffs’ motion for class certification or in discovery, that it has done so. Reply at 9–10. The Court notes that, in any event, the interpretation and application of § 101.17.11(4) would present issues common to the class.

*611 3. Typicality [3] Rule 23(a)(3) requires that the claims of the named plaintiffs be typical of those of the class. The Ninth Circuit does “not insist that the named plaintiffs’ injuries be identical with those of the other class members, only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same injurious course of conduct.” Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir.2001). “In a public accommodations suit ... where disabled persons challenge the legal permissibility of architectural design features, the interests, 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.
The named plaintiffs here, like members of the proposed class, all use wheelchairs or scooters for mobility and have encountered allegedly discriminatory barriers and policies at Defendant’s restaurants. The effect of these alleged barriers and policies is the same for the named plaintiffs as for the class. The named plaintiffs challenge these barriers under the same statutes and remedial theories as the class. Therefore, their claims satisfy the typicality requirement of Rule 23(a)(3).15

15

Defendant’s argument that the named plaintiffs have

not met the typicality requirement is based on its

argument that the named plaintiffs have not met the

commonality requirement. Opp. at 14. Because, as

explained above, the named plaintiffs have established

commonality, Defendant’s typicality argument also

fails.

4. Adequacy of Representation [4] Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. Resolution of two questions determines whether this requirement is met: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003).16

16

Defendant does not dispute Plaintiff’s counsel’s

adequacy as class counsel.

Defendant contends that Plaintiffs have not met the adequacy requirement because the named plaintiffs lack a thorough understanding of the case. Opp. at 15–18. Defendant points to the depositions of each of the named plaintiffs and cites language demonstrating that the named plaintiffs do not know how the various legal standards at issue in this case relate to the barriers allegedly confronted. Plaintiffs respond that the named plaintiffs’ knowledge of the case is sufficient. Reply at 12–14 (citing, e.g., Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966) (reversing dismissal of derivative action even though plaintiff had little knowledge of the nature of the suit or the underlying facts)).
The threshold of knowledge required to qualify a class representative is low; a party must be familiar with the basic elements of her claim. Burkhalter Travel Agency v. MacFarms International, Inc., 141 F.R.D. 144, 153–54 (N.D.Cal.1991), and will be deemed inadequate only if she is “startlingly unfamiliar” with the case. Greenspan v. Brassler, 78 F.R.D. 130, 133–34 (S.D.N.Y.1978). It is not necessary that a representative “be intimately familiar with every factual and legal issue in the case;” rather, it is enough that the representative understand the gravamen of the claim. In re Worlds of Wonder Securities Litigation, 1990 WL 61951 at *3, 1990 U.S. Dist. LEXIS 8511 at *12 (N.D.Cal.1990). Those courts that have found representatives inadequate have done so because the plaintiffs knew nothing about the case and completely relied on counsel to direct the litigation. See Welling v. Alexy, 155 F.R.D. 654, 659 (N.D.Cal.1994) (finding that plaintiff was inadequate because he showed a “complete lack of interest in the conduct of the case”); Koenig v. Benson, 117 F.R.D. 330, 337 (E.D.N.Y.1987) (finding plaintiff inadequate because of “alarming unfamiliarity” with lawsuit). While the named *612 plaintiffs here may
6

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004)
not be able to recite the DOJ and California Standards governing the layout of parking lots or the permissible resistance at the front door of a public accommodation, it is clear from the declarations and deposition excerpts submitted in this case that the named plaintiffs are sufficiently familiar with their claims to adequately represent the members of the proposed class. Requiring more risks undermining the class vehicle. As one court aptly stated:
The class action procedure exists, in part, for the benefit of plaintiffs with small claims who could not otherwise vindicate their rights. Adoption of defendant’s position would convert the class action into a device usable only by individuals with such a degree of sophistication that they would be capable of acting as their own attorneys.
Kaplan, 131 F.R.D. at 118.
Defendant also raises the notion that the named plaintiffs must have adequate resources to pay the costs associated with the case so that they may check the “unfettered discretion of counsel.” Opp. at 18. The 9th Circuit has not weighed in on whether the financial status of the named plaintiff is relevant to class certification. The Court very much doubts, however, that it would consider it to be. See In re West Coast Department Stores Antitrust Litigation, 1979 WL 1721 *1–2, 1979 U.S. Dist. LEXIS 8500 *1–3 (N.D.Cal.1979) (holding that courts should not take into account named plaintiffs’ financial status in class certification context and noting that weight of authority is to this effect). Plaintiff’s counsel has indicated that he is advancing litigation costs. Reply at 13. The Court agrees that “to deny a class whenever plaintiff’s counsel advances significant funds to plaintiffs of little or modest means would be to defeat the very purposes which class actions were designed to achieve.” Bartelson v. Dean Witter & Co., 86 F.R.D. 657, 675 (E.D.Pa.1980); Kaplan, 131 F.R.D. at 125 (where there is an agreement that named plaintiffs’ counsel will advance the costs of the litigation, “it is not relevant whether plaintiffs themselves ... ha[ve] sufficient resources to fund the litigation”).
The proposed class satisfies the adequate representation requirement of Rule 23(a)(4).
B. Rule 23(b) [5] The next determination is whether this case fits within one of the three subsections of Rule 23(b). Plaintiffs seek certification under subsection (b)(2). A class is proper under Rule 23(b)(2) if the party opposing the class “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 the class as a whole ....”
Plaintiffs allege that numerous architectural barriers exist at Defendant’s restaurants, that these barriers result from Defendant’s discriminatory policies concerning the design and accessibility of its restaurants, and that these barriers deny a large number of people the full and equal enjoyment of the restaurants. These allegations necessarily involve acts that are generally applicable to the class. Arnold, 158 F.R.D. at 452 (where class members challenged defendant’s failure to change certain architectural features found at its theaters, and the challenged design features affected all class members in the same way, such a scenario “is a paradigm of the type of action for which the (b)(2) form was created”); Civic Association of Deaf v. Giuliani, 915 F.Supp. 622, 634 (S.D.N.Y.1996) (“Because the proposed removal of the street alarm boxes will ... require injunctive relief applicable to the class as a whole, Rule 23(b)(2) also applies to the class”).

Nor does the fact that the class seeks monetary damages in addition to injunctive relief change this result. As long as Plaintiffs’ damages claims do not “predominate” over their claims for injunctive relief, certification under Rule 23(b)(2) is permissible. Molski v. Gleich, 318 F.3d 937, 950–51 (9th Cir.2003).17 Molski held that there is no *613 bright-line rule for determining predominance. Id. at 951. Rather, courts should look at the facts and circumstances of each case in an effort to determine the plaintiffs’ intent in bringing the suit. Id. Thus, for example, in Kanter v. Warner–Lambert, 265 F.3d 853, 860 (9th Cir.2001), the court found that an award of monetary damages was the “essential goal” in the litigation. And, in Linney v. Cellular Alaska Partnership, 151 F.3d 1234, 1240 (9th Cir.1998), the court compared the dollar value of the injunctive and monetary relief. As for the balancing test, it is difficult to perform such a test in a case like this one, when on one side of the scale sits the value of eliminating discriminatory barriers. Arnold, 158 F.R.D. at 451 (deeming such a balancing act “an almost impossible exercise as the importance of eradicating discriminatory practices ... through injunctive relief is virtually immeasurable.”).

17

Defendant claims that in footnotes 15 and 16 of the

Molski decision, the Ninth Circuit adopted the position

that the (b)(2) analysis is the “functional equivalent” of

the (b)(3) analysis. Opp. at 20. Defendant then argues

that Plaintiff cannot satisfy the (b)(3) requirements. Id.

Molski stands for no such proposition. Footnote 15 of

that case simply discusses a method of determining

whether Rule 23(b)(2)’s requirement that injunctive

relief predominate over monetary relief is satisfied.

Footnote 16 discusses due process concerns raised

when a class settlement waives class members’ claims

7

Moeller v. Taco Bell Corp., 220 F.R.D. 604 (2004) to treble damages.

Neither does it appear that Plaintiffs’ “essential goal” in this case is an award of monetary damages. Plaintiffs are seeking an injunction requiring Taco Bell to build its new restaurants in compliance with the DOJ and California Standards and to retrofit its existing restaurants so that they comply with these Standards. They are seeking only the statutory minimum of damages under the Unruh Act and the CDPA.18 The Court cannot say that Plaintiffs’ claims for monetary damages predominate over its claims for injunctive relief.

18

As noted earlier, the ADA does not provide a damages

remedy.

This result is consistent with the purpose of Rule 23(b)(2).19 “[S]ubdivision (b)(2) was added to Rule 23 in 1966 primarily to facilitate the bringing of class actions in the civil rights area,” in large part because “the class suit is a uniquely appropriate procedure in civil rights cases, which generally involve an allegation of discrimination against a group as well as the violation of rights of particular individuals.” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §§ 1775–76 (2d Ed.1986). Indeed, the Supreme Court has found that “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Adv. Comm. Notes, 28 U.S.C.App., p. 697). As the court in Arnold put it,

19

It is also consistent with the holding of a number of

courts which have certified under Rule 23(b)(2) classes

of persons with disabilities seeking injunctive and

monetary relief for alleged violations of the ADA, the

Unruh Act and the CDPA. See, e.g., Arnold, 158 F.R.D.

at 461–62; Berlowitz, 1996 WL 724776 at *1, *2, 1996

U.S. Dist. LEXIS 22599 at *1, 5; Leiken, 1994 WL

494298, 1994 U.S. Dist. LEXIS 21281 at *15–16.

[I]n this case the class members, rather than challenging individual actions taken by the defendant against each of them separately, all challenge the same actions: defendant’s failure to change certain architectural features found at its various theaters. The challenged design features affect all class members in almost precisely the same way because of common distinguishing characteristics shared by all of the class members: their status as wheelchair-using or semiambulatory disabled persons.... In view of this high degree of homogeneity, it is clear that this suit is a paradigm of the type of action for which the (b)(2) form was created. Arnold, 158 F.R.D. at 452. Plaintiffs satisfy the Rule 23(b)(2) requirement.

CONCLUSION
Plaintiffs having satisfied all the requirements under Rule 23, the Court GRANTS their motion for class certification. The following class is certified:
All individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after December 17, 2001, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or *614 accommodations of California Taco Bell corporate restaurants.20

20

Counsel for Defendant indicated at the hearing on this

matter that Defendant had no objection to the time

period provided in the proposed class.

IT IS SO ORDERED.
	  

8

 
 United States District Court, N.D. California.
Francie E. MOELLER, et al., Plaintiffs, v.
TACO BELL CORPORATION, Defendant. No. C 02-5849 MJJ.
July 30, 2003.
Timothy P. Fox, Amy F. Robertson, Fox & Robertson, P.C., Denver, CO, Antonio M. Lawson, Lawson Law Offices, Oakland, CA, for Plaintiffs.
Gregory A. Eurich, Jimmy Goh, Holland & Hart LLP, Jeffrey H. Dasteel, Titania Jean Mooney, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, CA, Jamerson C. Allen, Jackson Lewis LLP, San Francisco, CA, Thomas P. Howard, Louisville, CO, for Defendant.
ORDER GRANTING PLAINTIFFS' MOTION TO AMEND CLASS ACTION COMPLAINT
JENKINS, J.
*1 Plaintiffs' unopposed motion to amend their class action complaint is hereby GRANTED. Plaintiffs may submit an amended complaint within twenty days of this order.
IT IS SO ORDERED.

 
 United States District Court, N.D. California.
Francie MOELLER, et al., Plaintiffs, v.
TACO BELL CORPORATION, Defendant. No. C 02-5849 MJJ.
Dec. 7, 2004.
Timothy P. Fox, Amy F. Robertson, Ari Reuben Krichiver, Fox & Robertson, P.C., Denver, CO, Antonio Michael Lawson, Lawson Law Offices, Oakland, CA, Brad Seligman, Jocelyn Dion Larkin, Impact Fund, Berkeley, CA, Mari Mayeda, Attorney at Law, Berkeley, CA, for Plaintiffs.

Because the parties are familiar with the factual and procedural history of the case, it will not be repeated here except as necessary to explain the disposition of the current motion. Following the Court's certification of Plaintiffs' class, the parties engaged in two mediation sessions. As a product of these sessions, the parties agreed (“the Agreement”) to a pilot program to survey 20 of Defendant's California restaurants (the “Pilot Stores”). The Agreement stated that the dimensions of the Pilot Stores gathered during the surveys were to serve as stipulations of facts between the parties. The Agreement also stated that the dimensions of the Pilot Stores were not to be used as examples of current conditions as other Taco Bell restaurants. A neutral expert surveyed each of the Pilot Stores using a survey form prepared by the parties that contained approximately 499 accessibility elements for each restaurant. The results of these surveys have been submitted to the Court and form the basis of Defendant's current motion. Additionally, the Court has appointed a Special Master to conduct site visits at the remaining restaurants to determine the dimensions of the accessibility elements at each restaurant.

Gregory F. Hurley, Richard Hidehito Hikida, Esq., Greenberg Traurig LLP, Irvine, CA, Thomas P. Howard, Louisville, CO, for Defendant.

LEGAL STANDARD

ORDER DENYING DEFENDANT'S MOTION FOR MODIFICATION OF CLASS DEFINITION
MARTIN J. JENKINS, District Judge.
INTRODUCTION
*1 Pursuant to Federal Rule of Civil Procedure 23(c)(1), Defendant moves the Court to modify the Rule 23(b)(2) class previously certified by the Court. Defendant argues that continued discovery in this action has revealed that the existing class should be modified to exclude state law damages for three reasons: 1) new evidence demonstrates that there are no common issues of fact with regards to damages determinations; 2) the class representative's damages claims are not typical of the class; and 3) the damages issues predominate over the injunctive relief requested. For the following reasons, Defendant's motion is DENIED.

Federal Rule of Civil Procedure 23(c)(1)(C) states that an order certifying a class “may be altered or amended before final judgment.” The district court has broad discretion in deciding whether to modify or decertify a class, but the court “must define, redefine, subclass and decertify as appropriate in response to the progression of the case from assertion to facts.” Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983). In other words, “[s]ince the class certification is usually made early in the case, it may become necessary to modify the class definition after further discovery or other events which alter the parameters of the class.” Irwin v. Mascott, 2001 U.S. Dist. LEXIS 3285, at *13 (N.D.Cal. Feb. 27, 2001). In this sense, “all class certifications are essentially temporary until a final judgment is entered.” Id. at *12-13.
ANALYSIS
To maintain a class action under Rule 23, the plaintiff class must satisfy four requirements under Rule 23(a):

FACTUAL BACKGROUND

(1) the class is so numerous that joinder of all members is impracticable,

*2 (2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
Federal Rule of Civil Procedure 23(a). Defendant argues that Plaintiffs' damages claims fail to satisfy the commonality and typicality requirements under Rule 23(a) and must therefore be excluded from the injunctive relief class. Defendant also argues that Plaintiffs' damages claims fail to satisfy the requirements of Rule 23(b)(2) because these claims predominate over Plaintiffs' claims for injunctive relief.
A. Commonality
Rule 23(a)(2) requires that there be questions of law or fact that are common to the class. The Ninth Circuit has held that the commonality requirement is “construed permissively,” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998), that “[a]ll questions of fact and law need not be common to satisfy the rule,” id., and that the requirements for finding commonality under Rule 23(a)(2) are “minimal.” Id. at 1020.
Defendant initially argues that Plaintiffs' damages claims fail to satisfy the commonality requirement because the following are not common questions in a damages analysis: 1) whether a particular element at a particular restaurant currently complies with ADAGG or Title 24 for purposes of injunctive relief; 2) whether actual barriers hindered an individual's access to or enjoyment of a particular restaurant on a particular occasion. Plaintiff counters that the commonality requirement of Rule 23(a)(2) does not require that every factual and legal question be common to the class; rather, Rule 23(a)(2) simply requires that there be some common questions.
Defendant has failed to present relevant new evidence to the Court in support of its commonality arguments and therefore these arguments are unpersuasive for the same reasons stated in the Court's class certification order. “Thus the only damages issue not common to the class is the simple question of the number of instances that

individual class members were aggrieved by inadequate accommodations at Defendant's restaurants during the period covered by the lawsuit.” Moeller v. Taco Bell Corp., 220 F.R.D. 604, 610 (N.D.Cal.2004); see also Arnold v. United Artists Theatre, Inc., 158 F.R.D. 439, 449 (N.D.Cal.1994). Moreover, the Fourth Circuit has noted that “Rule 23 contains no suggestion that the necessity for individual damage determinations destroys commonality, typicality, or predominance, or otherwise forecloses class certification. In fact, Rule 23 explicitly envisions class actions with such individualized damage determinations.” Gunnells v. Health Plan Serv., Inc. 348 F.3d 417, 427-28 (4th Cir.2003); see also Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir.1975) (“The amount of damages is invariably an individual question that does not defeat class action treatment.”).
*3 Defendant also argues that commonality is defeated because the Court must engage in a “case-by-case” punitive damages analysis of each class member's claim to determine whether an award of statutory minimum damages violates due process. Defendant argument fails because statutorily prescribed damage awards are distinct from punitive damage awards. See Lowry's Reports, Inc. v. Legg Mason, Inc., 302 F.Supp.2d 455, 460 (D.Md.2004) (stating that punitive damage factors should not apply in analyzing whether statutory penalties violate due process); see also Accounting Outsourcing, LLC v. Verizon Wireless Pers. Communications, L.P., 329 F.Supp.2d 789, 808-09 (M.D.La.2004) (same).
In the alternative, Defendants argue that, even if a punitive damages analysis does not apply, due process requirements are still applied to statutory damages. Defendant states that “[w]hen [a] punitive damages award is combined with strict liability for non-compliance under the ADA, there is the real potential for a due process violation, especially when plaintiffs attempt to aggregate claims for a single violation in a class action.” The Court recognizes that statutory damages may, in an severe case, raise due process concerns. “It is possible that statutory damages could violate due process if ‘the penalty prescribed is so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable.’ “ DirecTV v. Spillman, 2004 WL 1875045, * 4 (W.D.Tex.2004) (quoting St. Louis, Iron Mt. & S. Ry. Co. v. Williams, 251 U.S. 63, 40 S.Ct. 71, 64 L.Ed. 139 (1919)); see also Parker v. Time Warner Entm't Co., 331 F.3d 13 (2d Cir.2003) (“It may be that the aggregation in a class action of large numbers of statutory damages claims potentially distorts the purpose of both statutory damages and class actions. If so, such a distortion could create a potentially enormous aggregate recovery for

plaintiffs, and thus an in terrorem effect on defendants, which may induce unfair settlements.”). However, at this early stage of the proceedings, the Court is unable to determine whether the ratio between actual and statutory damages is disproportionate. Accordingly, Defendant's due process concerns are, at best, premature.FN1
FN1. Even if Defendant could demonstrate that the statutory damages at issue raise due process concerns, it is unclear whether such concerns would affect the class certification analysis. The Second Circuit recently noted that “in a sufficiently serious case the due process clause might be invoked, not to prevent certification, but to nullify that effect and reduce the aggregate damage award.” Parker, 331 F.3d at 22 (emphasis added).
B. Typicality
Rule 23(a)(3) requires that Plaintiffs' damages claims are typical of those of the class. The Ninth Circuit does “not insist that the named plaintiffs' injuries be identical with those of the other class members, only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same injurious course of conduct.” Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir.2001). “In a public accommodations suit ... where disabled persons challenge the legal permissibility of architectural design features, the interests, 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.

v. Davis, 275 F.3d 849, 869 (9th Cir.2001)). Accordingly, an individualized damages determination does not necessarily destroy the typicality requirement. See In re Paxil Litig., 218 F.R.D. 242, 246 (C.D.Cal.2003) (holding that typicality does not require that “[t]he physical, emotional, or monetary damages sustained by Plaintiffs ... be identical or even similar, so long as those differences do not negatively affect the viability of the legal theories under which they proceed.”); see also Gunnells, 348 F.3d at 427-28. The named plaintiffs' damages claims arise from the same legal and remedial theory as the class and thus satisfy the typicality requirement of Rule 23(a)(3).
C. Predominance
Defendant argues that Plaintiffs' class does not satisfy the requirements of Rule 23(b)(2) because Plaintiffs' damages claims predominate over their claims for injunctive relief. Defendant contends that the predominance test is not met because 1) class damages may be large, and 2) adjudicating damages allegedly will be difficult to manage. The Court has previously considered, and rejected, these arguments. “[Plaintiffs] are seeking only the statutory minimum of damages under the Unruh Act and the CDPA. The Court cannot say that Plaintiffs' claims for monetary damages predominate over its claims for injunctive relief.” Moeller, 220 F.R.D. at 613. Defendant has not presented new discovery that would affect the Court's previous analysis.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant's motion for modification of class definition.

*4 Defendants argue that the typicality requirement is not met in this case because Plaintiffs' entitlement to damages will depend on each individual's particular disability, the particular accessibility violation alleged, and whether the technical violation actually constituted a barrier to the particular plaintiff. Plaintiffs contend that Rule 23(a)(2) does not require that the named Plaintiffs' injuries be identical with those of other class members.

IT IS SO ORDERED.

Plaintiffs are correct. The Court previously rejected similar arguments made by the Defendant, and stated that typicality requires “only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same injurious course of conduct.” Moeller, 220 F.R.D. at 611 (quoting Armstrong

 
 FACTUAL BACKGROUND

United States District Court, N.D. California.
Francie E. MOELLER, et al., Plaintiffs, v.
TACO BELL CORP., Defendant. No. C 02-5849 MJJ.
Aug. 10, 2005.
Bob Evans, Equal Access, San Marcos, CA, pro se.

In their Joint Supplemental Case Management Statement dated August 23, 2004, the parties agreed to a procedure to resolve the equitable issues in this case. The procedure called for counsel to meet and confer about more than 630 accessibility elements at each of Defendant's more than 200 company-owned restaurants in California. To assist in the meet and confer process, the parties have worked together to identify and reach agreement on a non-exclusive list of legal principles over which the parties disagree.

Timothy P. Fox, Amy F. Robertson, Fox & Robertson, P.C., Denver, CO, Antonio M. Lawson, Lawson Law Offices, Oakland, CA, Brad Seligman, Jocelyn D. Larkin, The Impact Fund, Mari Mayeda, Berkeley, CA, for Plaintiffs.
Gregory A. Eurich, Jimmy Goh, Holland & Hart LLP, Denver, CO, Jeffrey H. Dasteel, Titania Jean Mooney, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, CA, Jamerson C. Allen, Jackson Lewis LLP, San Francisco, CA, Thomas P. Howard, Louisville, CO, for Defendants.

The parties have briefed three issues for the Court, and each of these issues concern whether there can be liability or injunctive relief for specific accessibility elements that vary from the Department of Justice Standards for Accessible Design (the “DOJ” standards) or Title 24 of the California Code of Regulations, but nonetheless provide equal or greater access to disabled individuals. Defendant asserts that deviations from the DOJ and California Standards that exceed applicable construction tolerances can be excusable as either “de minimis” or “equivalent facilitation.” Plaintiffs urge the Court to reject the “de minimis” exception in its entirety, and to limit the “equivalent facilitation” exception to only “alternative designs and technologies.”

ORDER
JENKINS, J.
INTRODUCTION
*1 Plaintiffs seek a ruling that Defendant Taco Bell Corporation's violations of dimensional standards required under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., may only be justified as “conventional building industry tolerances for field conditions,” and may not be excused as “de minimis” or analyzed as “equivalent facilitation.” The parties also dispute whether the Plaintiff class has standing to challenge violations of accessibility standards governing 1) the continuous delivery of toilet paper and 2) the usability of hardware with one hand without tight grasping, pinching, or twisting.

In addition to the legal principles on which the parties seek the Court's guidance, the parties also seek a ruling on a standing issue-whether the certified class has standing to seek equitable relief regarding two accessibility elements currently being surveyed by the Special Master: 1) the continuous delivery of toilet paper; and 2) the usability of hardware with one hand without tight grasping, pinching, or twisting. Plaintiffs contend that because many class members have disabilities that affect their hands and arms, these two accessibility standards are appropriate for adjudication on a class-wide basis. Defendant asserts that because the Plaintiff class is defined as individuals with disabilities who use wheelchairs or scooters for mobility, the class only has standing to pursue equitable relief for those accessibility standards that specifically target individuals who use wheelchairs and scooters for mobility.

ANALYSIS
A. Equivalent Facilitation
Defendant argues that the “equivalent facilitation” provision allows facilities to bypass the technical requirements laid out in the ADA when alternative designs and technologies will provide equivalent or greater access to and usability of the facility. According to Defendant, there are only two requirements for an equivalent facilitation: 1) it is different from DOJ Standards; and 2) it provides equal or greater access to the subject facilities. Plaintiffs assert that an “equivalent facilitation” must be an alternative design and technology, and covered elements that simply deviate from the standards do not qualify.
*2 Section 2.2 of the DOJ standards reads as follows:

As an initial matter, the Court disagrees with Defendant's contention that an equivalent facilitation need only be “different from” the DOJ standards. This interpretation is too broad and inconsistent with the plain language of Section 2.2. The fact that the Access Board replaced the word “methods” with “design and technologies” is telling. Defendant's interpretation of Section 2.2 would essentially read this phrase out of the equivalent facilitation exception.
Furthermore, the Court agrees with Plaintiffs that Defendant should not be permitted to use anthropometric or other data to argue that a measurement that merely falls short of the DOJ standards constitutes “equivalent facilitation.” Defendant cites no cases in which a noncompliant element was excused as “equivalent facilitation” based on one party's evidence of how many people it accommodated.

Equivalent Facilitation. Departures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.
When initially proposed, section 2.2 read, “Departures from particular technical and scoping requirements of this guideline by the use of other methods are permitted where the alternative methods used will provide substantially equivalent or greater access to and usability of the facility.” 56 Fed.Reg. at 2327 (emphasis added). Following a notice and comment period, the phrase “design and technologies” was substituted for the word “methods.” The Access Board explained that “[t]he purpose of the provision is to allow for flexibility to design for unique and special circumstances and to facilitate the application of new technologies.” 56 Fed.Reg. at 35,413.
Here, the central dispute between the parties revolves around the language “alternative designs or technologies.” Plaintiffs assert that Defendant is attempting to substitute the phrase “alternative designs and technologies” for “different from.” Meanwhile, Defendant argues that Plaintiffs' interpretation of the equivalent facilitation exception would deem it only applicable to “new technology.”

A simple example illustrates the inherent problem with Defendant's position. A survey conducted by the Special Master in this case revealed that the height of the side and rear grab bars in the women's restroom of Restaurant No. 2423 was 37 inches, whereas the maximum allowed height is 33 inches. Under Defendant's interpretation of “equivalent facilitation,” Defendant could assert, based on an expert's testimony, that a grab bar height of 37 inches actually allows greater accessibility to wheelchair users, and therefore is a “equivalent facilitation.” Such an argument is unfounded. In this example, the four-inch deviation from the DOJ standard was not the product of an “alternative design or technology,” but rather a grab bar simply being mounted too high.
*3 Furthermore, the Court finds that the “equivalent facilitation” exception was not intended to apply only to “new technology.” The ADAAG itself provides various examples of equivalent facilitation which undermine such an approach. For example, while hotels are required to install a text telephone next to a pay phone, the ADAAG permits hotels to keep portable text telephones at the desk, if they are available 24 hours per day, and other conditions are met. This cannot be considered “new technology.” Moreover, the “new technology” argument finds no support in the case law. See Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 727 (D.Or.1997) (rejecting the “new technology” argument, and finding that the use of folding chairs to provide companion seats at a sports arena was an acceptable equivalent facilitation).

Therefore, the Court finds that there are only two requirements for an equivalent facilitation: 1) it is an alternative design or technology; and 2) it provides equal or greater access to subject facilities.FN1 It appears that the purpose of the exception is to give architects the flexibility to design facilities that may not strictly comply with the Accessibility Standards but nonetheless provide equivalent facilitation. Moreover, while the exception provides flexibility, it does not prevent strict compliance, as many of the Accessibility Standards are not susceptible to equivalent facilitation. See id. at 727-28.
FN1. Indeed, when “[p]roperly read, the ‘Equivalent Facilitation’ provision does not allow facilities to deny access under certain circumstances, but instead allows facilities to bypass the technical requirements laid out in the [Accessibility] Standards when alternative designs will provide ‘equivalent or greater access to and usability of the facility.’ ” Caruso v. Blockbuster-Sony Music Entm't Ctr., 193 F.3d 730, 739 (3d. Cir.1999).
B. De Minimis Exception
Defendant has indicated that it will seek to excuse deviations from the DOJ and California Standards as “de minimis.” Plaintiffs argue that the Ninth Circuit has rejected such an exception and urges the Court to analyze any deviation from the required standards under the provision for tolerances. Defendants respond that the bright line rule set forth by Plaintiffs is impractical and improvident.
Federal courts do not “sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before [them].” Princeton Univ. v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982). To proceed in the absence of a case or controversy would involve the Court in rendering a forbidden advisory opinion. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Here, the application of the “deminimis” defense will vary with the circumstances of the individual accessibility elements in this case. However, Defendant has not provided the Court with a factual record detailing the specific violations of the ADA it believes are “de minimis.” Therefore, the Court refrains from ruling on this issue until the factual record in this case is more fully developed.

C. Class-Wide Standing for Continuous Delivery of Toilet Paper or Hardware
Defendant argues that the Plaintiff class does not have standing to seek injunctive relief for inaccessible hardware and inaccessible toilet paper rollers.FN2 Defendant asserts that because the definition of the class is limited to individuals who use wheelchairs or scooters for mobility, the class should only have standing to pursue injunctive relief with respect to two kinds of accessibility elements: 1) elements designed to accommodate wheelchairs or scooters; and 2) ancillary elements designed to provide full accommodation for persons who use wheelchairs or scooters for mobility. Plaintiffs respond that because at least one-third of the class will suffer injury in fact if these elements are out of compliance, the class has standing to challenge such violations.
FN2. Both the DOJ Standards and the California Standards require certain types of hardware to be “operable with one hand” and not to “require tight grasping, pinching or twisting of the wrist.” See, e.g., DOJ Stds. § 4.27.4. Both sets of standards have requirements similar to this that apply to door hardware, faucets, flush controls, and general controls and operating mechanisms. Both the DOJ Standards and the California Standards prohibit toilet paper dispensers “that control delivery or that do not permit continuous paper flow. DOJ Stds. § 4.16.6; Cal. Stds. 11115B.9.3.
*4 It is Plaintiffs' burden to establish standing to assert their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An individual with a disability has “standing to seek relief for any ADA violations ... affecting his specific disability,” and does not have standing to pursue claims that do not affect his disability. Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir.2000). In evaluating standing in the class context, the Court should “consider those injuries in the context of the harm asserted by the class as a whole[.]” Armstrong v. Davis, 275 F.3d 849, 861, (9th Cir.2001).
In Parr v. L & L Drive-Inn Restaurant, the plaintiff suffered from the disability of non-mobility, and sought relief from barriers that were not related to non-mobility, such as braille sign violations. 96 F.Supp.2d 1065 (D.Haw.2000). The Parr court concluded that the plaintiff could not prove the requisite “injury in fact.” Id. at 1082. Accordingly, the court held “that Plaintiff's claims not

specifically related to non-mobility must be denied due to lack of standing.” Id. at 1083. Other courts that have considered the issue are in agreement. See Delil v. El Torito Rest., Inc., 1997 WL 714866, at *5 (N.D.Cal. Jun.24, 1997) (holding that a disabled individual cannot “vindicate the rights of disabled persons generally”); Vandermolen v. City of Roosevelt, 1997 WL 853505, at *2 (W.D.Mich. Oct.28, 1997) (finding that the standing requirement “exclude[s] claims for relief brought for purely academic reasons”); Steger, 228 F.3d at 893-94 (finding that standing exists for the blind only for those ADA violations that necessarily affect a vision impaired person).
Here, there is no dispute that the “class as a whole” consists of individuals who use wheelchairs and scooters who have encountered disability discrimination at corporate Taco Bell restaurants in California. However, according to Plaintiffs, 38% of the class have difficulty using their hands to grasp, handle or hold objects, and thus will incur “injury in fact” when they encounter inaccessible toilet paper rollers and hardware. The Court cannot agree. Plaintiffs have not offered any case authority to support their novel proposition that an injury to only 38% of the class is sufficient to qualify as an “injury in fact” to the “class as a whole.” Simply stated, the Plaintiff class has not been defined as to encompass persons with limited use of their hands and arms without regard to mobility. Therefore, the Court agrees with Defendant that the continuous delivery requirement is not directly related to mobility, but rather to individuals who have limited use of their hands or arms. Likewise, the hardware standards (doors, lock, flush controls) do not depend on mobility impairments. Accordingly, the Court finds that Plaintiffs have not established standing to challenge violations of the accessibility standards governing these elements.
CONCLUSION
*5 For the reasons stated above, the Court finds that there are only two requirements for an equivalent facilitation: 1) it is an alternative design or technology; and 2) it provides equal or greater access to subject facilities. The Court refuses to rule on the application of the “de minimis” exception until the factual record in this case is more fully developed. Finally, the Court finds that Plaintiffs do not have standing to challenge violations of the accessibility standards governing inaccessible hardware and inaccessible toilet paper rollers.
IT IS SO ORDERED.

 
 United States District Court, N.D. California.
MOELLER et al, Plaintiff, v.
TACO BELL CORP., Defendant. No. C02-05849 MJJ.
Aug. 8, 2007.
Timothy P. Fox, Amy F. Robertson, Fox & Robertson, P.C., Ari Reuben Krichiver, Denver, CO, Antonio Michael Lawson, Lawson Law Offices, Oakland, CA, Brad Seligman, Jocelyn Dion Larkin, The Impact Fund, Mari Mayeda, Berkeley, CA, for Plaintiff.
Gregory A. Eurich, Jimmy Goh, Holland & Hart LLP, Denver, CO, Gregory F. Hurley, Richard Hidehito Hikida, Esq., Greenberg Traurig, LLP, Costa Mesa, CA, Jamerson C. Allen, Jackson Lewis LLP, San Francisco, CA, Thomas P. Howard, Louisville, CO, Titania Jean Mooney, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for Defendant.

This class action arises from Defendant's alleged violations of federal and state disability civil rights laws. Plaintiffs claim that Defendant's California restaurants maintain architectural elements that discriminate against customers who use wheelchairs or scooters by preventing equal enjoyment and access to Defendant's services. At issue are three architectural elements in Defendant's California restaurants: (1) the dimensions of the queue lines which are the barriers that are put in place to cause customers to form a single line as they approach the counter, order, and pick up their food; (2) the force necessary to open interior and exterior doors; and (3) the number of, and knee clearance at, accessible seating positions at indoor dining areas.
Plaintiffs are a group of physically disabled California residents who use either electric scooters or wheelchairs as their primary means of mobility. Defendant is a corporation incorporated under the laws of California, with its principal place of business in California. (First Amended Complaint (“FAC”) ¶ 19; Ans. ¶ 19.) Defendant owns, operates, leases, and/or leases restaurants in California to Taco Bell. (Id.) Such restaurants include combination restaurants in which Taco Bell products and products of other restaurants are sold. (Id.)

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
MARTIN J. JENKINS, United States District Judge.
INTRODUCTION

In their operative Complaint, Plaintiffs seek an injunction ordering Defendant to adopt policies to ensure access for customers who use wheelchairs and scooters, and to bring all of its restaurants into compliance with the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), the Unruh Civil Rights Act, California Civil Code § 51 et seq. (“the Unruh Act”), and the California Disabled Persons Act, California Civil Code § 54 et seq. (the “CDPA”). (FAC ¶¶ 50-73.) Plaintiffs also seek the minimum statutory damages per offense under the Unruh Act and the CDPA.

*1 Before the Court is Plaintiffs Francie Moeller, Edward Muegge, Katherine Corbett, and Craig Thomas Yates' (collectively, “Plaintiffs”) Motion for Partial Summary Judgment.FN1 Defendant Taco Bell Corp. (“Defendant” or “Taco Bell”) opposes the motion. For the following reasons, the Court DENIES, in part, and GRANTS, in part, Plaintiffs' Motion for Partial Summary Judgment.
FN1. Docket No. 255.
FACTUAL BACKGROUND

On October 5, 2004, this Court granted the parties' stipulation to appoint a Special Master.FN2 The parties agreement called for the Special Master to conduct site visits of Defendant-owned Taco Bell restaurants in California. The purpose of the site visits, among others, was for the Special Master to use his expertise under the Department of Justice Standards for Accessible Design (“DOJ Standards”), and Title 24 of the 2002 California Building Code (“Title 24”), to determine the dimensions, values, and measurements of the customer accessible elements at the restaurants under the DOJ Standards and/or Title 24 at the time of the site visit and to make recommendations as he sees fit for bringing into compliance those elements whose dimensions, values, or

measurements do not comply with DOJ Standards and/or injunctive and monetary relief. Title 24.

FN2. Docket No. 101.

LEGAL STANDARD

*2 This Court's Order Appointing Special Master provided that except as to dimensions, values, and measurements that were not challenged or that were resolved during the monthly meet and confer process above, any party may file objections or move to adopt or modify the Special Master's Report, or any portion thereof, not later than twenty days after the Report is filed with the Court. By Order dated September 19, 2006, this Court set the deadline for objections at January 12, 2007.
On January 12, 2007, Plaintiffs filed a Motion to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections.FN3
FN3. Docket No. 243.
Also on January 12, 2007, Defendant filed its Objections to the Special Master's Report.FN4 Defendant did not object to or otherwise challenge the Special Master's queue line measurements or the number of seating positions in any restaurant. (Def.'s Objections to Special Master's Interim Survey Report.) Defendant objected to the Special Master's measurement of knee clearance at a single restaurant. (Id. at 103.) Plaintiffs do not currently move for summary judgment as to that measurement. Defendant made several objections concerning door force. (Id. at 77-80, 89, 117-19, 289-92.) The majority of Defendant's objections raised legal issues, however Defendant made factual objections to the door force on the women's restrooms at three restaurants. Plaintiffs do not currently move for summary judgment as to the door force on the women's restrooms for those three restaurants.
FN4. Docket No. 247.
Plaintiffs currently seek partial summary judgment as to three specific architectural barriers in Defendant's California restaurants. Plaintiffs seek summary judgment as to the queue lines in 77 restaurants, the door force in 171 restaurants, and the indoor accessible seating in 54 restaurants. Plaintiffs seek an order finding that the architectural elements at issue are in violation of the ADA, the CDPA, and Unruh, thereby establishing liability for

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48. An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute might affect the case's outcome. Id. at 248. Factual disputes are genuine if they “properly can be resolved in favor of either party.” Id. at 250. Thus, a genuine issue for trial exists if the non-movant presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in its favor. Id. However, “[i]f the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted).
*3 The standards and procedures for partial summary judgment are the same as for summary judgment. Hon. William W. Schwarzer, Federal Civil Procedure Before Trial, § 14:33 (citations omitted). Partial summary judgment is appropriate upon a showing that there is no genuine issue of material fact as to particular claims or defenses, where the court may grant summary judgment in the party's favor “upon all or any part thereof.” Fed. R. Civ. Proc. 56(a), (b); See also Hon. William W. Schwarzer, supra at § 14:33 (citing Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir.1999); Wang Laboratories, Inc. v. Mitsubishi Electronics, America, Inc., 860 F.Supp. 1448, 1450 (C.D.Cal.1993)); See also, Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24, 926

(9th Cir.2001) (affirming in part district court's decision granting partial summary judgment to plaintiffs based on an application of ADA accessibility standards to stipulated facts); United States v. AMC Entm't, Inc., 245 F.Supp.2d 1094, 1101 (C.D.Cal.2003) (granting partial summary judgment to plaintiffs based on an application of ADA accessibility standards to undisputed dimensional information in plaintiffs' expert's report); Sapp v. MHI P'ship, Ltd., 199 F.Supp.2d 578, 583 (N.D.Tex.2002) (granting partial summary judgment to plaintiffs based on an application of ADA accessibility standards to undisputed facts).
ANALYSIS
I. Summary of the Parties' Arguments

relief only with respect to architectural elements that are either (1) outside of tolerances to which the parties have stipulated, or (2) so far out of compliance as to be beyond any reasonable tolerance based on field conditions. (Pl.'s Mot. at 9:1-9) (citing Joint Status Conference Statement (Docket No. 157) ¶ 18; see also Index. Living Res. v. Oregon Arena Corp., 982 F.Supp. 698, 782 (D.Or.1997) (Holding that the question of what constitutes “conventional building industry tolerances” is “an affirmative defense upon which the defendant bears the burden of proof.”); AMC Entm't, Inc., 245 F.Supp.2d at 1100 (Granting summary judgment to the plaintiff and rejecting the defendant's argument that small deviations should be excused as tolerances on the grounds that the defendant had “provided no evidence regarding any applicable conventional building industry tolerances ...”)).

A short summary of the parties' arguments is helpful in framing the issues before the Court.
A. Plaintiffs' Arguments
Plaintiffs purport that their motion for partial summary judgment as to the three architectural barriers at issue is grounded upon undisputed facts. In support, Plaintiffs rely on: (1) the Special Master's measurements FN5 of the architectural elements at issue (with the exception of the excluded measurements, as noted above); (2) the construction tolerances FN6 applied by Plaintiffs as stipulated by the parties; and (3) the construction dates FN7 of the restaurants at issue.
FN5. Exhibits 1-8 of the Declaration of Timothy P. Fox (“Fox Decl.”) contain the Special Master's measurements and statistics regarding the architectural elements for each of Defendant's restaurants at issue in the pending motion.

For example, Plaintiffs explain they have applied a seven pound tolerance for interior door forces, a tolerance to which the parties have stipulated. (See “Chart of Acceptable Measurements for the DOJ Standards for New Construction and Alterations” (“Stipulated Tolerances”) at 1, attached to Stipulation Concerning Acceptable Measurements (Fox Decl. ¶ 14, Ex. 9).) Plaintiffs have applied a tolerance of 3.9 inches to queue line dimensions, based on the testimony of Carlos Azalde, Defendant's Rule 30(b)(6) designee on queue line issues in both the Colorado litigation and the case at bar, who stated that a four inch deviation from the design of queue lines would be beyond construction tolerances. (Colorado Cross Disability Coalition v. Taco Bell Corp., Civil Action No. 97-B-2135 (D.Colo.) (“CCDC v. Taco Bell” ), Dep. of Carlos Azalde at 33-34 (Ex. 10 to Fox Decl.) (“Azalde Colo. Dep.”).)

FN6. Plaintiffs explain that the DOJ Standards and-beginning in 1999-Title 24 provide that “[a]ll dimensions are subject to conventional building industry tolerances for field conditions.” DOJ Stds. § 3.2; Title 24-1999 § 1101B.4. Although Defendant has stipulated that the question of what constitutes a tolerance under this provision is an affirmative defense on which Defendant bears the burden of proof, for purposes of this Motion, Plaintiffs are seeking

FN7. The parties have stipulated to the date on which each restaurant at issue was constructed. (Pls.' Submission of Agreements Reached by the Parties.) (Docket No. 241.)
Plaintiffs explain that their motion is limited to architectural elements that violate applicable new construction standards, which include restaurants that were built: (1) after January 26, 1993, and were thus subject to the “new construction” regulations under the ADA; and/or

(2) after December 31, 1981, and were thus subject to California access regulations in affect at the time of construction.
B. Defendant's Opposition
Defendant responds by emphasizing that new construction standards under the ADA apply only to those commercial facilities constructed after January 26, 1993. 42 U.S.C. § 12183(a)(1). Relying on the ADA's enactment, Defendant accords significance to Congress's exception for existing commercial facilities (those constructed before January 26, 1993)-requiring those existing facilities to be subject to new construction standards only if such work was “readily achievable.” Defendant accuses Plaintiffs of improperly attempting to apply non-ADA legal standards (e.g. California state law standards) to Defendant's existing restaurants (those constructed before January 26, 1993). Defendant requests the Court to exclusively apply the ADA's legal standards to all of the restaurants at issue. Defendant alternatively argues that if the Court elects to apply non-ADA standards and regulations to the restaurants at issue, then Defendant still prevails as to Plaintiffs' ADA claims relating to those restaurants constructed prior to January 26, 1993 because Plaintiffs have failed to demonstrate that barrier removal or alteration, in those restaurants, is “readily achievable.”
*4 As to those restaurants constructed after January 26, 1993, Defendant argues that such issues have been rendered moot due to Defendant's recent remediation efforts and implementation of appropriate policies designed to provide “full and equal” access to its restaurants.

restaurants that were built after January 26, 1993. Therefore, Plaintiffs submit that Defendant's analysis of the ADA's “readily achievable” standard for existing facilities is thus irrelevant and need not be resolved in this motion. Plaintiffs' reply explains that they seek summary judgment on their ADA claims based only on violations of the DOJ Standards, and not on non-ADA standards as Defendant contends. Plaintiffs also explain that they rely on non-ADA standards-such as Title 24-only to establish violations of state law under the CDPA and Unruh in the current motion.
II. ADA, CDPA, and Unruh
The parties disagree as to what legal standards apply to the architectural elements at issue. Thus, the Court must first address the relevant statutes-the ADA, the CDPA, and Unruh-and the elements of proof necessary to establish violations thereof.
A. ADA
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); PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (holding that the ADA provides a “broad mandate” to eliminate discrimination against people with disabilities). The statute recognizes that “the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8).

Lastly, Defendant argues that even if the Court applies non-ADA accessibility standards, the discretionary issuance of certificates of occupancy by the local building official charged with enforcing the accessibility requirements of the California Building Code constitutes prima facie evidence that Defendant's restaurants were in compliance at the time such restaurants were first open for business, thereby creating a genuine issue of material fact precluding summary judgment.
C. Plaintiffs' Reply
In their reply, Plaintiffs clarify that they seek summary judgment under the ADA only with respect to those

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation FN8, both with respect to the accessibility of their physical facilities and with respect to their policies and practices. 42 U.S.C. § 12182(a); Moeller v. Taco Bell, 220 F.R.D. 604, 606 (N.D.Cal.2004); Bird v. Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir.2002). Liability is imposed upon “any person who ... operates a place of public accommodation” that discriminates against an individual on the basis of disability. Id. Aside from attorney's fees, the only remedy available to a private litigant under Title III of the ADA is injunctive relief. 42 U.S.C. § 12188(a)(1); see also Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002).

FN8. The parties do not dispute that Taco Bell restaurants are “public accommodations” within the meaning of the ADA and the relevant California disability laws. Moeller, 220 F.R.D. at 606.
*5 In enacting the ADA, Congress adopted two systems for regulating building accessibility: (1) one to apply to newly constructed or altered facilities; and (2) a second to apply to facilities designed and constructed for occupancy before January 26, 1993. See 42 U .S.C. § 12183(a)(1) and § 12182(b)(2)(A)(iv). Congress also directed the Department of Justice (“DOJ”) to issue regulations implementing Title III. 42 U.S.C. § 12186(b). The DOJ regulations are at Part 36 of 28 C.F.R.
Newly-constructed facilities-those constructed after January 26, 2003-and altered facilities, must comply with the ADA Accessibility Guidelines (“ADAAG”), which were incorporated into the DOJ regulations as Appendix A of 28 C.F.R. Part 36. See 28 C.F.R. § 35.151(c). A failure to comply with the DOJ Standards in buildings constructed after January 23, 1996 is a violation of the ADA. 28 C.F.R. § 36.406(a). When a facility is deemed “altered,” the altered portion of the facility must be made accessible “to the maximum extent feasible.” The infeasibility exception “applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards ....“ 28 C.F.R § 36.402(c).
Existing facilities-those constructed before January 26, 1993, that are not deemed altered-are subject to a less stringent standard. Existing facilities must remove architectural barriers to access only where such removal is “readily achievable.” See 42 U.S.C. § 12182(b)(2)(A)(iv). The term “readily achievable” means “easily accomplished and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9); see also 28 C.F.R § 36.304(a) (preexisting facilities must remove barriers to accessibility only “where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense”).FN9 The applicable regulations mandate that a public accommodation shall remove architectural barriers where such removal is readily achievable. See 28 C.F.R. §§ 36.304(a), (b). The regulations provide examples of steps to remove barriers, such as repositioning shelves, rearranging tables, chairs, vending machines, display racks, and other furniture, and widening doors. See id.

FN9. In determining whether an action is readily achievable, the ADA provides a number of factors to be considered. 42 U.S.C. § 12181(9)(A)-(D). Where an entity can demonstrate that the removal of a barrier is not readily achievable, discrimination also includes the failure to make such facilities available through alternative methods if such methods are readily achievable. 42 U.S.C. § 12182(b) (2)(A)(v).
Although existing facilities are not required to comply with the ADAAG (unless they have been altered), the ADAAG nevertheless provides guidance for determining whether an existing facility contains architectural barriers. Mannick v. Kaiser Foundation Health Plan, Inc., 2006 WL 1626909 at *5 (N.D.Cal.2006) (citing Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1086 (D.Haw.2000)). However, deviations from the ADAAG are not necessarily determinative in establishing barriers to access. Id. (citing 28 C.F.R. Part 36, App. A, ADAAG 2.2).
The ADA does not foreclose reliance on state law remedies that provide greater protection. 42 U.S.C. § 12201(b). In describing the ADA's relationship with other laws, the ADA provides,
*6 Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter....
Id.
B. The Unruh Act and CDPA
Both the CDPA and the Unruh Act 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) (Unruh Act), 54.1(a)(1) (CDPA). Moeller, 220 F.R.D. at 606. A prevailing plaintiff is entitled to, among other relief, 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).

then turn to the architectural barriers at issue in this action: (1) queue lines and auxiliary access lanes; (2) door force; and (3) seating accessibility.

All buildings constructed FN10 or altered FN11 after July 1, 1970, must comply with standards governing the physical accessibility of public accommodations. D'Lil v. Stardust Vacation Club, 2001 WL 1825832, 2001 U.S. Dist. LEXIS 23309 at *21-22 (E.D.Cal.2001). From December 31, 1981 until the present, the standards have been set forth in Title 24 of the California regulatory code (the “California Standards”). People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 134, 197 Cal.Rptr. 484 (1983). 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. Title 24-1999 § 1101B.3.
FN10. Cal. Health & Safety Code § 19956.
FN11. Cal. Health & Safety Code § 19959.
A violation of a California Standard constitutes a violation of both the CDPA and the Unruh Act. See, e.g., Arnold v. United Artists Theatre Circuit, Inc., 866 F.Supp. 433, 439 (N.D.Cal.1994). Similarly, a violation of the ADA also constitutes a violation of both statutes. Cal. Civ.Code §§ 51(f) & 54(c).FN12
FN12. The Unruh Act, as amended, § 51 provides that “[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 ... shall also constitute a violation of this section.” Cal. Civ.Code § 51(f). Additionally, as of 1997, the CDPA incorporates by reference an individual's rights under the ADA. Cal. Civ.Code §§ 54(c), 54.1. Thus, a violation of the ADA also constitutes a violation of the CDPA. Mannick, 2006 WL 1626909 at *6 (citing Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1130 (E.D.Cal.2002)).

As to queue lines, Defendant insists that Plaintiffs' claims are moot because Defendant has removed queue lines at forty six restaurants and modified them at ten additional restaurants. (Ford Decl. at ¶¶ 6-70; Kane Decl. ¶¶ 6-39.) Defendant also states that it intends to modify or remove non-compliant queue lines by January 1, 2008. (De Bella Decl. at ¶¶ 6-7.) As to door force, Defendant contends that Plaintiffs' claims are moot because Defendant has replaced the door closers at ninety five of its restaurants (id.), and has expressed its intent to replace additional door closers at the remaining stores in the near future. (De Bella Decl. at ¶¶ 4-5.) As to the accessible seating, Defendant maintains that Plaintiffs' claims are moot because Defendant has added additional indoor accessible seating at thirty one restaurants and modified the existing accessible seating at forty additional restaurants. (Ford Decl. at ¶¶ 6-70; Kane Dec. at ¶¶ 6-39.) As to Defendant's proposed modifications, Defendant argues that unless Plaintiff can come forward with admissible evidence creating a reasonable expectation that Defendant's expressed intent is disingenuous, then Plaintiffs' ADA claims are moot.
*7 Plaintiffs dispute that their ADA claims are moot. Plaintiffs challenge Defendant's expressed intent to comply with the ADA insisting that injunctive relief remains necessary to ensure future compliance. Plaintiffs also argue that Defendant cannot satisfy the heavy burden to establish that the challenged conduct cannot reasonably be expected to recur. Lastly, Plaintiffs explain that even if Defendant was able to meet its heavy burden of showing that the architectural elements have been remedied, and that the challenged conduct will not recur, the legal questions presented by the current motion are not moot because Plaintiffs are seeking monetary relief for class members under California state law predicated on Defendant's violations of the DOJ Standards and Title 24. Thus, the question of whether the architectural elements at issue were in violation of the ADA and/or state law before they allegedly were remedied must be addressed to determine Defendant's liability for damages.

III. Mootness
Because the issue of mootness goes to this Court's subject matter jurisdiction, the Court will consider it first, and

Mootness is a jurisdictional defect that can be raised at any time by the parties or the court sua sponte. Grove v. De La Cruz, 407 F.Supp.2d 1126, 1130 (C.D.Cal.2005) (citing Barilla v. Ervin, 886 F.2d 1514, 1519 (9th Cir.1989)). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “[T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can by any effective relief.” West v. Secretary of Dept. of Transp., 206 F.3d 920, 925 (9th Cir.2000). “Mere voluntary cessation of allegedly illegal conduct does not moot a case; it if did, the courts would be compelled to leave [t]he defendant ... free to return to his old ways.” United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); see also, Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000). Voluntary cessation of illegal conduct does not render a challenge to that conduct moot unless “(1) there is no reasonable expectation that the wrong will be repeated, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Barnes v. Healy, 980 F.2d 572, 580 (9th Cir.1992); see also Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985) (quoting Davis, 440 U.S. at 631). “The burden of demonstrating mootness ‘is a heavy one.’ “ Davis, 440 U.S. at 631 (quoting W.T. Grant, 345 U.S. at 632-33). A number of ADA cases have held that promised improvements and policy changes do not moot a claim for injunctive relief under that statute. See, e.g., Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078, 1080 (N.D.Cal.1997); Clavo v. Zarrabian, 2004 WL 3709049 at *4 (C.D.Cal. May 17, 2004); Watanabe v. Home Depot USA, Inc., 2003 WL 24272650, at *4 n. 2 (C.D.Cal. July 14, 2003).
*8 Here, a review of the undisputed factual record demonstrates that a number of Defendant's restaurants continue to have architectural elements that remain non-ADA compliant. Although Defendant claims that it intends to modify or remove non-compliant queue lines by January 1, 2008, and to replace additional door closers at the remaining stores in the near future, (De Bella Decl. at ¶¶ 4-7), such representations do not render Plaintiffs' ADA claims moot. See, e.g., Cupolo, 5 F.Supp.2d at 1080. As Defendant has admitted, many of the elements in its restaurants change frequently due to “regular maintenance, remodels, repairs, and normal wear and tear.” (Def.'s Mot. for Modification of Class Definition at 3:13-18 .) Defendant has explained that, because of this frequent change, the fact that an element is in compliance at one time “is not dispositive of whether the same element is in compliance” at another time. (Id.) Thus, evidence of the current compliant status of certain elements is not

dispositive of whether the elements will continue to be compliant in the future.
For these reasons, the Court finds that Defendant cannot satisfy its heavy burden to show that the past and existing ADA violations will not recur. FN13 Even if certain doors and seating were in compliance in the summer of 2006, as Defendant contends, this Court may order effective relief as to those elements in the form of an injunction requiring Defendant to (1) remedy the remainder of these elements that are out of compliance; (2) maintain those elements in a compliant state; and (3) ensure that those elements comply in any new or acquired restaurants.
FN13. Defendant cites a number of cases involving physical changes in which courts have held ADA claims to be moot. All are distinguishable because in none of the cases was there evidence that the elements in question remained subject to “frequent change.” Furthermore, in three of the cases, the plaintiffs had conceded that the claims were moot. Brother v. CPL Invts., Inc., 317 F.Supp.2d 1358, 1372 (S.D.Fla.2004); Pickern v. Best Western Timber Cover Lodge Marina Resort, 194 F.Supp.2d 1128, 1130 (E.D.Cal.2002); Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1087 (D.Haw.2000). Next, the Troiano case involved a government defendant, which the Eleventh Circuit found to be dispositive. Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir.2004) (“when the defendant is not a private citizen but a government actor, there is a rebuttable presumption that the objectionable behavior will not recur.”). Finally, in the Hickman case-which also involved a government defendant-the primary reason the case was held to be moot was that all of the prisoner plaintiffs has been paroled. Hickman v. Missouri, 144 F.3d 1141, 1142 (8th Cir.1998).
Having resolved the issue of mootness, the Court now turns to the three types of architectural barriers at issue in this action: (1) queue lines and auxiliary access lanes; (2) door force; and (3) seating accessibility.
IV. Queue Lines and Auxiliary Access Lanes
The first architectural barriers at issue are Defendant's queue lines and auxiliary access lanes. Plaintiffs insist that

the queue lines in Defendant's restaurants listed in Exhibits 1 FN14 and 2 FN15 violate applicable new construction standards. As to the queue lines listed in Exhibit 1, Plaintiffs claim that the queue lines are in violation of the applicable Title 24 regulations governing the width of cafeteria lines and circulation aisles. As a result of those Title 24 violations, Plaintiffs claim that the queue lines in Exhibit 1 violate the CDPA as well. As to the queue lines listed in Exhibit 2, Plaintiffs claim that the queue lines are in violation of the ADA, the CDPA, and Unruh. Plaintiffs more specifically contend that Defendant's segregated auxiliary access lanes for persons who use wheelchairs or scooters, do not excuse Defendant's queue line violations, and that the auxiliary access is also in violation of both California law and the ADA. Defendant responds that its queue lines do not violate the ADA or state law because the available auxiliary access lanes provide persons who use wheelchairs or scooters with equivalent facilitation. The Court now turns to Defendant's queue lines and auxiliary access lanes in order to determine if they violate either the ADA or state law.
FN14. The queue line measurements in Exhibit 1 are taken from buildings built between December 31, 1981 and January 26, 1993. (Fox Decl. ¶ 2, Ex 1.)
FN15. The queue line measurement in Exhibit 2 are taken from buildings built after January 26, 1993. (Fox Decl. ¶ 3, Ex 2.)
*9 The queue lines and auxiliary access in Defendant's restaurants are generally arranged as depicted below:

(Pl.'s Mot. at 10:9-21.) FN16
FN16. For purposes of the current motion, neither party has identified whether the restaurants referenced in Exhibits 1 and 2 each contain auxiliary access lanes in addition to the queue lines. However, because Plaintiffs' brief appears to concede for purposes of this motion that each of the restaurants at issue contain an auxiliary access lane, the Court will assume the same here.
A. Queue Lines
1. Exhibit 1-Unruh and CDPA
The queue lines in Exhibit 1 are measurements taken from stores built between December 31, 1981 and January 26, 1993. (Fox Decl. ¶ 2, Ex 1.) For stores built in that time frame, there are two categories of Title 24 regulations that require queue lines to be at least 36 inches wide. The first category of Title 24 regulations pertains to “cafeteria line aisles” and requires a width of at least 36 inches. See Title 24-1981 § 2-611(c)(4); Title 24-1984 § 2-611(d)(4); Title 24-1987 § 2-611(d)(4); Title 24-1989 § 611(d)(4).FN17 The second category of Title 24 regulations pertains to “circulation aisles and pedestrian ways” and also requires a width of at least 36 inches. See Title 24-1981 § 2-402(d); Title 24-1984 § 2-402(d); Title 24-1987 §

2-402; Title 24-1989 § 402(h) (an “aisle” is defined as a “circulation path between objects such as seats, tables, merchandise equipment, displays, shelves, desks, etc”); Title 24-1981 § 2-710(a)(7)(A); Title 24-1984 § 2-710(b)(7)(A); Title 24-1987 § 2-712(b)(7)(A); Title 24-1989 § 712(b)(7)(A).
FN17. Mr. Azalde referred to Taco Bell's queue lines as “food service lines.” (Fox Decl. ¶ 15, Ex. 10, Azalde Colo. Dep. at 35 .)
The stores listed in Exhibit 1 have queue lines in which at least one lane or turn is 32 inches or less in width. (Fox Decl. ¶ 2, Ex. 1.) The width of 32 inches takes into account the 36-inch requirement set forth in Title 24, minus the 4-inch queue line construction tolerance set forth by Defendant's Rule 30(b)(6) designee. (Id. at ¶ 20, Ex. 15, Azalde Depo. at 33-34.) Accordingly, Exhibit 1 sets forth restaurants with queue lines that violate Title 24 because they have queue lines in which at least one lane or turn is 32 inches or less in width. Because the queue lines in Exhibit 1 violate Title 24, they would also violate both the CDPA and the Unruh Act, see, e.g., Arnold, 866 F.Supp. at 439, unless, as discussed more fully below, Defendant's auxiliary access lanes raise a triable issue of fact as to whether the auxiliary access lanes provide a means of equivalent facilitation.
2. Exhibit 2-ADA, Unruh, and CDPA

The queue lines in Exhibit 2 are measurements taken from stores built after January 26, 1993. (Fox Decl. ¶ 3, Ex 2.) For stores built in that time frame, Plaintiffs rely on violations of the DOJ Standards for newly-constructed facilities as basis for liability under the ADA, and also as a predicate for liability under Unruh and the CDPA. See Part 36 of 28 C.F.R; see also ADAAG (incorporated into the DOJ regulations as Appendix A of 28 C.F.R. Part 36); 28 C.F.R. § 35.151(c)).
Queue lines in restaurants built after January 26, 1993 are required to comply with the “accessible route” requirements of the DOJ Standards. An “accessible route” is “[a] continuous unobstructed path connecting all accessible elements and spaces of a building or facility.” 28 C.F.R. pt. 36, app. A, § 3.5. Doors and counters are “elements” under the DOJ Standards. See id. (defining elements), §§ 4.3.9 (doors), 5.2 & 7.2 (counters). Notwithstanding the existence of the auxiliary access lanes, Plaintiffs argue that as part of the route that customers are expected to follow from the entrance to the counter, the queue line must comply with the requirements governing such routes.
*10 The DOJ Standards governing accessible routes prescribe specific measurements where a route makes a 180-degree turn around an obstruction, as the queue line does where patrons make a 180-degree turn around the post in the middle. 28 C.F.R. pt 36, app. A, § 4.3.3 (“If a person in a wheelchair must make a turn around an obstruction, the minimum clear width of the accessible route shall be as shown in Fig. 7(a) and 7(b).”) Figure 7(b) dictates that each lane must be a minimum of 42 inches wide and the turn must be at least 48 inches wide, as shown below.

Id. at Fig. 7(b). The DOJ Standards alternatively provide that each lane may be the minimum 36 inches permitted for accessible routes, provided that there is a 60-inch space at the turn for the wheelchair-using patron to make a 180-degree turn in place. Id. at § 4.2.1 (requiring a 36-inch width for an accessible route) & § 4 .2.3 (“The space required for a wheelchair to make a 180-degree turn is a clear space of 60 inches diameter (see Fig. 3(a) ...”). Figure 3(a) illustrates the latter turning space, as shown below.

Id. at Fig. 3(a). Accordingly, under DOJ Standards: (1) if the queue line's lanes are less than 42 inches wide, a 60-inch diameter turning space is required; and (2) if the

queue line's lanes are at least 42 inches wide, then a turning space of at least 48 inches is required. In any event, the turn can never be less than 48 inches.

The restaurants identified in Exhibit 2 have queue lines that have: (1) at least one turn that is 44 inches or less than width; or (2) lanes that are 32 inches or less and turns that are 56 inches or less. (Fox Decl. ¶ 3, Ex. 2.) The width measurements of 44 inches, 32 inches, and 56 inches, represent the applicable DOJ Standards minus the 4-inch queue line construction tolerance set forth by Defendant's Rule 30(b)(6) designee. (Id. at ¶ 20, Ex. 15, Azalde Depo. at 33-34.) Because the queue lines in Exhibit 2 violate the DOJ Standards, they would violate the ADA, and in turn, the queue lines would also violate the CDPA and the Unruh, see, e.g., Arnold, 866 F.Supp. at 439, unless, as discussed more fully below, Defendant's auxiliary access lanes raise a triable issue of fact as to whether the auxiliary access lanes provide a means of equivalent facilitation.
B. Auxiliary Access Lanes
Plaintiffs assert that Defendant's use of the auxiliary access lanes discriminate against patrons who use wheelchairs by: (1) denying them the equal opportunity to benefit from its queue lines; and (2) segregating them from non-disabled patrons. Plaintiffs emphasize that Defendant uses queue lines because they make the ordering process much easier for its customers. Plaintiffs specifically point to the deposition testimony of Defendant's Rule 30(b)(6) witness in a similar action, where the deponent stated that the queue lines provide
a stress-free ordering system for the customer.... If you don't have queue lines, the customers spend an inordinate amount of time jumping from line to line. And typically by the time they get to the front of the line, they don't even know what they want. So in the queue, they don't have to worry about what line they are in, they can concentrate on what they want to order.

At the hearing in this matter, Plaintiffs' counsel directed the Court to two undisputed facts upon which the Court should grant summary judgment in their favor. Plaintiffs' counsel first pointed to the undisputed fact that the DOJ's amicus brief in another action indicating that its view was that the segregated auxiliary access lanes violated DOJ Standards. (Fox Decl. at ¶ 19, Ex. 14.) FN18 Next, Plaintiffs' counsel argued that the factual record supports a finding that disabled persons are denied the benefit of the purpose of the queue lines, which is to provide a stress-free ordering system.FN19
FN18. Although not dispositive on the issue, the Court gives deference to the DOJ's interpretation of the applicable standards. In that other action, the DOJ submitted an amicus brief setting forth its view that Defendant's queue lines, and auxiliary access lanes for wheelchair-users, violate the DOJ Standards. (CCDC v. Taco Bell, Memo. of United States as Amicus Curiae in Opp. to Taco Bell's Summ. J. Mot. at 15-20 (Jan. 27, 1999) (Fox Decl. at ¶ 19, Ex. 14).) An agency's interpretation of its own regulations is “controlling” unless it is “ ‘plainly erroneous or inconsistent with the regulation.’ “ Basiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir.2006) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). The fact that the agency interpretation is set forth in an amicus brief does not lessen the deference owed to that interpretation. See Basiri, 463 F.3d at 930 (agency interpretation owed deference “even if through an informal process”); Zurich American Ins. Co. v. Whittier Props. Inc., 356 F.3d 1132, 1137 n. 27 (9th Cir.2004) (citing Auer for proposition that “agency's position set forth in a legal brief, in a case in which the agency is not a party, is entitled to deference.”).

*11 (Fox Decl. at ¶ 20, Ex. 15, Azalde Depo. at 40.) Plaintiffs also highlight Defendant's discovery responses, where Defendant stated that queue lines provide “faster and fairer” service to customers. (Id. at ¶ 16, Ex. 11.) According to Plaintiffs, the auxiliary access lanes segregate them, and deprive them of the benefits associated with the queue lines. Plaintiffs also state that disabled customers who are forced to use the auxiliary access lanes are put in the uncomfortable position of appearing to “cut” in front of the non-disabled customers waiting in the queue line, or must try to keep track of the order in which the other customers arrived to determine when they should approach the counter.

FN19. In further support of their argument, Plaintiffs also cite to legal authority and argue that courts have found discrimination and segregation in public accommodations in violation of the ADA and California law on similar records. However, the Court notes that the authority upon which Plaintiffs rely are not procedurally postured as motions for summary judgment and are therefore distinguishable from the current case. None of Plaintiffs' legal authority supports the proposition that this Court may grant summary judgment, on this record, and accordingly find that Defendant's auxiliary access lanes do not provide equivalent

facilitation in comparison to its queue lines. See Boemio v. Love's Restaurant, 954 F.Supp. 204 (S.D.Cal.1997) (finding violations of ADA and California law after bench trial); Wyatt v. Ralph Grocery Co., 2002 WL 32985831 (C.D.Cal. Feb.21, 2002) (finding violations of ADA and California law after bench trial); Neighborhood Ass'n Of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50 (1st Cir.2006) (denying plaintiffs' request for preliminary injunction).
Although not substantively relied on by Plaintiffs, the Court notes that partial summary judgment was granted in United States v. AMC Entertainment, Inc., 245 F.Supp.2d 1094 (C.D.Cal.2003). There the Court found that the defendant had failed to adduce evidence that the documented ADA violations were the result of designs and technologies that were implemented in order to provide substantially equivalent or greater access to and usability of the facility under section 2.2. Id. at 1101. The court noted that there was no evidence that any of the documented violations have resulted in substantially equivalent or greater access to the theaters. Id. To the contrary, in the current case, there is a disputed factual question as to whether the auxiliary access lanes provide equivalent or greater access.
Defendant insists that, Plaintiffs' factual contentions notwithstanding, the auxiliary access lanes provide equivalent facilitation for customer service when compared to the queue lines. Defendant emphasizes that it has a customer assistance policy that provides mobility-impaired patrons with the effective opportunity to order using the auxiliary access lanes instead of the queue lines. (Blackseth Decl. at ¶ 9; Harkins Decl. at ¶¶ 4-7.) Defendant also identifies facts indicating that disabled persons have benefitted from the auxiliary access lanes and the customer assistance policy. (Blackseth Decl. at ¶ 9.) In such instances, the disabled person stated they did not experience any discomfort, embarrassment, or hostility from other able-bodied customers nor the sense that they were being singled out by restaurant employees by being invited to place their order at the auxiliary access lane next to the ordering counter. (Id.) Defendant also argues that it intends to soon install indoor signage communicating such policy to its customers. (Harkins Decl. at ¶ 7.)
The ADA and California law make it illegal to provide

persons with disabilities with services or facilities that are not equal to those provided others. 42 U.S.C. § 12182(b)(1)(A)(ii); Cal. Civ.Code §§ 51(b), 54.1(a)(1). The ADA also prohibits public accommodations from segregating disabled persons from others. See 42 U.S.C. § 12182(b)(1)(B) (“[g]oods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.”); See also 42 U.S.C. § 12182(b)(1)(A)(iii) (making it illegal to provide a person with a disability “a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals.” (Emphasis added)). California law similarly requires persons with disabilities to be afforded “full and equal” access to business establishments and places of public accommodation. Cal. Civ.Code §§ 51(b), 54.1(a)(1). Newly constructed facilities are able to depart from strict adherence of the design specifications of the DOJ Standards if they provide a substantially equivalent or greater level of access for people with disabilities. 28 C.F.R. pt 36, app. A, § 2.2 (defining “equivalent facilitation” providing that “[d]epartures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.”); see also § 4.3.2(1) (providing that accessible routes and the route for the general public coincide “to the maximum extent feasible.”). California law similarly provides for an equivalent facilitation exception in certain circumstances. Cal. Gov't Code § 4451(f) (”[a]dministrative authorities ... may grant exceptions from the literal requirements of the building standards published in the California Building Standards Code relating to access for persons with disabilities ... only when it is clearly evident that equivalent facilitation and protection that meets or exceeds the requirements under federal law are thereby secured.); see also Cal. Health & Safety Code § 19957; CHE, Inc., 150 Cal.App. at 139 (reversing trial court's grant of summary judgment and finding triable issues of fact existed as to whether the facility at issue provided equivalent facilitation.)
*12 Here, after a review of the factual record the Court finds Plaintiffs' motion for partial summary judgment raises a triable issue of material fact as to whether Defendant's auxiliary access lanes provide equivalent facilitation in comparison to the queue lines. The Court cannot find, as a matter of law on this record, that the auxiliary access lanes are not equivalent facilitation compared to the queue lines. The current record indicates that the auxiliary access lanes, while separate, are in close proximity to the queue lines. Additionally, there is

evidence in the record that the auxiliary access lanes, in conjunction with Defendant's customer assistance policy, do not necessarily deprive Defendant's disabled customers of the benefits associated with its restaurants or queue lines. There is also evidence that disabled customers who use the auxiliary access lanes do not necessarily experience the discomfort, embarrassment, or hostility alleged by Plaintiffs. For these reasons, the Court cannot find as a matter of law, on this record, that the auxiliary access lanes are not an equivalent facilitation to the queue lines.

establishing that Plaintiffs cannot open the doors without assistance, and therefore Plaintiffs have failed to show that the doors at issue are a barrier to their effective access. Next, as to the restaurants constructed before January 26, 1993, Defendant argues that Plaintiffs cannot satisfy their burden under the ADA of demonstrating that removal of the architectural barriers is “readily achievable.” Defendant also argues that in order for Plaintiffs to prevail on their Title 24 claims for restaurants built prior to April 1, 1994, Plaintiffs must establish that the doors in violation were “primary entrances.”

Because triable issues of material fact exist as to whether the auxiliary access lanes deny equal opportunity to benefit from the queue lines and whether the auxiliary access lanes segregate disabled patrons, the Court cannot grant partial summary judgment. For the foregoing reasons the Court DENIES Plaintiffs' motion for partial summary judgment as to the queue lines and auxiliary access lanes set forth in Exhibits 1 and 2.
V. Force Necessary to Open Interior and Exterior Doors
The second architectural barrier at issue is the force necessary to open the interior and exterior doors of Defendant's restaurants.
Plaintiffs claim that the force necessary to open the interior and exterior doors in Defendant's restaurants listed in Exhibits 3, 4, and 5, violates applicable new construction standards, and therefore violates the ADA, the CDPA, and/or Unruh. More specifically, Plaintiffs claim that: (1) the interior doors in Exhibit 3-consisting of door measurements taken from buildings built after January 26, 1993-violate the ADA, and therefore violate the CDPA and Unruh; (2) the interior doors in Exhibit 4-consisting of door measurements taken from buildings built between December 31, 1981 and January 26, 1993-violate Title 24 and therefore violate the CDPA; and (3) the exterior doors in Exhibit 5-consisting of door measurements taken from buildings built after December 31, 1981-violate Title 24 and therefore violate the CDPA.
In opposition, as to all of the restaurants at issue, Defendant contends that summary judgment is inappropriate because Plaintiffs cannot satisfy their initial burden under the ADA of demonstrating that the exterior and interior doors deprived Plaintiffs of effective access. Defendant claims there is no evidence in the record

*13 The Court now turns to the door force in each of the restaurants as set forth in Exhibits 3, 4, and 5.
A. Interior Doors-Exhibit 3
Plaintiffs argue that the interior door force for those restaurants listed in Exhibit 3-consisting of door measurements taken from buildings built after January 26, 1993-violates the ADA, and therefore violates the CDPA and Unruh. Because Plaintiffs rely upon an underlying ADA violation as a predicate for liability under CDPA and Unruh, the Court must examine the applicable DOJ Standards for interior door force to resolve the issue.
The applicable DOJ Standards for interior door force limit the force necessary to open them to five pounds. 28 C.F.R. pt 36, app. A, § 4.13.11(2)(b). FN20 The parties in this action have stipulated to a door force tolerance of seven pounds. (Fox Decl. at ¶ 14, Ex. 9, Stipulated Tolerances.) In order to avoid factual disputes as to Exhibit 3, and in accordance with the parties' stipulated tolerances, Plaintiffs have included only the doors that require in excess of seven pounds of pressure to open.
FN20. The Court notes that the DOJ Standards do not provide a standard opening force for exterior doors. See Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1155 (D.Or.1998) (noting that the Access Board and DOJ have never promulgated any force standard for exterior doors). However, because Plaintiffs do not rely on DOJ Standards as means to establish any exterior door force violations, the Court need not address the proper standard, if any, for exterior doors under the ADA.

(Fox.Decl.¶ 5, Ex. 3.) Here, because the doors listed in Exhibit 3 are subject to the DOJ Standardof five-pounds as provided above, and because those doors each require in excess of seven pounds offorce to open, each of them is in violation of the ADA, and therefore also in violation of the CDPAand Unruh. See Cal. Civ.Code § § 51(f), 54(c) & 54.1(d).

satisfied their initial burden of demonstrating an absence of a triable issue of material fact as to those interior doors listed in Exhibit 4. See Celotex Corp., 477 U.S. at 323. Accordingly, the burden shifts to Defendant to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., 475 U.S. at 586-87.

For these reasons, the Court finds that Plaintiffs have satisfied their initial burden of demonstrating an absence of a triable issue of material fact as to those interior doors listed in Exhibit 3. See Celotex Corp., 477 U.S. at 323. Accordingly, the burden shifts to Defendant to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., 475 U.S. at 586-87. As discussed in more detail below, the Court finds each of Defendant's door force arguments to the contrary to be unconvincing. However, because Defendant's door force arguments have application to each of the categories of doors listed in Exhibit 3, Exhibit 4, and Exhibit 5, the Court will completely address the remaining doors in Exhibit 4 and Exhibit 5 before turning to Defendant's arguments.
B. Interior Doors-Exhibit 4
Plaintiffs argue that the interior door force for those restaurants listed in Exhibit 4-consisting of door measurements taken from buildings built between December 31, 1981 and January 26, 1993-violates Title 24, and therefore violates the CDPA.
The applicable Title 24 standard for interior door force to open doors in facilities constructed after December 31, 1981 is five pounds. See Title 24-1981 § 2-3303(l)(2); Title 24-1984 § 2-3303(l)(2); Title 24-1987 § 2-3304(1)(2); Title 24-1989 § 3304(i .2) (1); Title 24-1994 § 3304(i.2)(1); Title 24-1999 § 1133B.2.5; Title 24-2001 § 1133B.2.5. Again, in order to avoid factual disputes, and in accordance with the parties' stipulated tolerances, the doors in Exhibit 4 each require in excess of seven pounds of pressure to open. (Fox Decl. ¶ 5, Ex. 3.) Here, because the doors listed in Exhibit 4 are subject to the five-pound Title 24 standard as provided above, and because those doors each require in excess of seven pounds of force to open, each of them is in violation of the Title 24, and therefore also in violation of the CDPA. See Arnold, 158 F.R.D. at 447.
*14 For these reasons, the Court finds that Plaintiffs have

C. Exterior Doors-Exhibit 5
Plaintiffs argue that the exterior door force for those restaurants listed in Exhibit 5-consisting of door measurements taken from buildings built after December 31, 1981-violates Title 24, and therefore violates the CDPA.
The applicable Title 24 standard for exterior door force in facilities constructed between December 31, 1981 and November 1, 2002 was limited to eight and one-half pounds. See Title 24-1981 § 2-3303(l)(2); Title 24-1984 § 2-3303(l)(2); Title 24-1987 § 2-3304(1)(2); Title 24-1989 § 3304(i.2)(1); Title 24-1994 § 3304(i.2)(1); Title 24-1999 § 1133B.2.5. For facilities constructed after November 1, 2002, the force necessary to open an exterior door was reduced to five pounds. See Title 24-2001 § 1133B.2.5.FN21
FN21. Plaintiffs explain that only one of the stores at issue in this motion was built after November 1, 2002, and that they Plaintiffs have applied only the pre-2002 standard. (Pl.'s Mot. at 21:27 n. 27.)
Unlike the previous door force measurements, the parties have not reached a stipulation on the applicable tolerances for maximum exterior door force under Title 24. (Fox Decl. at ¶ 24, Ex. 19, Letter from R. Hikida to T. Fox dated May 24, 2006 (indicating “the Orange Empire chapter of the ICBO has indicated that a 9 lb. maximum pull tolerance for exterior doors is appropriate.”).) In light of the parties' correspondence setting forth a proposed tolerance of nine pounds, Plaintiffs have included within Exhibit 5 only those doors that require at least nine and one-half pounds to open. (Pl.'s Mot. at 21:15-22:4.) Taking into account the statutory door force maximums, the Court finds that as to those facilities referenced in Exhibit 5-that were constructed between December 31, 1981 and November 1, 2002-the measurements exceed the statutory maximum door force requirement by no less than one pound; and as to those facilities contained in Exhibit

5-that were constructed after November 1, 2002-the measurements exceed the statutory maximum door force requirement by no less than four and one-half pounds. Accordingly, Exhibit 5 contains a list of non-compliant exterior doors.
However, unlike the interior doors referenced in Exhibits 3 and 4, the doors in Exhibit 5 raise an additional issue by virtue of being exterior doors. As to the exterior doors in Exhibit 5, Defendant distinguishes between the doors that are “entrances,” and the doors that are “primary entrances” noting that Title 24 eliminated the reference to “primary” entrances after April 1, 1994. Therefore, Defendant argues that in order for Plaintiffs to prevail on their Title 24 claims for restaurants built prior to April 1, 1994, Plaintiffs must also establish that the non-compliant exterior doors were “primary entrances” rather than just “entrances,” citing Title 24-1994 § 2-3301. See Title 24-1989 § 417, compare, Title 24-1994 §§ 406, 417.
*15 At the hearing in this matter, Plaintiffs' counsel responded to Defendant's “primary entrance” distinction stating that under Title 24 all customer entrances, by definition, were “primary entrances.” Plaintiffs pointed to the commentary found in the California State Accessibility Standards Interpretive Manual for the Office of the State Architect. In that manual the Office of the State Architect responded to the question of what constitutes a “primary entrance” stating:
What is a primary entrance?
Section 417 states primary entrance shall mean any entrance to a facility which has a substantial flow of pedestrian traffic to anyspecific major function of the facility.
As an example in a large shopping mall with several entrances to the mall area which would be considered the primary entrance? All of them would!
Office of the State Architect, California State Accessibility Standards Interpretive Manual § 3301(f)(1), at 95 (3d ed.1989). Plaintiffs also pointed to the decision in People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 197 Cal.Rptr. 484 (1983) arguing that “primary entrance” should be given a broad definition by this Court. Lastly, Plaintiffs' counsel alternatively argued that “[i]f the Court decides that the primary entrance issue creates a factual

issue, that [factual issue] only applies to the exterior doors in restaurants built before April of 1994.” (Mot.Hr'g. Tr. 41:5-8.)
In CHE, Inc., the court addressed the issue of what constitutes a “primary entrance.” CHE, Inc., 150 Cal.App.3d at 134-35, 197 Cal.Rptr. 484. There, the court stated that a “primary entrance” is “any entrance to a facility which has a substantial flow of pedestrian traffic to any specific major function of the facility.” Id. at 134, 197 Cal.Rptr. 484 (citing Title 24-1981 § 2-417(k)); see also, Title 24-1984 § 2-417(k); Title 24-1987 § 2-417 at 26; Title 24-1989 § 417(s). There, the court rejected the defendant's argument that the then applicable statutory and regulatory scheme authorized separate primary entrances for handicapped and non-handicapped patrons. Id. at 135, 197 Cal.Rptr. 484. In doing so, the court stated, “[b]ecause we find the required primary entrance must necessarily be burdened by a substantial flow of pedestrian traffic, a public restaurant entrance used by no patrons other than the physically handicapped cannot realistically be a ‘primary entrance.’ “ Id. Thus, the court recognized a distinction between “primary entrances” and “entrances.”
The Court finds the distinction between “primary entrances” and “entrances” to be significant on this record. After considering the “primary entrance” analysis from CHE, Inc. in conjunction with the April 1994 amendment to Title 24, which eliminated the reference to “primary” entrances, the Court finds that triable issues fact exist as to some of the exterior doors in Exhibit 5. In particular, turning to the exterior doors for those restaurants built before April 1994, the undisputed factual record does not allow this Court to find, as a matter of law, that those exterior doors were burdened by a sufficiently substantial flow of pedestrian traffic to constitute “primary entrances” as Title 24 then required. Because the Court cannot determine, as a matter of law, that the pre-April 1994 non-compliant exterior doors were “primary entrances” it cannot grant partial summary judgment as to those doors. However, as to the exterior doors for those restaurants built after April 1994, the undisputed factual record is sufficient for the Court to find, as a matter of law, that the non-compliant exterior doors were “entrances.” Accordingly, the Court finds that Plaintiffs have satisfied their initial burden of demonstrating an absence of a triable issue of material fact as to the exterior doors for those restaurants built after April 1994. Accordingly, the burden shifts to Defendant to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., 475 U.S. at 586-87.FN22

FN22. Defendant makes weight of the fact that there is no DOJ Standard for exterior door opening force. However, because Plaintiffs do not rely on any DOJ Standards to establish any exterior door force ADA violations, the Court finds this argument to be irrelevant to the factual record now before this Court.
D. Defendant's Door Force Arguments
*16 Because Plaintiffs have satisfied their initial burden of demonstrating an absence of a triable issue of material fact as to those interior doors listed in Exhibits 3 and 4, and because Plaintiffs have satisfied their initial burden of demonstrating an absence of a triable issue of material fact as to some of the exterior doors listed in Exhibit 5, the Court now turns to Defendant's arguments as to why summary judgment on the issue of door force is inappropriate. See Celotex Corp., 477 U.S. at 323.
1. Denial of “Effective Access”
Defendant argues that in order for Plaintiffs to prevail they must initially show that Defendant's exterior and interior doors actually deprived Plaintiffs of “effective access.” Defendant posits that Plaintiffs have failed to satisfy the initial burden of demonstrating a denial of “effective access.” In support of its position, Defendant argues that the factual record is devoid of evidence establishing that Plaintiffs cannot open the doors at issue without assistance and therefore they have failed to show that the doors are a barrier to their “effective access.”
It is true that to be entitled monetary damages the class members must demonstrate a denial of “equal access.” See Donald v. Café Royale, Inc., 218 Cal.App.3d 168, 266 Cal.Rptr. 804 (Cal.Ct.App.1990) .FN23 However, to be entitled to injunctive relief, under both California law and the ADA's new construction provisions, Plaintiffs must only demonstrate that the architectural elements at issue were built in violation of Title 24 or the DOJ Standards, respectively. Because the current motion seeks summary judgment as to liability and injunctive relief, and not monetary relief, the Court finds Defendant's monetary relief argument here to be unconvincing.
FN23. Plaintiffs concede that in order to obtain monetary damages, Plaintiffs must show that the non-compliant doors denied class members

“equal access.” Donald, 218 Cal.App.3d at 183, 266 Cal.Rptr. 804.
In Donald, the court explained the difference between the necessary showings for injunctive versus monetary relief under Title 24. Id. at 183, 266 Cal.Rptr. 804. In doing so, the court first noted that the California legislature recognized that the specifications in Title 24 are the “minimum requirements to insure that buildings, structures and related facilities ... are accessible to” persons with disabilities, Cal. Govt.Code § 4452, and that the legislature provided a private right of action to enforce these minimum standards. See Cal. Civ.Code § 55; Cal. Health & Safety Code § 19953. In applying these standards, the court stated,
Sections 19955 et seq., 4450 et seq. and 54 et seq., taken together, provide for atwo-fold procedure. A designated public agency or an individual may initiate anaction to enforce compliance with the handicapped access standards provided for bysection 19955 et seq. and section 4450 et seq. On the other hand, to maintain an action for damages pursuant to section 54 et seq. an individual must take the additional step of establishing that he or she was denied equal access on a particularoccasion.... For example, let us take a restaurant that is required to have 100 percentof its dining area accessible to the handicapped, but in fact only 90 percent of thedining area meets this standard. If a handicapped individual is readily seated andserved in the 90 percent primary dining area which meets all handicap accessrequirements, then he or she would not have a cause of action for damages for denial or interference with admittance pursuant to Civil Code section 54.3, but an individualor a designated public agency could pursue an action under one of the enforcementprovisions to bring about full compliance by the restaurant.
*17 Id. at 183, 266 Cal.Rptr. 804 (emphasis added).
Here, as to the doors in Exhibit 3, Plaintiffs have established that those doors violate the DOJ Standards, and thus Plaintiffs are entitled to a finding of liability and injunctive relief under the ADA. As to the doors in Exhibits 4 and the doors in Exhibit 5 constructed after April 1, 1994, Plaintiffs have established violations of Title 24, and thus Plaintiffs are entitled to a finding of liability and injunctive relief under state law. Id. Defendant's argument to the contrary relies on the ADA standard for preexisting facilities, which is not applicable

to the doors at issue. For these reasons, the Court finds Defendant's arguments do not preclude a grant of summary judgment for Plaintiffs.
2. “Readily Achievable” Standard

exemptions to date, it may nevertheless retroactively apply for them. Plaintiffs reply that building officials do not have unfettered discretion to approve facilities that violate Title 24, that no such exception applies here and that it would be improper for the Court to presume that any exception applied. As discussed below, the Court finds Defendant's argument here problematic.

As to the restaurants constructed before January 26, 1993, Defendant maintains that Plaintiffs cannot satisfy their prima facie burden under the ADA of demonstrating that removal of the architectural barriers is “readily achievable.” However, Defendant again applies an improper standard. As explained above, Plaintiffs do not rely on the ADA's “readily achievable” standard applicable to preexisting facilities. To the contrary, Plaintiffs rely on the new construction standard for buildings constructed after January 26, 1993, which are by definition not preexisting facilities. See Mannick, 2006 WL 1626909 at *4-*6 (explaining the different standards for new construction versus preexisting facilities).FN24 Accordingly, Defendant's argument does not preclude a grant of summary judgment for Plaintiffs.
FN24. Defendant makes a related argument that Plaintiffs have also failed to satisfy their initial burden of demonstrating that “alterations” of the restaurants constructed before January 26, 1993. This argument fails for the same reasons. As set out above, Plaintiffs to not rely on DOJ Standards-for “alterations,” or otherwise-as a means to establish any ADA violation for those restaurants.
3. Administrative Agency Discretion and Certificates of Occupancy
Defendant asserts that California Heath and Safety Code and Title 24 provide local building departments with discretion to grant exceptions to the California Building Code where doing so would create practical difficulty or unnecessary hardship. According to Defendant, the certificates of occupancy for each restaurant indicate that a building inspector “either determined that the stores in question complied with the California Building code or determined that some type of exemption warranted some deviation from the California Building Code.” (Def.'s Opp. at 27:25-28:3; 32:25-33:3.) Defendant avers that Plaintiffs' motion for partial summary judgment improperly assumes that Defendant has not received a hardship exemption for the restaurants at issue, and that even if Defendant has not received any hardship

The fact that building inspectors have discretionary governmental immunity as to the issuance of building and occupancy permits does not otherwise empower them to actually issue permits for facilities that violate statutory or regulatory requirements. Building departments and other administrative agencies are “not ... lawmaking bod[ies] and ha[ve] no power to disregard or amend the ordinances which define [their] authority.” City & County of San Francisco v. Bd. of Permit Appeals, 207 Cal.App.3d 1099, 1109-10, 255 Cal.Rptr. 307 (Cal.Ct.App.1989). “ ‘An administrative agency, therefore, must act within the powers conferred upon it by law and may not validly act in excess of such powers.’ “ City & County of San Francisco v. Padilla, 23 Cal.App.3d 388, 400, 100 Cal.Rptr. 223 (Cal.Ct.App.1972) (citing Ferdig v. State Personnel Bd., 71 Cal.2d 96, 103, 77 Cal.Rptr. 224, 453 P.2d 728 (1969)); see also Bd. of Permit Appeals, 207 Cal.App.3d at 1105, 255 Cal.Rptr. 307. “Accordingly, it is well settled that ‘when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void.’ “ Padilla, 23 Cal.App.3d at 400, 100 Cal.Rptr. 223 (citing Ferdig, 71 Cal.2d 96 at 104, 77 Cal.Rptr. 224, 453 P.2d 728); Bd. of Permit Appeals, 207 Cal.App.3d at 1105, 255 Cal.Rptr. 307. In fact, courts have reversed building agency actions that exceeded the agency's statutory authority. See e.g., Horowitz v. City of Los Angeles, 124 Cal.App.4th 1344, 1347, 1355-56, 22 Cal.Rptr.3d 295 (Cal.Ct.App.2004) (rejecting city's argument that the court could not order it to revoke the permits because it would be contrary to the city's discretion, and stating, “the City has no discretion to issue a permit in the absence of compliance [with the municipal code].”); Bd. of Permit Appeals, 207 Cal.App.3d at 1110, 255 Cal.Rptr. 307. Thus, while an agency may have discretion, it must exercise that discretion within the bounds set forth by the applicable law.
*18 Defendant relies upon a series of cases that discuss the discretion afforded to administrative officials, such as building officials. However, unlike the current case, each of Defendant's cases involve suits against governmental entities alleging failure to discharge their duties, thereby raising the issue of discretionary governmental immunity. See Thompson v. City of Lake Elsinore, 18 Cal.App.4th

49, 53-54, 22 Cal.Rptr.2d 344 (Cal.Ct.App.1993) (discussing California Government Code Section 815.6 in suit against city); Haggis v. City of Los Angeles, 22 Cal.4th 490, 498-99, 93 Cal.Rptr.2d 327, 993 P.2d 983 (Cal.2000) (discussing section 815.6 in suit brought by property owner against city for city's failure to follow its own municipal code); Inland Empire Health Plan v.Super. Ct., 108 Cal.App.4th 588, 592-93, 133 Cal.Rptr.2d 735 (Cal.Ct.App.2003) (discussing public HMO's immunity under section 818.4 based on its discretionary decision to credential a certain physician); Fox v. County of Fresno, 170 Cal.App.3d 1238, 1241-42, 216 Cal.Rptr. 879 (Cal.Ct.App.1985) (finding duties imposed on public entities by Health & Saf.Code, § 17980, to abate or take other appropriate action with regard to nuisances, are discretionary, not mandatory, therefore section § 815.6, which renders a public entity liable for injury caused by its failure to discharge a mandatory duty, was inapplicable, and the county was not liable for the fire damage); Sutherland v. City of Fort Bragg, 86 Cal.App.4th 13, 18-19, 102 Cal.Rptr.2d 736 (Cal.Ct.App.2000) (finding provisions at issue imposed a discretionary, rather than mandatory, duty, as required for liability under Gov.Code, § 815.6); Creason v. Dep't of Health Servs., 18 Cal.4th 623, 629-30, 76 Cal.Rptr.2d 489, 957 P.2d 1323 (Cal.1998) (concluding the department did not have a mandatory duty, and its allegedly negligent exercise of discretion in selecting a particular standard would not support a cause of action under section 815.6.). These cases are inapposite on the question of whether permits were issued. Because the current case is factually and legally distinguishable from these cases, they are not helpful in resolving the issues now before the Court.
What is clear is that the legal authority presented by the parties demonstrates that building inspectors do not have discretion to issue building permits or certificates of occupancy for facilities that do not comply with Title 24. Because building inspector discretion is bounded by these provisions, to avoid summary judgment Defendant must show that the architectural elements at issue either: (1) complied with Title 24; or (2) that the building inspector applied a statutory or regulatory exception to the requirements of Title 24. Defendant concedes that the measurements are in violation of Title 24. Therefore, the Court turns to the issue of whether there is evidence that the building inspectors applied an exception to Title 24 for any of the restaurants at issue.
California law requires that public accommodations “shall conform” with the accessibility requirements of the Title 24 in effect at the time of construction “[e]xcept as otherwise provided by law.” Cal. Gov't Code § 4451(c).

Thus a public accommodation must comply with the architectural specifications of Title 24 unless a regulatory or statutory exception applies. California law provides for only two such exceptions: (1) where a covered entity can show that compliance with Title 24 would result in an unnecessary hardship, and (2) where the entity has shown that its access design will provide equivalent facilitation for people with disabilities. See Cal. Health & Safety Code § 19957; Cal. Gov't Code § 4451(f). Because the Court has already disposed of Defendant's equivalent facilitation argument above, the Court turns to Defendant's reliance upon the unnecessary hardship exception.
*19 The unnecessary hardship exception applies where compliance with the building standard at the time of construction would make a construction project “unfeasible” based on, among other factors, the cost of providing access, and the cost of all construction contemplated. See Title 24-1981 § 2-422(c); Title 24-1984 § 2-422(c); Title 24-1987 § 2-422 at 29; Title 24-1989 § 422(c); Title 24-1994 § 422(c); Title 24-1999 § 222-U at 28; Title 24-2001 § 222-U at 22-23. According to California's Office of the State Architect, which promulgated the Title 24 access regulations, the undue hardship exception applies only where compliance would be “difficult or impossible because the cost of providing access is too high in relationship to the total cost of the job.” Cal. Gov't Code § 4450(b); Office of the State Architect, California State Accessibility Standards Interpretive Manual § 110A(b)11A at 11 (3d ed.1989) (interpreting “unreasonable hardship”).FN25 Here, consistent with the rules of statutory construction, the burden of proving the unreasonable exception applies falls on Defendant. (Joint Status Conference Statement ¶ 27 (Docket No. 157) (stipulating that Defendant has the burden of proof of establishing that the unreasonable hardship exception applies); see also N.L.R.B. v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) (discussing “ ‘the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.’ “ (Citation omitted.)).
FN25. An agency's interpretation of its regulations is “controlling” unless it is “ ‘plainly erroneous or inconsistent with the regulation.’ “ See Basiri, 463 F.3d 927at 930 (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).
In the current case, Plaintiffs have produced evidence

indicating that certain architectural elements of Defendant's restaurants are in violation of Title 24. (Fox Decl., ¶¶ 6, 7, and 11, Exs. 4, 5, and 8.) Having satisfied their initial burden, Plaintiffs have shifted the burden to Defendant to present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. In response Defendant has failed to identify evidence from which the Court could find: (1) that any of the occupancy permits for any of the restaurants at issue were based on a hardship exception; or (2) that any such hardship exception was merited. Defendant's conjecture that the building inspectors may have applied the hardship exception is insufficient to create a material issue of fact to defeat Plaintiffs' motion for partial summary judgment. Anderson, 477 U.S. at 247-48.

56(e); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., 475 U.S. at 586-87. Accordingly, the Court GRANTS Plaintiffs' motion for partial summary judgment as to the interior door force for those restaurants listed in Exhibit 3; the Court GRANTS Plaintiffs' motion for partial summary judgment as to the interior door force for those restaurants listed in Exhibit 4; the Court GRANTS Plaintiffs' motion for partial summary judgment as to the exterior door force for those restaurants listed in Exhibit 5 that were constructed after April 1, 1994; and the Court DENIES Plaintiffs' motion for partial summary judgment as to the exterior door force for those restaurants listed in Exhibit 5 that were constructed before April 1, 1994.
VI. Fixed Seating

Alternatively, Defendant asks the Court to presume that the building inspectors granted hardship exemptions, citing E.R. Bringle v. Bd. of Supervisors, 54 Cal.2d 86, 89, 4 Cal.Rptr. 493, 351 P.2d 765 (Cal.1960) (stating that where an authorized board grants a variance it will be presumed that an official duty was performed and that the existence of the necessary facts was found.) However, that presumption does not apply here because Title 24 regulations require “details of any finding of unreasonable hardship shall [to] be recorded and entered in the files of the enforcing agency.” See Title 24-1981 § 2-422(c); Title 24-1984 § 2-422(c); Title 24-1987 § 2-422 at 29; Title 24-1989 § 422(c); Title 24-1994 § 422(c); Title 24-1999 § 222-U at 28; Title 24-2001 § 222-U at 22-23. Courts have determined that where an agency must make such findings, and set forth the relevant supportive facts, the presumption does not apply. Broadway, Laguna, Vallejo Ass'n v. Bd. of Permit Appeals, 66 Cal.2d 767, 773, 59 Cal.Rptr. 146, 427 P.2d 810 (Cal.1967) ( “The presumption that an agency's rulings rest upon the necessary findings and that such findings are supported by substantial evidence ... does not apply to agencies which must expressly state their findings and must set forth the relevant supportive facts.”); see also Bd. of Permit Appeals, 207 Cal.App.3d at 1107, 255 Cal.Rptr. 307. Because Defendant has failed to present any evidence of any hardship findings or determinations, the Court cannot presume any such findings or determinations were made. Absent any evidence supporting the application of any hardship exceptions, the Court is left with Plaintiffs' unrebutted evidence that Defendant's restaurants contained architectural elements that violated Title 24.

The final architectural barrier at issue is the number of, and knee clearance at, accessible seating positions in the fixed indoor areas of Defendant's restaurants.
Plaintiffs assert that the restaurants listed in Exhibits 6, 7, and 8 are in violation of applicable new construction standards. As to the fixed accessible seating listed in Exhibits 6 and 7 FN26, Plaintiffs claim that the seating is in violation of the ADA, and therefore also in violation of the CDPA, and Unruh. As to the accessible seating listed in Exhibits 8 FN27, Plaintiffs claim that the seating is in violation of Title 24, and therefore in violation of the CDPA. Defendant responds that summary judgment is inappropriate because knee clearance is a measurement that is not required to be centered under the table, and it is unknown whether the Special Master's methodology imposed such a requirement.
FN26. The fixed accessible seating measurements in Exhibits 6 and 7 are taken from buildings built after January 26, 1993.
FN27. The fixed accessible seating measurements in Exhibit 8 are taken from buildings built after 1981.
A. Exhibits 6 and 7-ADA, Unruh, and CDPA

*20 Having considered each of Defendant's arguments above, the Court finds that Defendant's have failed to show there is a genuine issue of fact for trial with respect to the following aspects of Plaintiffs' motion. Fed.R.Civ.P.

The fixed seating listed in Exhibits 6 and 7 are statistics and measurements, respectively, taken from restaurants built after January 26, 1993. For facilities built in that time frame, Plaintiffs rely on violations of the DOJ Standards

for newly-constructed facilities as basis for liability under the ADA, and also as a predicate for liability under Unruh and the CDPA. See Part 36 of 28 C.F.R; see also ADAAG (incorporated into the DOJ regulations as Appendix A of 28 C.F.R. Part 36); 28 C.F.R. § 35.151(c)).

Plaintiffs agree that it is not clear whether the Special Master measured knee clearances from the center of the tables, but contend that summary judgment is appropriate regardless of the Special Master's measuring methodology. (Pl.'s Rep. at 25:6-8.) As explained below, the Court finds Plaintiffs' reasoning persuasive.

Fixed seating for restaurants built after January 26, 1993 are required to comply with DOJ Standards. DOJ Standards for fixed seating require that “at least five percent (5%), but not less than one, of the fixed or built-in seating areas or tables” must be accessible, that is, must comply with section 4.32 of the DOJ Standards. 28 C.F.R. pt. 36, app. A, § 4.1.3(18). Section 4.32.3 requires a knee space that is 27 inches high, 30 inches wide and 19 inches deep. Id. at § 4.32.3. The parties have stipulated to the following tolerances: 26 1/2 inches high; 29 inches wide; 18 inches deep. (Fox Decl. at ¶ 14, Ex. 9, Stipulated Tolerances.) The Court now turns to the Special Master's findings in Exhibits 6 and 7.

Initially, the Court notes that the DOJ Standard for knee clearance support's Plaintiffs' position that the knee clearance measurement is to be made from the center of the table. Most compelling is that fact that section 4.32.3 cross references Figure 45. 28 C.F.R. pt. 36, app. A, § 4.32.3. As set forth below, Figure 45 indicates that the 30-inch dimension is centered on the table in question.

1. Exhibit 6

*21 The restaurants identified in Exhibit 6 have fixed seating that does not include at least five percent accessible seating positions as required by DOJ Standards. (Fox Decl. at ¶ 9, Ex. 6) Because the seating positions in Exhibit 6 violate the DOJ Standards, they violate the ADA, and in turn, also violate the CDPA and Unruh. See, e.g., Arnold, 866 F.Supp. at 439.

2. Exhibit 7

As reported by the Special Master, the restaurants identified in Exhibit 7 have knee clearances that do not comply with section 4.32.3, as subject to the parties' agreed tolerances. (Fox Decl. at ¶ 10, Ex. 7.) However, Defendant argues that summary judgment is not appropriate as to the measurements identified in Exhibit 7 because there is a legal question whether the 30-inch dimension-the side-to-side width of the knee clearance under the table-must be centered under the table or whether it can be off to one side. Defendant asserts that 30-inch-wide knee clearance mandated by section 4.32.3, is not required to be centered under the table. Accordingly, Defendant contends that summary judgment is inappropriate on the current record given that the Special Master's methodology in collecting the table measurements was incomplete.

See id. at Fig. 45. In this figure, the dotted line outlines the required clear floor space adjacent to and underneath a fixed table. The 30-inch dimension corresponds to the 30-inch-wide knee clearance required by section 4.32.3. This illustration clearly depicts the 30-inch dimension as centered on the table in question. Common sense also supports this interpretation because if the knee clearance area were not required to be centered, a wheelchair-using patron could end up sitting considerably off to one side, therefore unable to make use of a portion of the table.
Next, in addressing the asserted factual question raised by Defendant concerning the Special Master's measuring methodology, the Court finds that regardless of the methodology, the tables are non-compliant under the ADA. Defendants' asserted factual question can result in only two scenarios, neither of which raise a triable issue fact as to whether Defendants' tables are in compliance. First, if the Special Master correctly required the knee clearance to be centered on the table, then all of the tables in Exhibit 7 are out of compliance. Second, and alternatively, if the Special Master incorrectly permitted the knee clearance to be off-center-that is, that the 30-inch side-to-side width of the knee clearance could be anywhere along one side of the table-such methodology would permit a much larger area to be considered as part of the required width. Assuming, as Defendant contends, that the Special Master used this latter standard, and still found less than the 30-inch required knee clearance, then the tables in Exhibit 7 would still be out of compliance. As Plaintiffs point out, the only result of such a mistake would be that many of the tables at which the Special Master found compliant knee clearance-upon none of which Plaintiffs' rely in their motion-would in fact be out

of compliance. Therefore, because the seating positions in Exhibit 7 violate the DOJ Standards, they violate the ADA, and in turn, also violate the CDPA and Unruh. See, e.g., Arnold, 866 F.Supp. at 439.
B. Exhibit 8-CPDA
*22 The fixed seating listed in Exhibit 8 are statistics taken from restaurants built after 1981. For facilities built in that time frame, Plaintiffs rely on violations of Title 24 as a predicate for liability under the CDPA. Title 24 has required, since 1981, that “[e]ach dining, banquet and bar area shall have one wheelchair seating space for each twenty seats .... “ Title 24-1981 § 2-611(c)(3); see also Title 24-1984 § 2-611(d)(3); Title 24-1987 § 2-611(d)(3); Title 24-1989 § 611(d)(3); Title 24-1994 § 3103A(b)4C; Title 24-1999 § 1104B.5.4; Title 24-2001 § 1104B.5.4. The restaurants listed in Exhibit 8 do not have a minimum of one wheelchair seating space for each twenty seats-regardless of whether fixed or moveable-and are thus in violation of Title 24 and the CDPA. See, e.g., Arnold, 158 F.R.D. at 447.
Because there are no triable issues of material fact regarding the number of fixed seating positions, the Court GRANTS Plaintiffs' motion for partial summary judgment as to the number of seating positions for those restaurants listed in Exhibits 6, 7, and 8.
CONCLUSION

For the foregoing reasons the Court:
DENIES Plaintiffs' motion for partial summary judgment as to the queue lines and auxiliary access lanes set forth in Exhibits 1 and 2;
GRANTS Plaintiffs' motion for partial summary judgment as to the interior door force for those restaurants listed in Exhibit 3 and 4;
DENIES Plaintiffs' motion for partial summary judgment as to the exterior door force for those restaurants listed in Exhibit 5 that were constructed before April 1, 1994;
GRANTS Plaintiffs' motion for partial summary judgment as to the exterior door force for those restaurants listed in Exhibit 5 that were constructed after April 1, 1994.
GRANTS Plaintiffs' motion for partial summary judgment as to the number of seating positions for those restaurants listed in Exhibits 6, 7, and 8.
THE COURT FURTHER ORDERS that this case is scheduled for a Status Conference on September 18, 2007 at 2:00 p.m. A Joint Status Conference Statement is due 7 days prior to the conference.
IT IS SO ORDERED.

 
 United States District Court, N.D. California.
Francie E. MOELLER, Plaintiff, v.
TACO BELL CORPORATION, et al., Defendants. No. C 02-5849 PJH (JL).
Dec. 11, 2008.
Timothy P. Fox, Amy F. Robertson, Ari Reuben Krichiver, Fox & Robertson, P.C., Denver, CO, Antonio Michael Lawson, Lawson Law Offices, Oakland, CA, Brad Seligman, Jocelyn Dion Larkin, Impact Fund, Mari Mayeda, Attorney at Law, Berkeley, CA, for Plaintiff.
Gregory F. Hurley, Richard Hidehito Hikida, Esq., Greenberg Traurig LLP, Irvine, CA, Thomas P. Howard, Louisville, CO, for Defendants.
Bob Evans, San Marcos, CA, pro se.

updating the Court on the new parameters of the motion. The Court heard argument and issued an order at Docket # 387, denying Plaintiffs' motion without prejudice pending a decision by the district court on dispositive motions. The motion was terminated from the court docket.
Plaintiffs immediately wrote a letter asking the Court to rule on their motion without waiting for the district court's ruling. The letter was stricken by court order at Docket # 391. The Court ruled that the dispute was not appropriate for resolution on letter briefs or by other expedited means and ordered the parties to file a formal noticed motion or motions. (Order e-filed at Docket # 391 at 1:19-21).
Plaintiffs filed a formal noticed motion at Docket # 392, but on a new topic: contention interrogatories. The matter was set for hearing, the Court heard argument and issued an order at Docket # 402 granting Plaintiffs' motion.
The district court then heard and decided Defendant's motion for partial summary judgment, denying it by an order e-filed at Docket # 416.

ORDER

Relief Sought

JAMES LARSON, United States Chief Magistrate Judge.
Introduction
*1 The Court received the parties' Joint Statement, e-filed December 4, 2008 at Docket # 418: “Re: Plaintiffs' February 15, 2008 Motion to Compel.” All discovery has been referred by the district court (Hon. Phyllis J. Hamilton) pursuant to 28 U.S.C. § 636(b).
Procedural Background
The motion the parties refer to in their statement was e-filed at Docket # 361, when the case was assigned for trial to Hon. Martin J. Jenkins. The hearing was vacated by order of the district court and the case was reassigned for all purposes including trial to Hon. Phyllis J. Hamilton, who referred discovery to the magistrate judge. The discovery motion was re-noticed and set for hearing. The parties filed a Joint Statement of Issues at Docket # 373,

Plaintiffs ask this Court to rule on the merits of their February 15 motion, presumably because the district court has now ruled on Defendants' motion for partial summary judgment. Defendants oppose Plaintiffs' being permitted to renew their motion, and request an opportunity to update the Court:
If the Court is inclined to consider a renewed motion from plaintiffs, Taco Bell requests an opportunity to supplement its Memorandum of Points and Authorities in Support of Its Opposition to Plaintiffs' Motion to Compel (docket # 363) with declarations and supporting exhibits so that the current factual circumstances including the numerous recent site inspections conducted or to be conducted by plaintiffs' retained expert are made part of the record.
Joint Statement at Docket # 418, note 5.
Conclusion and Order

Plaintiffs are apparently ignoring this Court's previous order at Docket # 391, requiring a formal noticed motion, in order to renew their terminated motion formerly filed at Docket # 361. This order still stands. If Plaintiffs seek the Court's assistance with this discovery dispute, they must file a formal noticed motion. There have been changes in the case in the year since that initial filing-a new trial judge, a dispositive ruling, and extensive inspections and discovery, including other disputes. The factors which could decide the outcome of the motion are different now, as described by Defendants in their request to supplement their earlier briefing opposing Plaintiffs' motion. Any discovery dispute shall be presented to this Court, as ordered, in a formal noticed motion, on the normal briefing schedule.
*2 IT IS SO ORDERED.

 
 United States District Court, N.D. California.
Francie E. MOELLER, Plaintiff, v.
TACO BELL CORPORATION, et al., Defendants. No. C 02-5849 PJH (JL).
Sept. 22, 2009.
Timothy P. Fox, Amy F. Robertson, Ari Reuben Krichiver, Fox & Robertson, P.C., Denver, CO, Antonio Michael Lawson, Lawson Law Offices, Oakland, CA, Brad Seligman, Jocelyn Dion Larkin, Impact Fund, Mari Mayeda, Attorney at Law, Berkeley, CA, for Plaintiff.
Gregory F. Hurley, Richard Hidehito Hikida, Esq., Greenberg Traurig LLP, Irvine, CA, Thomas P. Howard, Louisville, CO, for Defendants.
ORDER RE Docket # 452

34(a)(2), Federal Rules of Civil Procedure. The Notice stated that Plaintiffs intended to enter the public areas of the restaurants at issue in this litigation “for the purposes of inspection, measurement, and photography” at times and locations unknown to Taco Bell in Advance, that these unannounced visits would “take place during business hours and ... be limited to areas open to the general public,” and that “Plaintiffs [w]ould do their utmost to ensure that these visits do not disrupt Taco Bell's business.” Plaintiffs argue that they need to have their experts conduct these visits unannounced because their surveys already conducted between September 2008 and April 2009 revealed “over 2,400 ongoing and new barriers.” Plaintiffs wish to continue to accumulate evidence to refute Defendants' defense against Plaintiffs' ADA causes of action on the basis of mootness, that the alleged barriers have been remedied. Plaintiffs argue that in 2007, Judge Jenkins, to whom this case was then assigned, rejected Defendants' mootness argument on the grounds that many of the elements in the restaurants “change frequently due to regular maintenance, remodels, repairs, and normal wear and tear.” Moeller v. Taco Bell Corp., 2007 WL 2301778 at *8 (N.D.Cal. Aug.8, 2007). Plaintiffs assert that this is the law of the case, but that Defendants persist in raising their mootness defense and intend to assert it in their October 20, 2009 dispositive motion.

JAMES LARSON, United States Magistrate Judge.
*1 All discovery in this case has been referred by the district court (Hon. Phyllis J. Hamilton) pursuant to 28 U.S.C. § 636(b). This Court received the parties' Joint Statement of Issues Re: Plaintiffs' Motion to Overrule Objections to Unannounced Surveys and Request for Expedited Consideration, e-filed at Docket # 452. The Court finds the matter suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b).

Plaintiffs served a previous Rule 34 notice, which they contend they did as a courtesy and to insure that Taco Bell employees would not object to or delay the inspections. That Notice provided that inspections would be completed before May 1, 2009. However, on May 29, 2009 Defendants requested and received a 90-day extension of the dispositive motion deadline in order to make additional alterations. Accordingly, Plaintiffs argue that the original agreement would not permit Plaintiffs to obtain needed relevant evidence, and is therefore void.

This is a suit for damages and injunctive relief brought under Title III of the American With Disabilities Act, 42 U.S.C. § 12181 et seq., and state law. The district court has bifurcated the case, proceeding first to decide the issue of whether Defendants are liable for violations of the ADA, and thereafter deciding Plaintiffs' other claims. The cut-off for expert discovery on the ADA claims was August 14, 2009.
On July 31, 2009, Plaintiffs served on Defendant Taco Bell Corp. a Notice of Entry on Land pursuant to Rule

*2 Plaintiffs cite a number of cases for the proposition that they are not required to notify Defendants of a Rule 34 site inspection or obtain their authorization. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n. 2 (9th Cir.2008), especially when the property at issue is open to the public.
Grabau v. Target Corp., 2008 WL 616068, at *3 (D.Colo. Feb.29, 2008).
Taco Bell objected to Plaintiffs' proposed site inspections on a number of grounds, disputing that their objection to the notice was late, arguing that Plaintiffs' notice was e-filed on July 31, 2009 and Defendants' objection was

timely served on September 3. Even though the proof of service lists lead counsel Fox's former address, defense counsel's assistant mailed the objection to his current address. There is no dispute that Plaintiffs' co-counsel received the objection at their respective current address.
Defendants also object that Plaintiffs missed the deadline to file a motion to compel based on their previous Rule 34 notice, served over a year ago, on July 31, 2008. Defendants argue that Plaintiffs therefore waived their right to move now to compel site inspections.
Finally, and this is the argument this Court finds most persuasive, the district court set the deadline for expert discovery, such as the site inspections which Plaintiffs seek for their experts in this Joint Statement, at August 14, 2009. This is the date by which all such discovery was to be completed. Furthermore, a motion to compel any discovery due by this deadline must have been filed on or before August 25, 2009, pursuant to Civil Local Rule 26-2. Plaintiffs do not say when they would have conducted their site inspections; perhaps they could all have been completed between July 31, when Plaintiffs issued their most recent Rule 34 Notice, and August 14, the cut-off for expert discovery. However, it is uncontroverted that Plaintiffs only filed their Joint Statement on September 15, well past the deadline for filing a motion to compel this discovery.
Accordingly, Plaintiffs' motion to compel Defendants to comply with Plaintiffs' Rule 34 Notice for unannounced site inspections of Taco Bell stores is denied.
IT IS SO ORDERED.

 
 1

2 UNITED STATES DISTRICT COURT
3 NORTHERN DISTRICT OF CALIFORNIA
4

5

6 FRANCIE E. MOELLER, et al.,

7

Plaintiffs,

No. C 02-5849 PJH

8

v.

ORDER

9 TACO BELL CORPORATION,

United States District Court For the Northern District of California

10

Defendant.

_______________________________/

11

12

Before the court is the motion of defendant Taco Bell Corporation (“Taco Bell”) for an

13 order decertifying the class, and the motion of the named plaintiffs for an order altering and

14 amending the class certification order. Having read the parties’ papers and carefully

15 considered their arguments and the relevant legal authority, the court hereby GRANTS

16 Taco Bell’s motion in part and DENIES it in part, and DENIES plaintiffs’ motion.1

17

BACKGROUND

18

This case was originally filed on December 17, 2002, as a proposed class action,

19 challenging architectural barriers at corporate-owned Taco Bell restaurants in California.

20 The complaint asserted a right to injunctive relief under the Americans With Disabilities Act

21 of 1990 (“ADA”), 42 U.S.C. § 12181, et seq., as well as a state law claim for damages

22 under the Unruh Act, Cal. Civ. Code § 51, et seq.

23

The original complaint alleged that the named plaintiffs were seeking “to maintain

24 this action as a class action under Rule 23(b)(2) and/or Rule 23(b)(3).” Cplt ¶ 20. The

25 complaint alleged further that “[m]oney damages alone are inadequate,” and that “the

26 primary relief sought is injunctive relief.” Cplt ¶¶ 4, 25.

27

28

1 As the motions are fully briefed, the court has heard numerous dispositive motions,

and a trial has occurred, the court determined that a further hearing was unnecessary.

United States District Court For the Northern District of California

1

On August 4, 2003, plaintiffs amended the complaint to plead an additional state law

2 claim for relief under the California Disabled Persons Act (“CDPA”), Cal. Civ. Code § 54, et

3 seq. In all other respects, the first amended complaint (“FAC”) is identical to the original

4 complaint, including that the named plaintiffs are seeking “to maintain this action as a class

5 action under Rule 23(b)(2) and/or Rule 23(b)(3),” and that “the primary relief sought is

6 injunctive relief.” FAC ¶¶ 20, 25.

7

In September 2003, plaintiffs filed a motion seeking certification of a class under

8 Federal Rule of Civil Procedure 23(b)(2). The proposed class consisted of

9

[a]ll individuals with disabilities who use wheelchairs or electric scooters for

mobility who, at any time on or after December 17, 2001, were denied, or are

10

currently being denied, on the basis of disability, full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or accommodations of

11

California Taco Bell.

12

The motion was granted on February 23, 2004. See Moeller v. Taco Bell Corp., 220

13 F.R.D. 604 (N.D. Cal. 2004). The order noted that “[t]he putative class seeks an injunction

14 ordering [d]efendant to adopt policies to ensure access for customers who use wheelchairs

15 and scooters, and to bring all of its facilties into compliance with [the ADA, the Unruh Act,

16 and the DCPA].” Id. at 605. The class was certified under Rule 23(b)(2) for injunctive relief

17 and minimum statutory damages under the Unruh Act and the CDPA. See id. at 608-14.

18 Plaintiffs did not seek certification of a Rule 23(b)(3) class, and the court did not address

19 any such alternative certification.

20

On October 4, 2004, the court appointed a Special Master, who surveyed the

21 approximately 220 restaurants at issue. The results of his surveys are in the court file.

22 See Docket Nos. 216 though 240. In February 2007, the plaintiffs moved for partial

23 summary judgment based on the Special Master’s measurements as to specified

24 architectural elements. On August 8, 2007, the court granted the motion in part and denied

25 it in part. See Moeller v. Taco Bell Corp., 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007).

26

The case was reassigned to the undersigned district judge in April 2008. In June

27 2011, the court conducted an exemplar trial concerning Restaurant 4518 in San Pablo,

28 California. On October 5, 2011, following the benchmark trial regarding Restaurant 4518,

2

United States District Court For the Northern District of California

1 the court issued Findings of Fact and Conclusions of Law (“Findings”), ruling that “plaintiffs

2 have established that classwide injunctive relief is warranted, with regard to maintaining

3 compliance, both as to Taco Bell 4518, and as to all corporate Taco Bell restaurants in

4 California.” Moeller v. Taco Bell Corp., 816 F.Supp. 2d 831, 868-69 (N.D. Cal. 2011).

5

Following the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S.

6 __, 131 S.Ct. 2541 (2011), Taco Bell filed the present motion seeking decertification of the

7 plaintiff class. Plaintiffs seek an order “altering and amending” the class certification order

8 to certify the claims for injunctive relief and the “issue” of liability for damages under Rule

9 23(b)(2), and to certify the “issue” of the amount of damages under Rule 23(b)(3).

10

DISCUSSION

11 A. Legal Standards

12

Federal trial courts have broad discretion to manage the conduct of litigation and to

13 structure trials in a manner that expedites the proceedings while achieving the core

14 purposes of a trial and protecting litigants' rights. Trial courts have “both the duty and the

15 broad authority to exercise control over a class action and to enter appropriate orders

16 governing the conduct of counsel and the parties.” Hoffmann-La Roche Inc. v. Sperling,

17 493 U.S. 165, 171 (1989).

18

“A district court's order respecting class certification is ‘inherently tentative’ prior to

19 final judgment on the merits.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 633

20 (9th Cir. 1982). Thus, an order granting class certification may be altered or amended at

21 any time before final judgment. Fed. R. Civ. P. 23(c)(1)(C); see also General Tel. Co. of

22 SW v. Falcon, 457 U.S. 147, 160 (1982) (“Even after a certification order is entered, the

23 judge remains free to modify it in light of subsequent developments in the litigation.”). In

24 addition, “[w]hen appropriate, an action may be brought or maintained as a class action

25 with respect to certain issues.” Fed. R. Civ. P. 23(c)(4).

26

The court may decertify a class if the requirements for class certification under

27 Federal Rule of Civil Procedure 23 are not met. See General Tel. Co. of SW v. Falcon, 457

28 U.S. 147, 160 (1982); Gonzales v. Arrow Fin. Servs., 489 F. Supp. 2d 1140, 1153 (S.D.

3

United States District Court For the Northern District of California

1 Cal. 2007); O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 410 (C.D. Cal. 2000). The

2 decision on whether to decertify lies within the court's sound discretion. Knight v. Kenai

3 Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9th Cir. 1997).

4

A party seeking decertification of a class bears the burden of demonstrating that

5 class certification is no longer proper. Weigele v. Fedex Ground Package Sys., 267 F.R.D.

6 614, 617 (S.D. Cal. 2010). However, in order to maintain – or alter or amend – certification,

7 the party advocating certification bears the burden of demonstrating that the requirements

8 of Rule 23(a) and (b) are met. See Marlo v. UPS, 639 F.3d 942, 947 (9th Cir. 2011).

9

Rule 23(a) has four requirements, all of which must be met – numerosity,

10 commonality, typicality, adequacy of representation. Fed. R. Civ. P. 23(a). A party seeking

11 class certification must also meet one of the three criteria listed in Rule 23(b), which

12 provides that a party may maintain a class action if

13

(1) the prosecution of separate actions by or against individual members of

the class would create a risk of

14

(A) inconsistent or varying adjudications with respect to individual members of

15

the class which would establish incompatible standards of conduct for the

party opposing the class, or

16

(B) adjudications with respect to individual members of the class which would

17

as a practical matter be dispositive of the interests of the other members not

parties to the adjudications or substantially impair or impede their ability to

18

protect their interests; or

19

(2) the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final injunctive

20

relief or corresponding declaratory relief with respect to the class as a whole;

or

21

(3) the court finds that the questions of law or fact common to the members of

22

the class predominate over any questions affecting only individual members,

and that a class action is superior to other available methods for the fair and

23

efficient adjudication of the controversy.

24 Fed. R. Civ. P. 23(b).

25

In addition, under Rule 23(c)(4), “[w]hen appropriate, an action may be brought or

26 maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4)(A).

27 B. The Parties’ Motions

28

Taco Bell seeks decertification of the entire class. First, Taco Bell contends that

4

United States District Court For the Northern District of California

1 plaintiffs’ monetary claims were improperly certified because, as the Supreme Court

2 clarified in Dukes, individualized monetary relief is not available to a Rule 23(b)(2) class,

3 and also because injunctive and declaratory relief cannot be applied to the class as a

4 whole.

5

Taco Bell also asserts that the class does not meet the Rule 23(a) commonality

6 requirement, as re-defined by the Supreme Court in Dukes, and also does not meet the

7 typicality or adequacy requirements. Finally, Taco Bell contends that to the extent that

8 plaintiffs will argue that the class definition should be modified to include a Rule 23(b)(3)

9 class, the damages claims are not amenable to class treatment under Rule 23(b)(3)

10

Plaintiffs seek an order “altering and amending” the class certification order so that

11 the class claims seeking injunctive relief, and the “issue” of liability for “minimum statutory

12 damages” can be certified under Rule 23(b)(2), and the “issue” of the amount of damages

13 to be actually recovered by each class member as to five “Key Barriers” can be certified

14 under Rule 23(b)(3). To this end, plaintiffs propose a redefined class consisting of

15

All individuals with disabilities who use wheelchairs or electric scooters for

16

mobility who, at any time on or after December 17, 2001, were denied, or are

currently being denied, on the basis of disability, full and equal enjoyment of

17

the goods, services, facilities, privileges, advantages, or accommodations of

California Taco Bell corporate restaurants based on any one of the following

18

non-compliant barriers: access aisles at van accessible parking; entry or

restroom door force; number or dimensions of accessible seating positions;

19

queue line; height of restroom amenities.

20

The court agrees that the Supreme Court’s decision in Dukes mandates

21 decertification of the damages portion of the class as certified. Rule 23(b)(2) “does not

22 authorize class certification when each class member would be entitled to an individualized

23 award of monetary damages.” Dukes, 131 S.Ct. at 2557. Here, it is undisputed that the

24 monetary relief sought by plaintiffs under state law in this action is individualized, as it is

25 based on denial of access as to each class member, with damages to be awarded “per

26 occasion.” Under Dukes, no claim for individualized relief may be combined with a class

27 injunction under Rule 23(b)(2). See id. at 2557-58.

28

With regard to injunctive relief, however, the court agrees with plaintiffs that the

5

United States District Court For the Northern District of California

1 class meets the requirements of Rule 23(a). In particular, the court finds, as set forth in the

2 February 23, 2004 class certification order, and also supported by the August 8, 2007

3 summary judgment order and the October 5, 2011 Findings, that there are sufficient

4 “questions of law or fact common to the class” to warrant certifying a class for injunctive

5 relief. Given the narrow scope of the court’s prior ruling regarding entitlement to injunctive

6 relief, see Moeller v. Taco Bell, 816 F.Supp. 2d at 868-69, the claims are sufficiently

7 common to satisfy Rule 23(a)(2). The court also finds, as set forth in the class certification

8 order, that plaintiffs have satisfied the typicality and adequacy-of-representation

9 requirements of Rule 23(a)(3) and (4).

10

The primary dispute raised by the present motions is whether plaintiffs’ state law

11 damages claims can be certified. Plaintiffs’ state law claims under the Unruh Act and the

12 CDPA seek individualized relief or an individualized award of money damages. As noted

13 above, certification is not proper under Rule 23(b)(2), because damages must be

14 determined on an individualized basis. See Dukes, 131 S.Ct. at 2557 (claims for

15 individualized relief do not satisfy the requirements of Rule 23(b)(2)).

16

The state law claims also cannot be certified under Rule 23(b)(3) – both because the

17 claims are individualized and unique, and questions of law and fact common to the

18 members of the class do not predominate over questions affecting only individual

19 members, and because a class action would not be superior to other available methods of

20 adjudication, in view of the problems in managing such a class.

21

Plaintiffs impliedly concede that certification is not proper under either Rule 23(b)(2)

22 or Rule 23(b)(3), and propose instead a “hybrid” certification. Plaintiffs argue that the court

23 should certify “issues” under Rule 23(c)(4) – specifically, that the court should certify the

24 issue of liability under Rule 23(b)(2) and should certify the issue of damages under Rule

25 23(b)(3).

26

The court finds, however, that the issue of classwide liability cannot be separately

27 certified under Rule 23(b)(2) through the application of the Rule 23(c)(4) issue-certification

28 procedure. California courts have held that to maintain an action under the CDPA, a

6

United States District Court For the Northern District of California

1 plaintiff must establish that he or she was denied equal access to a public facility on a

2 particular occasion. See Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 183 (1990);

3 see also Raycraft v. Lee, 177 Cal. App. 4th 1211, 1223 (2009); Urhausen v. Longs Drug

4 Stores California Inc., 155 Cal. App. 4th 254, 263-66 (2007); Boemio v. Love’s Rest. 954 F.

5 Supp. 204, 207-08 (S.D. Cal. 1997).2 Thus, the issue of liability for damages cannot be

6 determined on “grounds generally applicable to the class.” Fed. R. Civ. P. 23(b)(2).

7

Similarly the issue of classwide damages cannot be separately certified under Rule

8 23(b)(3) through the application of Rule 23(c)(4), because damages for California disability

9 claims are inextricably intertwined with individualized liability questions, and it is thus

10 impossible to make an across-the-board conclusion as to the recovery of damages by any

11 class member. An individual class member’s claim for damages cannot be adjudicated

12 simply by demonstrating the mere presence of an alleged non-compliant feature.3 Each

13 class member must show how he or she was personally affected and was denied full and

14 equal access by the defendant. See, e.g., Urhausen, 155 Cal. App. 4th at 266.

15

Put another way, because damages must be based on an individualized

16 determination of liability, common questions of law and fact regarding entitlement to

17 damages do not predominate over questions affecting only individual members. It is not

18 only damages that are individualized, but also liability and causation, because the issue is

19 whether an individual class member has any claim at all. See Pryor v. Aerotek Scientific,

20 LLC, 278 F.R.D. 516, 532-33 (C.D. Cal. 2011). Such fact-specific individual liability and

21 damages questions cannot be determined on a classwide basis. Rodriguez v. Gates, 2002

22 WL 1162675 at *11 (C.D. Cal. May 30, 2002); see also Dunbar v. Albertson’s, Inc., 141

23 Cal. App. 4th 1422, 1427 (2006).

24

25

2 The court effectively acknowledged this fact in the summary judgment order, when it stated that “[i]t is true that to be entitled to monetary damages the class members must

26

demonstrate a denial of ‘equal access.’” Moeller v. Taco Bell Corp., 2007 WL 2301778 at *16 (citing Donald, 218 Cal. App. 3d at 183).

27

3 As only one named plaintiff testified at the trial of the exemplar store, the Findings for

28

the most part chronicle the non-compliant features rather than examining how individual plaintiffs were personally affected by such non-compliant features.

7

United States District Court For the Northern District of California

1

Plaintiffs contend that the calculation of damages will be a simple matter of adding

2 up the number of times each class member was aggrieved by noncompliant barriers. The

3 court notes, however, that while the class has been found to be sufficiently numerous and

4 ascertainable, plaintiffs have actually made no showing as to how many people are in the

5 class. At one point, plaintiffs estimated (based on statistics regarding the number of people

6 in California who use wheelchairs or scooters) that the class could include as many as

7 150,000 class members. See 220 F.R.D. at 608. Presumably this does not include the

8 people in wheelchairs who live in other states, but may have stopped at a Taco Bell while

9 traveling through California.

10

At a minimum, however, it appears that more than 1000 class members have

11 contacted plaintiffs’ counsel about the case, after having read the “Taco Bell Class Action

12 Website” that is sponsored by class counsel. The website states that “[t]he class is seeking

13 up to $4,000 for each time a class member encountered a barrier at a covered Taco Bell[,]”

14 adding that “a class member may be entitled to collect damages for each time he or she

15 had difficulty parking, had difficulty getting to the counter because of a narrow queue line,

16 had difficulty using the restroom because it was too small or obstructed, or encountered

17 other barriers.”

18

Thus, because of the intersection between liability for separate violations and the

19 damages calculation, there would need to be a finding – for each class member in this

20 potentially huge class – regarding which Taco Bell store or stores he/she visited, how many

21 times he/she visited each store, when the visits occurred, what “Key Barriers” he/she

22 encountered, and what his/her disability was and whether the “Key Barrier” precluded

23 access for him/her at that particular Taco Bell. Based on this, the court finds – even apart

24 from the fact that the liability and damages issues are inextricably intertwined – that

25 certifying a (b)(3) class for the issue of damages would not constitute a superior method for

26 adjudicating the controversy.

27

It is true that “there is no rule against ‘hybrid certification’ under both Rule 23(b)(2)

28 and 23(b)(3).” Beck v. The Boeing Company, 60 Fed. Appx. 38, 39, 2003 WL 683797 at *1

8

United States District Court For the Northern District of California

1 (9th Cir. Feb. 25, 2003). Rule 23(c)(4) recognizes that it may be appropriate to achieve the

2 fairness and efficiencies of class-wide adjudication as to one or more issues that are

3 common to all class members, even if other issues are litigated separately by individual

4 class members. Nevertheless, “issue certification should never be undertaken lightly, or

5 used to ‘fix’ manifest Rule 23(b)(3) predominance problems presented where key issues

6 going to liability require individualized proof.” McLaughlin on Class Actions (2011) § 4:43.

7

CONCLUSION

8

In accordance with the foregoing, Taco Bell’s motion is GRANTED in part and

9 DENIED in part. The motion to decertify the claims for injunctive relief is DENIED. The

10 motion to decertify the damages claims is GRANTED. Plaintiffs’ motion is DENIED.

11

With regard to the form of the injunction, it is unclear, with this latest round of

12 briefing, whether plaintiffs are seeking injunctive relief as to all barriers or as to the five

13 “Key Barriers” only. Thus, no later than August 31, 2012, each side shall submit a

14 proposed injunction with respect to the Rule (b)(2) class.

15

The named plaintiffs are entitled to a trial as to damages under state law. No later

16 than August 31, 2012, the parties shall submit a proposed status statement regarding

17 discovery, if any; scheduling; the length of the proposed trial; and whether the damages

18 claims are to be tried to a jury. Depending on the number of days requested, the court will

19 advise the parties as to available dates.

20

Any of the unnamed plaintiffs who wish to proceed with damages claims may file a

21 separate lawsuit.

22

23 IT IS SO ORDERED.

24 Dated: July 26, 2012 25 26

______________________________ PHYLLIS J. HAMILTON United States District Judge

27

28

9

 
 Case 4:02-cv-05849-PJH Document 753 Filed 11/21/13 Page 1 of 17

1 CIVIL RIGHTS EDUCATION AND

Mari Mayeda, Cal. Bar No. 110947

ENFORCEMENT CENTER

PO Box 5138

2 Timothy P. Fox, Cal. Bar No. 157750

Berkeley, CA 94705

Amy F. Robertson, Pro Hac Vice

Tel: (510) 917-1622

3 104 Broadway, Suite 400

Fax: (510) 841-8115

Denver, CO 80203

Email: marimayeda@earthlink.net

4 Tel: (303) 757-7901

Email: tfox@creeclaw.org

5

LAWSON LAW OFFICES

THE IMPACT FUND

6 Antonio M. Lawson, Cal. Bar No. 140823

Jocelyn Larkin, Cal. Bar No. 110817

6146 Mazuela Dr.

125 University Ave.

7 Oakland, CA 94611

Berkeley, CA 94710

Tel: (510) 418-2656

Tel: (510) 845-3473

8 Email: tony@lawsonlawoffices.com

Fax: (510) 845-3654

Email: jlarkin@impactfund.org

9

Attorneys for Plaintiffs

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

12

FRANCIE E. MOELLER et al.,

Case No. C 02 5849 PJH (NC)

13

Plaintiffs,

SECOND AMENDED CLASS ACTION

14

COMPLAINT

v.

15 TACO BELL CORP.,
16

The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor

17

Defendant.

18

19

Plaintiffs Francie Moeller, Edward Muegge, Katherine Corbett and Craig Thomas Yates,

20 by and through their attorneys, hereby submit their Second Amended Class Action Complaint

21 for violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.,

22 (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq. (“the Unruh Act”), and the

23 California Disabled Persons Act, Cal. Civ. Code, § 54, et seq. (the “CDPA”).

24

INTRODUCTION

25

1. Over twenty years after Congress passed one of our nation’s landmark civil

26 rights law for people with disabilities, Defendant’s restaurants in California still maintain barriers

27 that prevent customers who use wheelchairs or scooters from the full, independent and equal

28 enjoyment of Defendant’s goods and services.

Case 4:02-cv-05849-PJH Document 753 Filed 11/21/13 Page 2 of 17

1

2. Defendant has been and is in violation of federal and state disability civil rights

2 laws, in that it has failed to comply with federal and state nondiscrimination statutes.

3

3. Defendant has discriminated and continues to discriminate against Plaintiffs in

4 many ways, including but not limited to failing to ensure that its restaurants are accessible to

5 individuals with mobility impairments who require wheelchairs or scooters for mobility.

6

JURISDICTION AND VENUE

7

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

8 §§ 1331 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims brought

9 under the laws of the State of California. The Court may grant declaratory and other relief

10 pursuant to 28 U.S.C. §§ 2201 and 2202. Money damages alone are inadequate, and Plaintiffs

11 have been suffering and will continue to suffer irreparable injury.

12

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

13

INTRADISTRICT ASSIGNMENT

14

6. This action arises in the county of Sonoma, Contra Costa and/or Marin and thus

15 should be assigned to the San Francisco or Oakland Division.

16

PARTIES

17

7. Plaintiff Francie E. Moeller is and has been at all times material hereto a resident

18 of the State of California.

19

8. Ms. Moeller has a degenerative disc, spondothesis, fibromyalgia, and functional

20 thoracic outlet syndrome, which affect her muscles and tissue. Ms. Moeller has physical

21 impairments that substantially limit several major life activities, including but not limited to

22 walking. She has a record of physical impairments that substantially limit several major life

23 activities and is regarded as having physical impairments that substantially limit several major

24 life activities. Ms. Moeller uses a scooter for her primary means of mobility outside of her home

25 and has a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

26

9. Ms. Moeller has a physical disability and/or medical condition as those terms are

27 defined in applicable California law, including Cal. Gov’t Code § 12926.

28

Case No. C 02 05849 PJH (NC) Second Amended Class Action Complaint

Page 2

Case 4:02-cv-05849-PJH Document 753 Filed 11/21/13 Page 3 of 17

1

10. Plaintiff Katherine J. Corbett is and has been at all times material hereto a

2 resident of the State of California.

3

11. Ms. Corbett has post polio syndrome. Ms. Corbett has physical impairments that

4 substantially limit several major life activities, including but not limited to walking. She has a

5 record of physical impairments that substantially limit several major life activities and is

6 regarded as having physical impairments that substantially limit several major life activities. Ms.

7 Corbett uses a power wheelchair for her primary means of mobility outside of her home and has

8 a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(A).

9

12. Ms. Corbett has a physical disability and/or medical condition as those terms are

10 defined in applicable California law, including Cal. Gov’t Code § 12926.

11

13. Plaintiff Edward Muegge was a resident of the State of California from 1954 to

12 2003; since 2003, he has resided in the state of Hawaii, but returns often to California for

13 medical care and to visit friends.

14

14. As a result of a spinal cord injury, Mr. Muegge has physical impairments that

15 substantially limit several major life activities, including but not limited to walking. He has a

16 record of physical impairments that substantially limit several major life activities and is

17 regarded as having physical impairments that substantially limit several major life activities. Mr.

18 Muegge uses a power scooter for his primary means of mobility and has a disability within the

19 meaning of the ADA. 42 U.S.C. § 12102(2)(A).

20

15. Mr. Muegge has a physical disability and/or medical condition as those terms are

21 defined in applicable California law, including Cal. Gov’t Code § 12926.

22

16. Plaintiff Craig Thomas Yates is and has been at all times material hereto a

23 resident of the State of California.

24

17. As a result of a spinal cord injury, Mr. Yates has physical impairments that

25 substantially limit several major life activities, including but not limited to walking. He has a

26 record of physical impairments that substantially limit several major life activities and is

27 regarded as having physical impairments that substantially limit several major life activities. Mr.

28

Case No. C 02 05849 PJH (NC) Second Amended Class Action Complaint

Page 3

Case 4:02-cv-05849-PJH Document 753 Filed 11/21/13 Page 4 of 17

1 Yates uses a power wheelchair for his primary means of mobility and has a disability within the

2 meaning of the ADA. 42 U.S.C. § 12102(2)(A).

3

18. Mr. Yates has a physical disability and/or medical condition as those terms are

4 defined in applicable California law, including Cal. Gov’t Code § 12926.

5

19. Defendant Taco Bell Corp. (“TBC”) is a corporation incorporated under the

6 laws of California, with its principal place of business at 1 Glen Bell Way, Irvine, CA 92618.

7 TBC owns, operates, leases and/or leases to Taco Bell restaurants in California, including

8 combination restaurants in which Taco Bell products and products of other restaurants (for

9 example, Kentucky Fried Chicken) are sold.

10

CLASS ACTION ALLEGATIONS

11

20. Plaintiffs Moeller, Muegge, Yates, and Corbett seek to maintain this action under

12 Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class consists of all individuals with

13 disabilities who use wheelchairs or electric scooters for mobility who, during a time period to be

14 determined by this Court, were denied, or are currently being denied, on the basis of disability,

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

16 accommodations of any Taco Bell restaurant in California that was designed or constructed by,

17 or is owned, operated, leased by, or leased to, Defendant.

18

21. The class identified in paragraph 20 is believed to consist of well over 1,000

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

20 in this lawsuit is impracticable.

21

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

22 without limitation, the following:

23

a. Whether Taco Bell restaurants in California are “public accommodations”

24

under the ADA;

25

b. Whether Taco Bell restaurants in California are “business establishments”

26

under the Unruh Act;

27

28

Case No. C 02 05849 PJH (NC) Second Amended Class Action Complaint

Page 4

Case 4:02-cv-05849-PJH Document 753 Filed 11/21/13 Page 5 of 17

1

c. Whether Taco Bell restaurants in California are “places of public

2

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

3

the CDPA;

4

d. Whether Taco Bell restaurants in California deny the full and equal

5

enjoyment of their goods, services, facilities, privileges, advantages, or

6

accommodations to people who use wheelchairs in violation of the ADA;

7

e. Whether Taco Bell restaurants in California deny full and equal

8

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

9

who use wheelchairs, in violation of the Unruh Act;

10

f. Whether Taco Bell restaurants in California deny full and equal access to

11

accommodations, advantages and facilities to people who use

12

wheelchairs, in violation of the CDPA;

13

g. What measures are legally required to bring Taco Bell restaurants in

14

California into compliance with the ADA, the Unruh Act and the CDPA;

15

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

16

Taco Bell restaurants -- violate state or federal law.

17

23. The claims of Plaintiffs Moeller, Muegge, Yates and Corbett are typical of the

18 claims of the members of the class. They -- like all other members of the class -- use a

19 wheelchair or scooter for mobility and claim Defendant has violated the ADA, the Unruh Act

20 and the CDPA by failing to make its Taco Bell restaurants accessible to people who use

21 wheelchairs.

22

24. Plaintiffs Moeller, Muegge, Yates, and Corbett will fairly and adequately protect

23 the interests of the class because they have retained counsel with extensive experience in

24 litigation, including class action litigation. In addition, Plaintiffs’ counsel, Timothy Fox and

25 Amy Robertson, were class counsel in a Colorado class action under the ADA concerning Taco

26 Bell restaurants. Finally, Plaintiffs Moeller, Muegge, Yates and Corbett have no interests that

27 conflict in any way with those of the class.

28

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1

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

2 because the Defendant’s violations of the ADA, the Unruh Act and the CDPA are applicable to

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

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

5

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

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

7 by the filing of numerous similar suits by disabled people in the region. There are no obstacles

8 to effective and efficient management of this lawsuit as a class action by this Court.

9

STATEMENT OF FACTS

10

27. This Second Amended Complaint is being filed over ten years into this litigation.

11 As such, Defendant has been on notice of the allegations below and many others for many years

12 Francie Moeller

13

28. Plaintiff Moeller has patronized the following Taco Bell Corporate restaurants

14 and encountered the following barriers:

15

a.

Restaurant 2968, on Stony Point Road in Santa Rosa:

16

i. The access aisle at the accessible parking space was too narrow

17

making it difficult for Ms. Moeller to park her van and use the

18

aisle (Moeller 2003 Dep. 73:21 - 74:4);

19

ii. The queue line was too narrow, making it difficult or impossible

20

for Ms. Moeller to access the service counter (id. 75:21-24);

21

iii. There was insufficient accessible seating and insufficient space

22

between tables, making it difficult for Ms. Moeller to dine in the

23

restaurant, especially when dining with other friends who use

24

wheelchairs (id. 77:4-14); and

25

iv. Drinks and condiments were placed out of range for Ms. Moeller

26

to reach from her wheelchair (id. 81:8-9).

27

v. Ms. Moeller is seeking minimum statutory damages for five visits

28

to this restaurant that occurred between December 2001 and June

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1

2003, and for one visit that occurred in 2010 or 2011 but prior to

2

November 3, 2011.

3

b. Restaurant 3948, on Farmer’s Lane in Santa Rosa:

4

i. The entry door was too heavy, making it difficult for Ms. Moeller

5

to open the door from her wheelchair (id. 20:17-24);

6

ii. The queue line was too narrow, making it difficult or impossible

7

for Ms. Moeller to access the service counter (id. 20:19, 23:15-

8

25);

9

iii. There was insufficient clear floor space at the drink machine,

10

making it difficult for Ms. Moeller to access drinks and

11

condiments (id. 39:17 - 40:15); and

12

iv. There was insufficient accessible seating and insufficient space

13

between tables, making it difficult for Ms. Moeller to dine in the

14

restaurant, especially when dining with other friends who use

15

wheelchairs (id. 35:21 - 36:8).

16

v. Ms. Moeller is seeking minimum statutory damages for four visits

17

to this restaurant that occurred between December 2001 and June

18

2003, and 42 visits that occurred between June 2003 and

19

approximately 2008.

20

c. Restaurant 4211 on Mendocino Avenue in Santa Rosa:

21

i. The access aisle at the accessible parking space was too narrow

22

making it difficult for Ms. Moeller to park her van and use the

23

aisle (id. 48:1-16);

24

ii. The entry door was too heavy, making it difficult for Ms. Moeller

25

to open the door from her wheelchair (id. 67:23 - 68:1); and

26

iii. Drinks and condiments were placed out of range for Ms. Moeller

27

to reach from her wheelchair (id. 60:13 - 61:2, 62:22-25).

28

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1

iv. Ms. Moeller is seeking minimum statutory damages for 6 visits

2

from Dec. 2001 to June 2003, and for 1 visit in approximately

3

2007.

4 Katherine Corbett

5

29. Plaintiff Corbett has patronized the following Taco Bell Corporate restaurants

6 and encountered the following barriers:

7

a. Restaurant 4518 in San Pablo Towne Center in San Pablo:

8

i. The access aisle at the accessible parking space was too narrow,

9

making it difficult for Ms. Corbett to park her van and use the

10

aisle (Findings of Fact and Conclusions of Law (“FFCL”), ECF

11

642, at 4);

12

ii. The entry door was too heavy, making it difficult for Ms. Corbett

13

to open the door from her wheelchair (id.);

14

iii. The queue line was too narrow, making it difficult or impossible

15

for Ms. Corbett to access the service counter (id.);

16

iv. Drinks lids and straws were placed out of range for Ms. Corbett

17

to reach from her wheelchair (id. at 5);

18

v. The accessible seating had insufficient knee clearance making it

19

difficult for Ms. Corbett to sit at the table in her wheelchair (id.);

20

vi. The water closet in the women’s restroom was too low, making it

21

difficult for Ms. Corbett to transfer from her wheelchair (id.);

22

vii. The pipes under the lavatory were not insulated, putting Ms.

23

Corbett at risk for scalding and forcing her to use only cold water

24

to wash her hands (id.); and

25

viii. A loose trash can in the women’s restroom obstructed Ms.

26

Corbett’s access (id.).

27

28

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1

ix. Ms. Corbett is seeking minimum statutory damages for five visits

2

to this restaurant that occurred from 2002 until 2007, including a

3

visit that occurred on Oct. 30, 2002.

4

b. Restaurant 4558 on Redwood Drive in Rohnert Park:

5

i. The queue line was too narrow, making it difficult or impossible

6

for Ms. Corbett to access the service counter (Corbett 2003 Dep.

7

75:22);

8

ii. There was insufficient interior accessible seating, making it

9

difficult for Ms. Corbett to find seating to dine in the restaurant

10

(id. 85:5 - 86:13);

11

iii. There was no exterior accessible seating, making it impossible for

12

Ms. Corbett to dine in the outdoor seating area (id. 88:13-24);

13

and

14

iv. The toilet seat cover dispenser was not reachable from Ms.

15

Corbett’s wheelchair (id. 87:1-3, 87:21 - 88:7).

16

v. Ms. Corbett is seeking minimum statutory damages for one visit

17

to this restaurant that occurred on June 26, 2003.

18 Ed Muegge

19

30. Plaintiff Muegge has patronized the following Taco Bell Corporate restaurants

20 and encountered the following barriers:

21

a. Restaurant 3948 on Farmer’s Lane in Santa Rosa:

22

i. The queue line was too narrow, making it difficult or impossible

23

for Mr. Muegge to access the service counter (Muegge 2003

24

Dep. 109:2-4);

25

ii. The men’s restroom door was too heavy, making it difficult for

26

Mr. Muegge to open the door from his wheelchair (id. 111:13-

27

15); and

28

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1

iii. The pipes under the lavatory in the men’s restroom were not

2

insulated, putting Mr. Muegge at risk for scalding (id. 110:23 -

3

111:7).

4

iv. Mr. Muegge is seeking minimum statutory damages for visits to

5

this restaurant that occurred on the following dates: June 21,

6

2002, and Nov. 21, 2002.

7

b. Restaurant 4211 on Mendocino Avenue in Santa Rosa:

8

i. The maneuvering clearance at the men’s restroom door was

9

insufficient, causing Mr. Muegge difficulty in getting into the

10

restroom (Muegge 2011 Dep. 48:12 - 49:4).

11

ii. Mr. Muegge is seeking minimum statutory damages for visits to

12

this restaurant that occurred on the following dates: Unknown

13

day in June 2002; Apr. 22, 2005; July 1, 2010; Jan. 14, 2011 and

14

Oct. 29, 2011.

15

c. Restaurant 4558 on Redwood Drive in Rohnert Park:

16

i. The entry door was too heavy, making it difficult for Mr. Muegge

17

to open the door from his wheelchair (Muegge 2003 Dep. 82:17 -

18

18:8);

19

ii. The queue line was too narrow, making it difficult or impossible

20

for Mr. Muegge to access the service counter (id. 83:9-16);

21

iii. There was insufficient interior accessible seating, and the seating

22

provided had insufficient knee clearance, making it difficult for

23

Mr. Muegge to find seating to dine in the restaurant (id. 89:2-19);

24

and

25

iv. Condiments were placed out of range for Mr. Muegge to reach

26

from his wheelchair (id. 92:4-8).

27

28

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1

v. Mr. Muegge is seeking minimum statutory damages for four visits

2

to this restaurant that occurred between December 2001 and July

3

2003, including visits on Nov. 24 and Dec. 1, 2002.

4

d. Restaurant 4799 on East Cotati Avenue in Rohnert Park:

5

i. The access aisle at the accessible parking space was too narrow,

6

making it difficult for Mr. Muegge to park his van and use the

7

aisle (Muegge 2003 Dep. 97:25 - 98:18); and

8

ii. The queue line was too narrow, making it difficult or impossible

9

for Mr. Muegge to access the service counter (id. 99:12-17).

10

iii. Mr. Muegge is seeking minimum statutory damages for a visit to

11

this restaurant that occurred on December 2, 2002, and a visit

12

that occurred in approximately April 2003.

13

e. Restaurant 18112 on Santa Rosa Avenue in Santa Rosa:

14

i. The queue line was too narrow, making it difficult or impossible

15

for Mr. Muegge to access the service counter (id. 114:1-3);

16

ii. Condiments were placed out of range for Mr. Muegge to reach

17

from his wheelchair (id. 114:16 - 115:1); and

18

iii. The accessible seating had insufficient knee clearance making it

19

difficult for Mr. Muegge to sit at the table in his wheelchair (id.

20

115:10-19).

21

iv. Mr. Muegge is seeking minimum statutory damages for two visits

22

to this restaurant that occurred between December 2001 and July

23

2003.

24 Craig Yates

25

31. Plaintiff Yates has patronized the following Taco Bell Corporate restaurants and

26 encountered the following barriers:

27

a. Restaurant 4518 in San Pablo Towne Center in San Pablo: The men’s

28

restroom door was too heavy, making it difficult for Mr. Yates to open

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1

the door from his wheelchair (Yates 2011 Dep. 53:7-8). Mr. Yates is

2

seeking minimum statutory damages for one visit to this restaurant that

3

occurred on October 14, 2010.

4

b. Restaurant 4951 on Rowland Boulevard in Novato:

5

i. The queue line was too narrow, making it difficult or impossible

6

for Mr. Yates to access the service counter (Yates 2003 Dep.

7

27:16 - 28:20); and

8

ii. The accessible seating had insufficient knee clearance making it

9

difficult for Mr. Yates to sit at the table in his wheelchair (id.

10

30:12 - 31:3).

11

iii. Mr. Yates is seeking minimum statutory damages for eight visits

12

to this restaurant, all of which occurred between December 2001

13

and June 2003.

14 General Allegations

15

32. Each of the Taco Bell restaurants referred to in Paragraphs 28-31 above is or has

16 been during the class period owned and/or operated by TBC.

17

33. Numerous other California Taco Bell restaurants that were designed or

18 constructed by, or that are owned, operated, or leased by, or leased to, Defendant are and/or

19 have been during the class period in violation of the ADA, the Unruh Act and the CDPA,

20 including but not limited to the barriers documented in the Special Master’s interim reports,

21 ECF 216-240, Plaintiffs’ expert reports, and photographs taken by both parties and their

22 representatives.

23

34. Taco Bell restaurants are built according to one of a limited number of design

24 prototypes. As such, on information and belief, the discriminatory design features encountered

25 by Plaintiffs recur in Taco Bell restaurants throughout California.

26

35. Since January 26, 1992, some or all of the Taco Bell restaurants in California

27 have undergone alterations, as that term is used in the ADA, that affected, or could have

28 affected, the usability of part or all of those restaurants.

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1

36. Since July 1, 1970, some or all of the Taco Bell restaurants in California have

2 undergone alterations, structural repairs and/or additions, as those terms are used in California

3 law, including without limitation Cal. Health & Safety Code § 19959.

4

37. All four Plaintiffs have patronized Taco Bell restaurants in California in the past

5 and intend to continue to patronize those restaurants in the future.

6

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

7

38. Plaintiffs reallege and incorporate by reference the remainder of the allegations

8

set forth in this Complaint as if fully set forth herein.

9

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

10

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

11

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

12

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

13

40. Defendant owns, operates, leases and/or leases to Taco Bell restaurants in

14

California.

15

41. Defendant’s Taco Bell restaurants are places of public accommodation. 42

16

U.S.C. § 12181(7)(B).

17

42. Defendants have discriminated against Plaintiffs and members of the proposed

18

class on the basis of disability. Defendants’ discriminatory conduct includes but is not limited

19

to:

20

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

21

privileges, advantages, accommodations, and/or opportunities;

22

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

23

accommodations that are not equal to those afforded non-disabled

24

individuals;

25

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

26

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

27

privileges, advantages, and/or accommodations to individuals with

28

disabilities;

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1

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

2

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

3

individuals with disabilities;

4

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

5

feasible, the altered portions of the restaurants are readily accessible to

6

and usable by individuals with disabilities, including individuals who use

7

wheelchairs;

8

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

9

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

10

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

11

accessible to and usable by individuals with disabilities; and/or

12

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

13

be readily achievable to do so.

14

43. As such, Defendant discriminates and, in the absence of the injunction requested

15 herein, will continue in the future to discriminate against Plaintiffs and members of the class on

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

17 advantages, accommodations and/or opportunities of Taco Bell restaurants in California in

18 violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. and/or its

19 implementing regulations.

20

44. Defendant’s violations of the ADA have harmed and will continue to harm

21 Plaintiffs and members of the class in the future.

22

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

23 Plaintiffs pray for judgment as set forth below.

24

SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act)

25

46. Plaintiffs reallege and incorporate by reference the remainder of the allegations

26

set forth in this Complaint as if fully set forth herein.

27

28

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1

47. Defendant operates business establishments within the jurisdiction of the State of

2 California and, as such, is obligated to comply with the provisions of the Unruh Act, Cal. Civ.

3 Code, § 51, et seq. (“the Unruh Act”).

4

48. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code,

5 § 51, et seq.

6

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

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

8 establishments of every kind whatsoever within the jurisdiction of the State of California. The

9 Unruh Act also provides that a violation of the ADA is a violation of the Unruh Act.

10

50. Defendant has violated the Unruh Act by, inter alia, denying Plaintiffs and

11 members of the proposed class, as persons with disabilities, full and equal accommodations,

12 advantages, facilities, privileges, or services offered by Defendant. Defendant has also violated

13 the Unruh Act by violating the ADA, as set forth above.

14

51. Defendant has violated the Unruh Act by, inter alia, failing to operate its services

15 on a nondiscriminatory basis and failing to ensure that persons with disabilities have

16 nondiscriminatory access to its restaurants.

17

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

18 Plaintiffs pray for judgment as set forth below.

19

53. In doing the acts and/or omissions alleged herein, Defendant wrongfully and

20 unlawfully denied access to its restaurants and their facilities to individuals with disabilities and

21 acted with knowledge of the effect its conduct was having on physically disabled persons.

22

THIRD CLAIM FOR RELIEF

(California Disabled Persons Act)

23

54. Plaintiffs reallege and incorporate by reference the remainder of the allegations

24

set forth in this Complaint as if fully set forth herein.

25

55. Defendant operates, within the jurisdiction of the State of California, places of

26

public accommodation and/or places to which the general public is invited and, as such, is

27

obligated to comply with the provisions of the CDPA, Cal. Civ. Code, § 54, et seq.

28

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1

56. The conduct alleged herein violates the CDPA, including without limitation Cal.

2 Civ. Code, § 54.1, et seq. and relevant provisions of California building code regulations.

3

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

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

5 facilities, and privileges of covered entities.

6

58. Defendant has violated the CDPA by, inter alia, denying Plaintiffs and members

7 of the proposed class, as persons with disabilities, full and equal access, as other members of the

8 general public, to accommodations, advantages, facilities offered by Defendant.

9

59. Defendant has violated the CDPA by, inter alia, failing to operate its services on

10 a nondiscriminatory basis and failing to ensure that persons with disabilities have

11 nondiscriminatory access to its restaurants.

12

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

13 including Cal. Civ. Code §§ 54.3 and 55, Plaintiffs pray for judgment as set forth below.

14

61. In doing the acts and/or omissions alleged herein, Defendant wrongfully and

15 unlawfully denied access to its restaurants and their facilities to individuals with disabilities and

16 acted with knowledge of the effect its conduct was having on physically disabled persons.

17

RELIEF

18

WHEREFORE, Plaintiffs respectfully request:

19

1. That this Court assume jurisdiction.

20

2. That this Court certify the class identified in paragraph 20;

21

3. That this Court certify Plaintiffs Moeller, Corbett, Muegge and Yates as

22 representatives of this class.

23

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

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

25 § 51, et seq. and the California Disabled Persons Act, Cal. Civ. Code, § 54, et seq.

26

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

27 statutes set forth herein.

28

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1

6. That this Court award actual, compensatory, and/or statutory damages to

2 Plaintiffs for violations of their civil rights under state and federal law.

3

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

4 federal and California law.

5

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

6 and equitable.

7

Respectfully submitted,

8

CIVIL RIGHTS EDUCATION AND

ENFORCEMENT CENTER

9

10

By: /s/ Timothy P. Fox

Timothy P. Fox

11

12 Dated: November 21, 2013

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 02 05849 PJH (NC) Second Amended Class Action Complaint

Page 17

 
 Case 4:02-cv-05849-PJH Document 756 Filed 01/15/14 Page 1 of 28

1
CIVIL RIGHTS EDUCATION AND
2 ENFORCEMENT CENTER
Timothy P. Fox, Cal. Bar No. 157750
3 Amy F. Robertson, Pro Hac Vice
104 Broadway, Suite 400
4 Denver, CO 80203
Tel: (303) 757-7901
5 Email: tfox@creeclaw.org

Mari Mayeda, Cal. Bar No. 110947 PO Box 5138 Berkeley, CA 94705 Tel: (510) 917-1622 Fax: (510) 841-8115 Email: marimayeda@earthlink.net

6 LAWSON LAW OFFICES
Antonio M. Lawson, Cal. Bar No. 140823
7 6146 Mazuela Dr.
Oakland, CA 94611
8 Tel: (510) 418-2656
Email: tony@lawsonlawoffices.com
9

THE IMPACT FUND Jocelyn Larkin, Cal. Bar No. 110817 125 University Ave. Berkeley, CA 94710 Tel: (510) 845-3473 Fax: (510) 845-3654 Email: jlarkin@impactfund.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

OAKLAND DIVISION

13 FRANCIE E. MOELLER et al.,

Case No. C 02 5849 PJH

14

Plaintiffs,

15 v.

16 TACO BELL CORP.,

17
Defendant. 18

PLAINTIFFS’ MOTION FOR ENTRY OF A PERMANENT INJUNCTION
The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor Hearing Date: March 21, 2014 Hearing Time: 8:30 a.m.

19 \
20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2 NOTICE AND RELIEF SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 THE RECORD IN THIS CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 I. 6

This Court Has Already Determined That TBC Has Committed Numerous and Widespread Violations of Access Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

7 II. TBC’s Deficient Centralized Practices and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8

A. TBC’s Accessibility Practices and Policies Are Centralized . . . . . . . . . . . . . . . 2

9

B. Many Elements in TBC Restaurants Change Frequently . . . . . . . . . . . . . . . . . . 3

10

C. TBC’s History of Not Following its Own Access Policies . . . . . . . . . . . . . . . . 3

11

1. In 2005, Years after this Lawsuit Was Filed,

TBC Still Did Not Have Policies in Place Covering the

12

Accessibility of Many Architectural Elements, and

Was Not Following Those Policies That it Did Have . . . . . . . . . . . . . . 3

13

2. By 2009, TBC Had Changed its Access Policies, but it

14

Still Was Not Following Those Policies . . . . . . . . . . . . . . . . . . . . . . . . 4

15

3. By 2011, Almost Ten Years after this Case Was Filed,

TBC Had Once Again Changed its Access Policies, but

16

Still Was Not Following Those Policies . . . . . . . . . . . . . . . . . . . . . . . . 6

17

a. Maintenance Technician Checklist . . . . . . . . . . . . . . . . . . . . . . 6

18

b. Maintco twice-yearly surveys . . . . . . . . . . . . . . . . . . . . . . . . . . 7

19

c. Success walks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

20

d. Pre-Opening “Access for the Disabled Walks” . . . . . . . . . . . . . 8

21

D. TBC’s Remediation Efforts Are Motivated by a Litigation Strategy . . . . . . . . 9

22

E. TBC’s Access Policies Are Vague and Contradictory, and Have Changed

Frequently over Time, Often for the Worse . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

24

I. Plaintiffs and the Class Have Standing to Seek Injunctive Relief . . . . . . . . . . . . . . . . 11

25

A. Standing Is Different than Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

26

B. The Class Has Established Standing Based on TBC’s

27

Repeated Past Violations of Accessibility Requirements . . . . . . . . . . . . . . . . 11

28

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1
2 II.
3 III.
4

C. The Class Has Established Standing Because its Injuries Stem from Critically Deficient Centralized Practices and Policies . . . . . . . . . . . . . . 12
The Class Is Entitled To Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TBC Has Not Come Close to Meeting Its Burden of Demonstrating that Class Injunctive Claims are Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5

A. TBC Could Change or Rescind its Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6

B. TBC Has a Decade-Long History of Not Following its Own Policies . . . . . . 15

7

C. TBC’s Policies Are Vague and Contradictory . . . . . . . . . . . . . . . . . . . . . . . . . 17

8

D. TBC’s Remediation Efforts Are Motivated by a Litigation Strategy . . . . . . . 17

9

E. TBC Refuses to Acknowledge Wrongdoing . . . . . . . . . . . . . . . . . . . . . . . . . . 18

10

F. The Record in this Case Against a Mootness Finding Is Far Stronger

than in Numerous Other Cases in Which the Ninth Circuit Reversed

11

District Courts That Found Injunctive Relief Moot . . . . . . . . . . . . . . . . . . . . . 18

12 IV. A Systemwide Injunction Is Warranted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

13

A. The Numerous and Widespread Violations Already Established by this Court,

by Themselves, Warrant Entry of a Systemwide Injunction . . . . . . . . . . . . . . 21

14

B. A Systemwide Injunction Is Warranted because These Violations Resulted

15

from TBC’s Critically Deficient Centralized Practices and Policies . . . . . . . . 21

16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Cases

3 Am. Cargo Transp., Inc. v. United States,

625 F.3d 1176 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4

Antoninetti v. Chipotle Mexican Grill, Inc.,

5

643 F.3d 1165 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

6 Armster v. U.S. Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . 17-18

7 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

8 Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19

9 Binsz v. Cody, 1994 WL 577558 (10th Cir. Oct. 17, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

10 Clement v. California Department of Corrections,

364 F.3d 1148 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

11

Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

12

Easyriders Freedom F.I.G.H.T. v. Hannigan,

13

2 F.3d 1486 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

14 E.E.O.C. v. Am. Home Furnishings, Inc.,

220 F. App’x 704 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

15

E.E.O.C. v. Goodyear Aerospace Corp.,

16

813 F.2d 1539 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

17 Feldman v. Pro Football, Inc.,

419 F. App’x 381, 2011 WL 1097549 (4th Cir. Mar. 25, 2011) . . . . . . . . . . . . . . . . . 15

18

Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . 12

19

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

20

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20

21 Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

22 Moeller v. Taco Bell Corp.,

2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

23

Moyle v. County of Contra Costa,

24

2007 WL 4287315 (N.D. Cal. Dec. 5, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

25 Moreno v. La Curacao, 463 F. App’x 669 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

26 Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 21

27

28

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1 Pereira v. Ralph’s Grocery Co.,

2007 WL 7543254 (C.D. Cal. Oct. 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2

Pereira v. Ralph’s Grocery Co.,

3

329 F. App’x 134 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4 Seneca v. Arizona, 345 F. App’x 226 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19

5 Sheely v. MRI Radiology Network, P.A.,

505 F.3d 1173 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 20

6

United States v. Laerdal Mfg. Corp., 73 F.3d 852 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . 15, 18

7

United States v. Oakland Cannabis Buyers’ Coop.,

8

532 U.S. 483 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

9 Statutes
10 42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11

12

Regulations

13 Cal. Code Regs. tit. 24, § 1133B.2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 Notice and Relief Sought: On March 21, 2014, at 8:30 a.m., before the Honorable Phyllis J.

2 Hamilton, Plaintiffs will move for an order entering Plaintiffs’ proposed permanent injunction.

3

INTRODUCTION

4

This Court has already found that: (1) defendant Taco Bell Corp. (“TBC”) has

5 committed almost 400 violations of state and federal accessibility requirements spread among

6 more than 160 restaurants; and (2) TBC has centralized accessibility practices and policies that

7 it consistently has not followed, that are vague and contradictory, that change frequently often

8 for the worse, and that could be changed or rescinded in the future. These findings are

9 supported by written policies in place at all covered restaurants that this Court has found to be

10 deficient, and deposition and trial testimony from numerous TBC employees at all managerial

11 levels taken over a six-year span from 2005 to 2011 covering various iterations of TBC’s

12 accessibility policies.

13

Plaintiffs below first describe the record in this case relevant to their request for a

14 permanent injunction. They then demonstrate that the weight of Ninth Circuit precedent sides

15 decisively towards entry of a systemwide injunction, and denial of any argument that injunctive

16 relief is moot. The Ninth Circuit has, in numerous decisions cited below, affirmed district

17 courts who have entered systemwide injunctions, and reversed district courts who have found

18 such relief moot, in cases in which the record supporting entry of an injunction was much less

19 compelling and comprehensive than the record here. Plaintiffs thus ask this Court to enter their

20 proposed injunction, submitted simultaneously with this motion.

21

THE RECORD IN THIS CASE

22 I. This Court Has Already Determined That TBC Has Committed Numerous and Widespread Violations of Access Requirements.
23 This Court, through its August 2007 partial summary judgment decision (ECF 307) and
24 2011 Findings of Fact and Conclusions of Law after the exemplar trial (“FFCL” (ECF 642)),
25 has found that TBC has committed almost 400 violations of access requirements spread among
26 more than 160 restaurants. See FFCL at 52.
27

28

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1 II. TBC’s Deficient Centralized Practices and Policies.

2

Plaintiffs summarize below the findings of this Court following the exemplar trial, as

3 well as deposition and trial testimony from five restaurant managers, a maintenance technician

4 responsible for 26 California corporate TBC restaurants, a DMA Ops Leader responsible for 34

5 California corporate TBC restaurants, and a facility leader responsible for 86 California

6 corporate TBC restaurants. As set forth in detail below, each of these employees was charged

7 with critical responsibilities in implementing TBC’s ever-changing centralized accessibility

8 policies, policies that TBC has on multiple occasions represented to this Court would ensure

9 that violations would not recur in its restaurants. Across the board, and across various

10 iterations of TBC’s policies, these employees testified that they knew virtually nothing about

11 TBC’s access policies, often did not even know of their existence, and were not following

12 those policies.

13

A. TBC’s Accessibility Practices and Policies Are Centralized.

14

TBC develops its accessibility practices and policies from its corporate headquarters in

15 Irvine, transmitting those policies by memo to its restaurant managers, and/or placing those

16 policies in its Answer System, available to restaurant managers through the Internet. See, e.g., 17 Ex. 1 to Declaration of Timothy Fox (“Fox Dec.”) (memo to all restaurant managers);1 Fox 18 Dec. ex. 3 at 587:18-88:8 (describing Answer System).2 Thus this Court found that “TBC’s

19 access policies are centralized -- policies in place at Taco Bell 4518 are also in place at all other

20 California corporate Taco Bell restaurants.” FFCL at 15; see also Fox Dec. ex. 3 at 734:23-

21 735:3 (Elmer trial testimony).

22

23

24

25

1

Many of the policy documents described herein were previously filed by TBC in

support of its mootness argument and/or admitted at the exemplar trial. For the Court’s 26 convenience, Plaintiffs attach the documents as exhibits to the declaration of Timothy Fox, and

in that declaration, Plaintiffs provide the ECF and/or trial exhibit numbers for these documents. 27

2

The transcript pages from the exemplar trial cited herein are included in Exhibit

28 3 to the Fox Declaration.

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1

B. Many Elements in TBC Restaurants Change Frequently.

2

This Court has already found that a number of architectural elements in TBC

3 restaurants change frequently. FFCL at 42-43. These elements include, for example, parking

4 striping and signs, entrance door force and closing time, position of chain blocking access in

5 queue line, obstruction of route from door to queue line, self-service dispensers, dining room

6 tables and chairs, restroom soap dispensers, and insulation on restroom lavatory pipes. Id.; see

7 also Fox Dec. ex. 2 at ¶ 6 (declaration of Taco Bell facility leader describing architectural

8 elements that change frequently). Indeed, the Court found -- based on TBC’s assertion in a

9 signed pleading -- that “because of this frequent change, the fact that an element is in

10 compliance at one time ‘is not dispositive of whether the same element is in compliance’ at

11 another time. Thus, evidence of the current compliant status of certain elements is not

12 dispositive of whether the elements will continue to be compliant in the future.” Moeller v.

13 Taco Bell Corp., 2007 WL 2301778, at *8 (N.D. Cal. Aug. 8, 2007) (quoting Def.’s Motion.

14 for Modification of Class Definition, ECF 110, at 3:13-18.)

15

Because architectural elements change frequently in TBC restaurants, it is imperative

16 that TBC have practices and policies in place to prevent violations from recurring. As set forth

17 in the next section, despite having had a decade and multiple opportunities to do so, TBC has

18 completely failed to implement effective accessibility policies in its restaurants.

19

C. TBC’s History of Not Following its Own Access Policies.

20

1. In 2005, Years after this Lawsuit Was Filed, TBC Still Did Not Have

Policies in Place Covering the Accessibility of Many Architectural

21

Elements, and Was Not Following Those Policies That it Did Have.

22

This case was filed in December 2002. In September 2005, almost three years later,

23 Plaintiffs took the Rule 30(b)(6) deposition of Steve Elmer, TBC’s Director of ADA

24 Compliance. Based on this deposition testimony, this Court found in its FFCL that prior to

25 2005, TBC had no policies in place to monitor whether certain elements that change frequently

26 remained in compliance with accessibility requirements, including entrance and restroom door

27 force, door closing time, and restriping of parking lots. FFCL at 15; see also Fox Dec. ex. 24 at

28 75:13 - 76:12; 77:7 - 77:11, 77:14 - 77:21; 78:17 - 78:23, 79:3 - 79:14; 79:18 - 79:23 (Elmer

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1 deposition testimony). Those policies that did exist relied heavily on Facility Leaders for

2 accessibility tasks, including for example to ensure that all repairs and minor construction

3 complied with accessibility requirements, and to provide informal training to restaurant

4 employees about accessibility. FFCL at 15; Fox Dec. ex. 24 at 53:10-53:13, 53:17-54:10,

5 54:20-55:1, 57:11-57:16; 58:4-58:9; 70:23-71:12; 73:16-73:20, 73:24-74:9. However, even

6 though TBC knew that accessibility regulations are “‘highly technical, ha[ve] a number of

7 different aspects, [are] in many cases beyond the expertise level of a facilities leader . . .,’” it

8 did not provide Facility Leaders with accessibility training until 2005. FFCL at 15; Fox Dec.

9 ex. 24 at 63:10-14. As a result, Jaime de Beers, a Facility Leader responsible for 87 restaurants 10 in Northern California,3 testified in her deposition that she had “‘no clue’ about various

11 accessibility requirements.” FFCL at 15; Fox Dec. ex. 25 at 123:22 - 124:4, 126:23 - 127:7 (de

12 Beers deposition testimony).

13

2. By 2009, TBC Had Changed its Access Policies, but it Still Was Not

Following Those Policies.

14

By 2009, TBC had issued new access policies in a document entitled “ADA

15

Guidelines/Checklist for Operations” (Fox Dec. ex. 5). It circulated a hard copy of these

16

Guidelines to restaurant managers in April 2009, and an electronic version was posted on the

17

Answer System. Fox Dec. exs. 4 & 5; ex. 19 at 26:19 - 27:4.

18

The ADA Guidelines consisted of a list of various accessibility items that restaurant

19

employees were responsible for checking, including for example making sure that paths of

20

travel inside and outside of restaurants were kept free of obstructions, arranging lids and

21

dispensers so that they were within reach range of people using wheelchairs, and ensuring that

22

trash cans in restrooms did not impede wheelchair access. See Fox Dec. ex. 5. In addition,

23

these Guidelines prohibited managers from replacing any restroom signs, dispensers, mirrors,

24

sinks, toilets, urinals, faucets, etc. without first consulting an Area Coach or Facility Leader.

25

Id.

26

27

28

3

FFCL at 42.

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1

Restaurant managers were responsible for ensuring that the ADA Guidelines were

2 “being followed,” that each team member was “complying with the ADA Guidelines,” and that

3 any team member who was not complying with the ADA Guidelines was provided training.

4 Fox Dec. ex. 4.

5

In September 2009, Plaintiffs deposed four Taco Bell restaurant managers. These

6 depositions revealed that the restaurant managers -- who were supposed to have significant

7 responsibility for ensuring that the ADA Guidelines were followed -- were in actuality almost

8 entirely ignorant of the Guidelines, or their responsibility for implementing them. Indeed, three

9 of the four managers testified that they had never even seen the Guidelines or any other policy

10 or other document relating to the use of the restaurant by people who use wheelchairs or

11 scooters. Fox Dec. ex. 6 at 19:9-17, ex. 7 at 19:5-17 and ex. 8 at 20:4-6, 22:15-20. Further,

12 other than general customer service training applicable to all customers, the managers had not

13 received any training relating specifically to the use of the restaurant by people who use

14 wheelchairs or scooters, and had not provided any such training to restaurant employees. Fox

15 Dec. ex. 6 at 19:18-24, ex. 7 at 19:18 - 20:10, ex. 8 at 15:19 - 16:19, ex. 9 at 11:21 - 12:3. The

16 testimony of restaurant manager Maria Solis was representative:

17

Q. Have you ever seen any documents relating to the use of your restaurant by

people who use wheelchairs or scooters?

18

A. No.

19

Q. Have you ever seen any documents on the Internet, the website that you

20

talked about [the Answer System], relating to the use of your restaurant by

people who use wheelchairs or scooters?

21

A. No.

22

Q. Do you provide training to your store employees?

23

A. Training, yes.

24

Q. And does that training relate in any way to the use of your restaurant by

25

people who use wheelchairs or scooters?

26

A. No.

27 Fox Dec. ex. 6 at 19:9-24.

28

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1

Finally, although the Guidelines required managers to contact an Area Coach or Facility

2 Leader before replacing any restroom signage or equipment (to make sure that replaced items

3 were installed in a manner that complied with the ADA), every one of these managers testified

4 that they believed they had the authority to replace such items on their own without consulting

5 their superiors. Fox Dec. ex. 6 at 10:4 - 11:6, ex. 7 at 12:19 - 14:17, ex. 8 at 12:13 - 14:14, ex.

6 9 at 9:1 - 10:8.

7

3. By 2011, Almost Ten Years after this Case Was Filed, TBC Had

Once Again Changed its Access Policies, but Still Was Not Following

8

Those Policies.

9

In 2010, TBC once again revised its access policies, and based on these policies, it

10 argued during the 2011 exemplar trial -- for the third time4 -- that class injunctive claims were

11 moot. There was thus a substantial amount of evidence admitted at the exemplar trial

12 concerning TBC’s current policies, and this Court addressed these policies in detail in its

13 FFCL. Specifically, the Court found as follows.

14

TBC has four policies that are intended to ensure that accessibility is maintained at its

15 restaurants: (a) the Maintenance Technician Checklist; (b) Maintco surveys and the “3rd Party

16 ADA Maintenance Vendor Checklist,” which is meant to be used during the surveys;

17 (c) “Success Walks”; and (d) Pre-Opening “Access for the Disabled Walks” and the checklist

18 of items that are supposed to be checked during those walks. These four policies are in place at

19 all California corporate TBC restaurants. FFCL at 16-17; Fox Dec. ex. 3 at 734:23 - 735:3,

20 790:21 - 791:12.

21

a. Maintenance Technician Checklist.

22

Each time a Maintenance Technician visits a restaurant, he or she is supposed to check

23 each of the 34 items listed on the ADA Maintenance Technician Checklist. FFCL at 17; Fox

24 Dec. ex. 3 at 633:8 - 635:5; 791:19 - 792:11. The Maintenance Technician for TBC 4518 was

25 Doug Henry, who was also responsible for 25 other California TBC restaurants in his area.

26

4

TBC had argued on two previous occasions that Plaintiffs’ claims were moot: in

27 response to Plaintiffs’ 2007 Motion for Partial Summary Judgment, ECF 260 at 4, 34-38, 39-

40; and in its own 62-page motion for summary judgment in 2009, ECF 458 at 3-8. The Court 28 rejected both arguments. Moeller, 2007 WL 2301778, at *8; id., ECF 512 at 1.

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1 FFCL at 17; Fox Dec. ex. 10 at 7:8-14, 9:3-17. TBC did not call Mr. Henry as a witness at

2 trial. Nevertheless, during his deposition, Mr. Henry testified that he had never seen the ADA

3 Maintenance Technician Checklist, that he did not understand what some of the items on the

4 Checklist meant, and that his standard practice was to check only five of the 34 items on the

5 Checklist. FFCL at 17; Fox Dec. ex. 10 at 14:22 - 15:5; 23:15 - 24:7, 33:11-20, 39:10 - 40:13,

6 42:5 - 43:8.

7

The ADA Maintenance Technician Checklist includes the following language in bold:

8 “If a deviation from an applicable guideline is detected following an inspection, these item(s)

9 shall be reviewed by our ADA Compliance team to determine whether certain limited

10 exceptions to the guidelines apply, which will be evaluated on an item-by-item basis.” FFCL at

11 17; Fox dec. ex. 14 at 4.

12

b. Maintco Twice-Yearly Surveys.

13

According to Mr. Elmer, TBC has entered into a year-to-year contract with Maintco to

14 perform twice yearly surveys of its restaurants, which began in mid-2009. FFCL at 17; Fox

15 Dec. ex. 3 at 732:10-21, 759:15 - 760:12. Each time it surveys a TBC restaurant, Maintco

16 sends an invoice to TBC, and also sends a completed Maintco Checklist. FFCL at 17; Fox

17 Dec. ex. 3 at 611:2-22; 731:16 - 732:18.

18

At trial, TBC submitted invoices from Maintco for surveys of TBC 4518. Based on

19 those invoices, there was no Maintco survey at TBC 4518 between June 12, 2009 and August

20 3, 2010. FFCL at 17. Based on Mr. Elmer’s testimony that Maintco began its surveys of TBC

21 4518 by at least June 2009, there should be at least four, and possibly five, Maintco Checklists

22 for that restaurant. At trial, TBC submitted only two such checklists for restaurant 4518. Id. at

23 17-18.

24

The Maintco Checklist includes the following language in bold: “If a deviation from an

25 applicable guideline is detected following an inspection, these item(s) shall be reviewed by our

26 ADA Compliance team to determine whether certain limited exceptions to the guidelines

27 apply, which will be evaluated on an item-by-item basis.” Id. at 18; Fox Dec. ex. 15 at 4.

28

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1

c. Success Walks.

2

According to Mr. Elmer, every 30 minutes, the manager in charge of a TBC restaurant

3 conducts a “success walk” through the restaurant, during which “they check for access for the

4 items that the plaintiffs have raised here.” FFCL at 18; Fox Dec. ex. 3 at 34:3-7; 586:3 -

5 587:17; 832:10 - 833:18. TBC did not submit the checklist used for the Success Walks at trial.

6 FFCL at 18.

7

Jeffrie Kuan-Bone, who since 2009 has been the Restaurant General Manager (“RGM”)

8 at TBC 4518, testified at trial by deposition that success walks do not address disability or

9 ADA issues. Id.; Fox Dec. ex. 16 at 11:24 - 12:4. TBC did not call Mr. Kuan-Bone as a

10 witness at trial. FFCL at 18.

11

d. Pre-Opening “Access for the Disabled Walks.”

12

According to Mr. Elmer, each morning before a TBC restaurant opens, the manager in

13 charge is supposed to check each of the accessibility items on the “Access for the Disabled

14 Walk.” FFCL at 18; Fox Dec. ex 3 at 652:12 - 653:6; 793:20 - 794:10, ex. 17. TBC RGMs

15 were responsible for making sure that these walks occurred. FFCL at 18; Fox dec. ex. 3 at

16 795:17-24, ex. 18. Mr. Kuan-Bone, however, testified at trial by deposition that he had never

17 heard of a disabled walk, that he had never been given a checklist with specific disability

18 issues, and that the pre-opening walk did not include any accessibility issues. FFCL at 18; Fox

19 Dec. ex. 16 at 12:13 - 13:20.

20

Finally, TBC asserts that area coaches check the door force at each restaurant, but at

21 trial, Erich Moxley -- a DMA Ops Leader who supervises five area coaches and has 34 stores in 22 his area5 -- testified that it was his understanding that door opening for should be 8.5 pounds 23 regardless of when the restaurant was constructed,6 notwithstanding the fact that at least one 24 TBC policy provided that the force should be 5 pounds for newer restaurants,7 and

25

26

5

Fox dec. ex. 3 at 848:9-21.

27

6

Id. at 879:7 - 880:9.

28

7

FFCL at 16; Fox Dec. ex. 14 at 2.

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1 notwithstanding that this had been the standard since 2002, Cal. Code Regs. tit. 24,

2 § 1133B.2.5.

3

In light of the extensive evidence establishing that TBC is not following its own access

4 policies, and has not for at least a decade, it is not surprising that this Court found during the

5 exemplar trial a number of violations of those policies. For example:

6

•

Although it has been TBC’s policy since 2005 to have accessible signs

7

designating accessible parking spaces, photographs admitted at the exemplar

8

trial demonstrated that there was no such signage at Restaurant 4518 in June

9

2007, March 2008, and the summer of 2009.

10

•

It has been TBC’s policy since December 2006 not to locate trash cans in front

11

of restroom accessories. However, photographs admitted at trial demonstrated

12

that there was a trash can in front of the toilet seat cover dispenser in the

13

women’s restroom of Restaurant 4518 in March 2008, in the summer of 2009

14

and at some point between August and October 2009.

15

•

It has been TBC’s policy since at least at least 2007 to insulate water supply and

16

drain pipes under restroom lavatories, yet photographs admitted at trial

17

demonstrated that the pipes under the lavatory in the men’s restroom at

18

Restaurant 4518 were not insulated in March 2008, in the summer of 2009, and

19

at some point between August and October 2009.

20 FFCL at 16.

21

D. TBC’s Remediation Efforts Are Motivated by a Litigation Strategy.

22

TBC acknowledged in declarations submitted to this Court and admitted as exhibits at

23 the exemplar trial that its motive for its remediation efforts“was to render the federal and state

24 injunctive relief claims in the instant action subject to the mootness doctrine.” Fox Dec. exs.

25 11 & 12, ¶ 3.

26

27

28

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1

E. TBC’s Access Policies Are Vague and Contradictory, and Have Changed

Frequently over Time, Often for the Worse.

2

TBC has a history of frequently changing its accessibility policies, often for the worse,

3

with later policies contradicting earlier policies. As this Court has already found, “[o]ver time,

4

provisions in later policies contradicted provisions in earlier policies, and omitted architectural

5

elements that had been covered by earlier policies.” FFCL at 15.

6

This Court made a number of factual findings demonstrating this point, including:

7

•

TBC’s policy concerning door force changed from 8 pounds in 2005, to 5

8

pounds in 2006, to 5 pounds or 8.5 pounds in April 2009, depending upon the

9

permitting date of a restaurant. FFCL at 16; Fox Dec. ex. 13 at 1, ex. 20 at 5,

10

ex. 3 at 738:22-739:5. By 2010, there were three policies in effect, each of

11

which set forth a different standard for exterior door force. FFCL at 16;

12

compare Fox Dec. ex. 21 (8.5 pounds) with ex. 22 at 6 (5 pounds) and ex. 14 at

13

2 (5 pounds or 8.5 pounds depending upon permitting date). TBC’s “DMA Ops

14

Leader” Erich Moxley testified at trial that it was his understanding that it is

15

TBC’s policy that door opening force should be 8.5 pounds regardless of when

16

the store was built, and a form dated October 2010 asks only whether the

17

exterior doors open with 8.5 pounds of pressure or less. FFCL at 16; Fox dec.

18

ex. 3 at 879:7 - 880:9, ex. 21.

19

•

Similarly, although TBC’s 2005 policy covered closing time on restroom and

20

entrance doors, Mr. Elmer testified that that issue had been omitted from TBC’s

21

2006 and 2009 policies. FFCL at 16; Fox Dec. ex. 3 at 747:9-21, 748:3-13,

22

749:4-13, 750:5 - 751:3; Ex. 23.

23

ARGUMENT

24

Plaintiffs demonstrate below, based on this Court’s factual findings and liability

25

determinations, and testimony from TBC’s employees, as described above, that (1) the Class

26

has standing to seek injunctive relief in this case, (2) the Class has established that it is entitled

27

to an injunction, (3) TBC has not met its “stringent” burden of demonstrating that it “‘it

28

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1 absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

2 recur,’” and (4) a systemwide injunction is warranted.

3 I. Plaintiffs and the Class Have Standing to Seek Injunctive Relief.

4

TBC at the November 2013 case management conference indicated that it would once

5 again argue that the class lacks standing to seek an injunction. Plaintiffs briefly address this

6 issue here.

7

A. Standing Is Different than Mootness.

8

TBC has in the past argued that its remediation efforts after the complaint was filed in

9 this case deprived the class of standing. This argument confuses standing with mootness.

10

As this Court correctly found in its FFCL, standing is evaluated based on the

11 circumstances in existence at the time the suit was filed, while mootness is evaluated based on

12 circumstances that occur after the suit was filed. FFCL at 22, 40. TBC’s argument that its

13 post-complaint remediation efforts impacted the standing of the class to seek an injunction has

14 been explicitly rejected by the Supreme Court, which held that this argument improperly

15 conflates “initial standing to bring suit” with “postcommencement mootness.” Friends

16 of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 173-74 (2000).

17

Further, the burden of proof differs between standing and mootness. A plaintiff bears

18 the burden of establishing standing by demonstrating that, at the time the suit was brought,

19 violations were “likely to recur.” Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001). The

20 burden of establishing mootness, however, is on the defendant, and it is “stringent,” requiring

21 the defendant to show that post-complaints events make “‘it absolutely clear that the allegedly

22 wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth, 528 U.S.

23 at 189 (citation omitted).

24

B. The Class Has Established Standing Based on TBC’s Repeated Past

Violations of Accessibility Requirements.

25

This Court previously held that a plaintiff can establish that violations are likely to recur

26

by demonstrating that “‘the defendants have repeatedly engaged in the injurious acts in the

27

past.’” FFCL at 24 (quoting Armstrong, 275 F.3d at 861); see also FFCL at 25 (Holding that a

28

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1 plaintiff can establish standing by demonstrating an intent to return to a non-compliant

2 accommodation, and finding that evidence of past injury is particularly relevant to making the

3 showing.).

4

This Court in its February 2007 partial summary judgment decision found that TBC had

5 committed almost 400 violations of access regulations among more than 160 restaurants. See 6 FFCL at 52.8 As a result, this Court further held in its 2011 FFCL that plaintiffs “have

7 established an intent to return to Taco Bell 4518, and because they have sufficiently

8 demonstrated that the injury is likely to recur based on TBC’s pattern of past violations of

9 federal and state access laws.” Id. at 53.

10

Because standing is evaluated by the circumstances that existed at the time the suit was

11 filed, nothing that has occurred between the 2007 partial summary judgment decision and today

12 impacts this finding.

13

C. The Class Has Established Standing Because its Injuries Stem from

Critically Deficient Centralized Practices and Policies.

14

Another method by which a plaintiff can demonstrate that violations are likely to recur

15

for standing purposes is by showing that the defendant had, “at the time of the injury, a written

16

policy, and that the injury ‘stems from’ that policy.” FFCL at 24 (citing Armstrong, 275 F.3d

17

at 861); see also Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)

18

(applying same standard in Title III case). When evaluating a defendant’s policy, “injuries can

19

stem from a failure to take action as well as from affirmative conduct,” and so a likelihood of

20

recurrence can be based on policies that omit important provisions. Armstrong, 275 F.3d at

21

863. Finally, injuries that stem from defendant’s deficient practices also establish a likelihood

22

of recurrence; indeed, the Ninth Circuit in Armstrong devoted an entire section to a discussion

23

of the defendant’s practices. Id. at 863-64.

24

Here, as this Court has already found, at the time that this suit was filed, TBC “had no

25

policies in place to monitor whether certain elements that change frequently remained in

26

27

8

See also ECF 216-240 (the Special Master’s Interim Reports showing extensive

28 violations at over 200 stores).

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1 compliance with accessibility requirements, including entrance and restroom door force, door

2 closing time, and restriping of parking lots.” Those few policies that it did have relied almost

3 entirely on facility leaders, who were not provided any training and thus had “‘no clue’” about

4 various accessibility requirements. FFCL at 15 (discussing TBC’s pre-2005 accessibility

5 practices and policies).

6

These findings establish that at the time the suit was commenced, the injuries suffered

7 by the class stemmed from TBC’s critically deficient and centralized accessibility practices and

8 policies, thus demonstrating that violations were likely to recur and conferring standing on the

9 class to seek injunctive relief.

10 II. The Class Is Entitled To Injunctive Relief.

11

This Court in its FFCL set forth the standard for entitlement to injunctive relief: “To be

12 entitled to an injunction, plaintiffs must show that TBC has violated the ADAAG or Title 24.”9

13 Further, “Plaintiffs are not required to show other prerequisites generally required for

14 injunctive relief, as ‘[t]he standard requirements for equitable relief need not be satisfied when

15 an injunction is sought to prevent the violation of a federal statute which specifically provides 16 for injunctive relief.’”10 Indeed, the Supreme Court has held that where the only relief provided

17 by a statute is an injunction, as is the case with Title III, “[t]he district court lack[s] discretion

18 because an injunction [is] the ‘only means of ensuring compliance’” and thus entry of an

19 injunction is required. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483,

20 497-98 (2001); see also Moreno v. La Curacao, 463 F. App’x 669, 670 (9th Cir. 2011)

21 (reversing district court on ground that it had abused its discretion by not entering an injunction

22 after finding that defendant had violated Title III).

23

Here, this Court has already determined that TBC has committed almost 400 violations

24 of accessibility requirements among more than 160 restaurants, entitling the class to injunctive

25

26

9

FFCL at 38 (citing 42 U.S.C. § 12188(a)(2) and Donald v. Cafe Royale, Inc.,

218 Cal. App. 3d 168, 183 (1990).

27 10 Id. (citing Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76

28 (9th Cir. 2010)).

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1 relief. Thus the only remaining issues are whether TBC has met its stringent burden of

2 demonstrating that class injunctive claims are moot, and if not, the scope of the injunction.

3 III. TBC Has Not Come Close to Meeting Its Burden of Demonstrating that Class Injunctive Claims are Moot.
4 “A case is moot when the issues presented are no longer ‘live’ or the parties lack a
5 legally cognizable interest in the outcome. . . Thus, the central inquiry in any mootness
6 challenge is whether changes in the circumstances existing when the action was filed have
7 forestalled any meaningful relief. ‘[T]he question is not whether the precise relief sought at the
8 time an application for injunctive relief was filed is still available. The question is whether
9 there can be any effective relief.’ So long as the court can grant some effective relief, it does
10 not matter that the relief originally sought is unavailable due to changed circumstances.” FFCL
11 at 39-40 (citations omitted).
12 Here, the class seeks an injunction ensuring that when architectural elements in TBC
13 restaurants change in the future -- which this Court has found occurs frequently -- they will
14 remain in compliance with accessibility regulations. TBC argues that this claim is moot
15 because after this suit was filed, it voluntarily adopted policies that will ensure that its
16 restaurants remain in compliance.
17 “A request for prospective injunctive relief will be mooted by a defendant’s voluntary
18 compliance only if the defendant meets the ‘formidable burden’ of demonstrating that it is
19 ‘absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.’
20 That is, TBC has the ‘heavy burden of persua[ding]’ the court that the challenged conduct
21 cannot reasonably be expected to start up again.” Id at 40. (citations omitted). TBC has not
22 met this burden.
23 A. TBC Could Change or Rescind its Policies.
24 As this court found in its FFCL, “TBC could change or rescind its policies at any time.
25 Even if the court assumes for the sake of argument that TBC’s accessibility policies are facially
26 sufficient and are being followed, the fact that TBC could change these policies -- by, for
27 example, not renewing its year-to-year contract with Maintco, or not providing access training
28

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1 to new maintenance technicians -- means that TBC has not met its burden under the voluntary

2 cessation doctrine, particularly given the length of time required for TBC to remove or

3 remediate the barriers at Taco Bell 4518, and also given TBC’s history of vague and

4 contradictory policies.” FFCL at 42 (citing Feldman v. Pro Football, Inc., 419 F. App’x 381,

5 2011 WL 1097549, at *5 (4th Cir., Mar. 25, 2011).).

6

The risk that TBC may change its policies in the future is enhanced by its history of

7 frequently doing so in the past. See, e.g., Binsz v. Cody, 1994 WL 577558, at *3 (10th Cir. Oct.

8 17, 1994) (finding that a defendant’s history of frequently changing its policies argued against a

9 finding of mootness).

10

Indeed, the Ninth Circuit has repeatedly found that the fact that a defendant could

11 change its policies in the future is sufficient by itself to preclude a mootness finding,11 even

12 without the substantial additional evidence here precluding a mootness finding, such as, for

13 example, the delay by TBC in remediating its restaurants, its history of frequently changing its

14 policies and its history of not following its own policies.

15

B. TBC Has a Decade-Long History of Not Following its Own Policies.

16

“A defendant’s ‘ongoing history of not following its own stated . . . procedures ma[kes]

17 necessary’ an injunction.” FFCL at 40-41 (quoting United States v. Laerdal Mfg. Corp., 73

18 F.3d 852, 857 (9th Cir. 1995)).

19

TBC has a long history of not following its own accessibility policies and procedures.

20 For example, its pre-2005 accessibility policies relied heavily on Facility Leaders, but they had

21 not received any training on accessibility issues and thus had “no clue” about various

22 accessibility requirements. See supra at 3-4.

23

By 2009, TBC had instituted a new set of accessibility policies, which required

24 restaurant managers to make sure that restaurant employees, using TBC’s “ADA Guidelines,”

25

26 11 See, e.g., Bell v. City of Boise, 709 F.3d 890, 900 (9th Cir. 2013) (“Even
27 assuming Defendants have no intention to alter or abandon the Special Order, the ease with which the Chief of Police could do so counsels against a finding of mootness . . .”); Seneca v.
28 Arizona, 345 F. App’x 226, 227-28 (9th Cir. 2009).

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1 inspected each restaurant on a daily basis, and to coach the employees on how to do so.

2 However, four different restaurant managers testified in 2009 that they had never seen the

3 Guidelines or any document relating to the use of the restaurant by people who use

4 wheelchairs, that they had not received any training relating specifically to the use of the

5 restaurant by people who use wheelchairs or scooters, and had not provided any such training

6 to restaurant employees. See supra at 4-6. Further, although the Guidelines required managers

7 to contact an Area Coach or Facility Leader before replacing any restroom signage or

8 equipment, every one of these managers testified that they believed they had the authority to

9 replace such items on their own without consulting their superiors. Id.

10

By 2011, TBC had once again changed its accessibility policies, and its new policies

11 relied on maintenance technicians to use the Maintenance Technician Checklist to inspect

12 various accessibility items each time they visited a restaurant, on restaurant managers to

13 conduct pre-opening “Access for the Disabled Walks” and periodic “Success Walks,” and on

14 Maintco to conduct twice yearly surveys of each restaurant. None of these procedures was

15 being followed:

16

•

Mr. Henry, the Maintenance Technician responsible for 26 California TBC

17

restaurants, testified that he had never seen the ADA Maintenance Technician

18

Checklist, that he did not understand what some of the items on the Checklist

19

meant, and that his standard practice was to check only five of the 34 items on

20

the Checklist.

21

•

Mr. Kuan-Bone, the Restaurant General Manager for the exemplar restaurant,

22

testified that he had never heard of an Access for the Disabled walk, that he had

23

never been given a checklist with specific disability issues, and that the

24

pre-opening and success walks did not include any accessibility issues.

25

•

Although by the exemplar trial, Maintco should have surveyed the exemplar

26

restaurant at least four, and possibly five, times, TBC submitted evidence

27

showing only that two such surveys had occurred.

28

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1 See supra at 6-9.

2

In addition, this Court determined that TBC has a history of not following its policies

3 that accessible parking spaces have required signage, that trash cans in restrooms not block

4 dispensers, and that pipes under lavatories in restrooms be insulated. FFCL at 41-42.

5

Thus despite the fact that by 2011, this case had been pending for almost nine years and

6 TBC had been afforded repeated opportunities to implement effective accessibility policies, it

7 failed to do so.

8

As this Court has already recognized, TBC’s history of not following its own policies is

9 particularly important here because TBC bases its claim that violations will not recur in the

10 future on its accessibility policies. FFCL at 41-42.

11

C. TBC’s Policies Are Vague and Contradictory.

12

“[A] voluntary cessation defense cannot be based on policies that are vague or

13 contradictory.” FFCL at 42 (citing Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991)).

14 This Court determined that some of TBC’s accessibility policies have been contradictory, and

15 that TBC’s Maintenance Technician Checklist and the Maintco Checklist both include a

16 provision giving TBC the discretion to ignore violations of the checklist based on unknown and

17 unspecified criteria. Thus it is impossible to determine the circumstances under which

18 elements that do not comply with a particular checklist will actually be fixed. FFCL at 42.

19

D. TBC’s Remediation Efforts Are Motivated by a Litigation Strategy.

20

“Where the defendant has ceased to engage in the challenged conduct only for practical

21 or strategic reasons -- such as avoiding litigation -- the cessation does not make the case moot.”

22 Moyle v. County of Contra Costa, 2007 WL 4287315, at *13 (N.D. Cal. Dec. 5, 2007); see also

23 Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1186 (11th Cir. 2007) (“we are more

24 likely to find that cessation moots a case when cessation is motivated by a defendant's genuine

25 change of heart rather than his desire to avoid liability”); Armster v. U.S. Dist. Court, 806 F.2d

26 1347, 1357 (9th Cir. 1986) (holding that “[a] change of activity by a defendant under the threat

27 of judicial scrutiny is insufficient to negate the existence of an otherwise ripe case or

28

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1 controversy [under the voluntary cessation exception to mootness].”). Here, TBC has asserted

2 in declarations filed by its attorneys that it would not have remediated its restaurants but for

3 this litigation, and the only reason it did so was to moot Plaintiffs’ injunctive claims. Fox Dec.

4 exs. 11 & 12, ¶ 3.

5

E. TBC Refuses to Acknowledge Wrongdoing.

6

“[A] defendant’s failure to acknowledge wrongdoing . . . suggests that cessation is

7 motivated merely by a desire to avoid liability, and furthermore ensures that a live dispute

8 between the parties remains.” Sheely, 505 F.3d at 1187; see also Laerdal, 73 F.3d at 856

9 (Holding that a defendant’s “intransigent insistence on its own blamelessness” supported

10 finding that violations were likely to recur).

11

Here, although TBC has been found to have committed hundreds of violations of access

12 requirements -- largely established by a jointly-selected, court-appointed Special Master -- it

13 has not once acknowledged any violation or wrongdoing.

14

F. The Record in this Case Against a Mootness Finding Is Far Stronger than

in Numerous Other Cases in Which the Ninth Circuit Reversed District

15

Courts That Found Injunctive Relief Moot.

16

The evidentiary burden that a defendant must meet to establish mootness is high, and

17 this is amply demonstrated by the fact that the Ninth Circuit has reversed mootness findings in

18 cases with far less compelling facts than those that exist here.

19

For example, in Pereira v. Ralph’s Grocery Co., 2007 WL 7543254 (C.D. Cal. Oct. 25,

20 2007), a class of persons who use wheelchairs or scooters for mobility sued a chain of grocery

21 stores based on architectural barriers. The defendant remediated the barriers and sought

22 summary judgment on the ground that the class injunctive claims were moot.

23

The plaintiffs conceded that the barriers that they had identified had been remediated,

24 but argued that injunctive relief was necessary to ensure that items that changed in the future

25 remain in compliance with accessibility requirements. The district court rejected this argument

26 and found that the plaintiffs’ injunctive claims were moot. Significantly, the district court

27

28

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1 distinguished the case at bar on the ground that the evidence that architectural elements change

2 frequently is much stronger in this case than it was in Pereira. Id. at *5.

3

The Ninth Circuit summarily reversed, holding that “[t]he defendant’s ‘voluntary

4 cessation of allegedly illegal conduct’ did not moot this case.” Pereira v. Ralph’s Grocery Co.,

5 329 F. App’x 134, 134 (9th Cir. 2009).

6

In the employment discrimination context, the Ninth Circuit has repeatedly held that

7 “[v]ictims of employment discrimination generally are entitled to an injunction against future

8 discrimination, unless the employer proves it is unlikely to engage in similar unlawful conduct

9 in the future.” E.E.O.C. v. Am. Home Furnishings, Inc., 220 F. App’x 704, 707 (9th Cir. 2007)

10 (emphasis added); see also E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th

11 Cir. 1987) (same). In Goodyear, the Ninth Circuit reversed a district court that had refused to

12 enter an injunction, holding: “An employer that takes curative actions only after it has been

13 sued fails to provide sufficient assurances that it will not repeat the violation to justify denying

14 an injunction. Even if Goodyear ceased discriminating by promoting Pettigrew, its eleventh

15 hour change of heart fails to prove it is unlikely to retaliate again.” 813 F.2d at 1544-45

16 (internal citation omitted).

17

In Bell v. City of Boise, 709 F.3d 890, 898-901 (9th Cir. 2013), the Ninth Circuit

18 reversed a district court that found injunctive relief moot based on a “Special Order” issued by

19 the defendants purporting to change their policies. Significantly, in Bell -- unlike here -- there

20 was no evidence that the defendants had frequently changed their policies in the past, that they

21 had a history of not following their own policies, that there was a litigation motive for their

22 change in policy, or any of the other factors that exist here. To the contrary, the court held that

23 “[e]ven assuming Defendants have no intention to alter or abandon the Special Order, the ease

24 with which the Chief of Police could do so counsels against a finding of mootness.” Id. at 900;

25 see also Seneca v. Arizona, 345 F. App’x 226, 227-28 (9th Cir. 2009) (reversing district court

26 that had found injunctive relief moot based on the defendant’s post-complaint change in

27 policy). The Ninth Circuit reached this conclusion despite the fact that the defendant in that

28

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1 case was a governmental entity, and “‘cessation of the allegedly illegal conduct by government

2 officials has been treated with more solicitude by the courts than similar action by private

3 parties.’” Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010)

4 (citations omitted).

5

Thus in Pereira, Goodyear and Bell, the fact that the defendants had waited until after

6 being sued to take curative actions and formulate new policies, and the fact that they could

7 change or rescind those policies in the future, were sufficient to preclude a mootness finding.

8

Here, both of these facts exist, but in addition, there are numerous other facts not found

9 in Pereira, Goodyear or Bell that preclude a mootness finding, including that TBC has a

10 decade-long history of failing to follow its own accessibility policies, that it has a track record

11 of frequently changing its accessibility policies making it likely that it will do so in the future,

12 that its policies have been and are vague and ambiguous, and that it has explicitly

13 acknowledged that it has a litigation motive for its remediation efforts. Indeed, in a case with

14 facts supporting a mootness finding that were far more compelling than the present, the

15 Eleventh Circuit concluded that the defendant “cannot establish (indeed, has not even come

16 close to establishing) that ‘it is absolutely clear the allegedly wrongful behavior could not

17 reasonably be expected to recur.’” Sheely, 505 F.3d at 1188 n.15 (quoting Friends of the

18 Earth, 528 U.S. at 190). Thus the record in this case far exceeds any other case cited by the

19 parties in establishing that class injunctive claims are not moot.

20 IV. A Systemwide Injunction Is Warranted.

21

As this Court found in its FFCL, “‘[t]he scope of injunctive relief is dictated by the

22 extent of the violation established. The key question . . . is whether the inadequacy complained

23 of is in fact widespread enough to justify system wide relief.’ A court need not address every

24 violation in order to conclude that violations are sufficiently widespread to necessitate a system

25 wide injunction. Rather, a court can enter such an injunction based on evidence that is

26 ‘symptomatic’ of the defendant’s violations, including ‘individual items of evidence [that are]

27 representative of larger conditions or problems.’ Finally, while the scope of relief must

28

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1 correspond to the injury suffered, in a certified class action, the injury, and the corresponding

2 relief, extends to the class as a whole.” FFCL at 39 (citing Armstrong, 275 F.3d at 870-71).

3

“”[T]he decision to grant system-wide prospective injunctive relief does not occur in a

4 vacuum; it is intimately connected to determinations made earlier in the lawsuit.” Armstrong,

5 275 F.3d at 870-71. Here, a systemwide injunction is warranted for two independent reasons:

6 (1) this Court has already determined TBC has committed hundreds of violations among more

7 than 160 of the 220 restaurants originally at issue, symptomatic evidence of systemwide

8 violations that far exceeds that found in cases in which the Ninth Circuit has affirmed entry of a

9 systemwide injunction; and (2) these violations resulted from deficient centralized practices

10 and policies.

11

A. The Numerous and Widespread Violations Already Established by this

Court, by Themselves, Warrant Entry of a Systemwide Injunction.

12

This Court has held that TBC has engaged in almost 400 violations spread among more

13

than 160 of the 220 restaurants originally at issue in this case. FFCL at 52. This record

14

exceeds the record in other cases in which the Ninth Circuit has held that a systemwide

15

injunction was warranted.

16

For example, in Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1122 n.13 (9th Cir.

17

2003), the Ninth Circuit found that a determination that violations existed in just 7 out of 36

18

counties -- only 24% of the counties at issue -- was a sufficient basis for an injunction covering

19

all 36 counties.

20

Here, this Court has already held that violations existed in more than 160 of the 220

21

restaurants at issue, more than 70% of the covered restaurants. This is an ample evidentiary

22

basis for a systemwide injunction.

23

B. A Systemwide Injunction Is Warranted because These Violations Resulted

24

from TBC’s Critically Deficient Centralized Practices and Policies.

25

The Ninth Circuit in Armstrong held that “[s]ystem-wide relief is required if the injury

26 is the result of violations of a statute . . . that are attributable to policies or practices pervading

27 the whole system.” Armstrong, 275 F.3d at 870 (emphasis added).

28

Case No. C 02 05849 PJH Plaintiffs’ Motion for Entry of a Permanent Injunction

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1

Here, as set forth in detail above, this Court’s findings in its FFCL, reinforced by the

2 sworn testimony of numerous TBC employees at every managerial level taken over a six-year

3 span, establish that TBC’s centralized accessibility practices and policies have been, and are,

4 critically deficient. For example, TBC’s practices and policies:

5

•

have consistently not been not followed;

6

•

place significant responsibilities on employees who have no idea how to carry

7

out those responsibilities, as demonstrated by the fact that many are not even

8

aware of the existence of these policies;12

9

•

are inconsistent, vague and contradictory;

10

•

change frequently, often for the worse;

11

•

give TBC complete discretion to ignore violations; and

12

•

could be changed or rescinded at any time.

13

These critical deficiencies in TBC’s accessibility practices and policies are even more

14 problematic here because -- as this Court has already found based on TBC’s admissions --

15 numerous architectural elements in TBC restaurants change frequently so that compliance at

16 one time is not determinative of compliance at a future time. Moeller, 2007 WL 2301778, at

17 *8 (quoting Def.’s Motion. for Modification of Class Definition, ECF 110, at 3:13-18.) Thus

18 architectural elements will change in the future, and TBC has a decade-long history of

19 demonstrating that despite being given multiple opportunities, it simply cannot put in place

20 effective policies to ensure that these elements will remain in compliance with accessibility

21 regulations when they do change.

22

The record here is far stronger than that in similar cases in which the Ninth Circuit has

23 affirmed entry of systemwide injunctions based on violations that stemmed from deficient

24 practices and policies.

25

26

27

12 See Armstrong, 275 F.3d at 863 (finding that violations were likely to recur

based in part on the defendant’s practice of delegating responsibility for compliance to

28 untrained employees).

Case No. C 02 05849 PJH Plaintiffs’ Motion for Entry of a Permanent Injunction

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1

For example, in Clement v. California Department of Corrections, 364 F.3d 1148, 1153

2 (9th Cir. 2004), the Ninth Circuit held that the fact that the deficient policy at issue was in

3 place in just eight California prisons, and was being considered by others, was a sufficient basis

4 for entry of a systemwide injunction covering all prisons. Unlike Clement, in which the

5 systemwide injunction was based only on the fact that the deficient policy was in place at a

6 subset of covered facilities, the deficient policies and practices here are in place at all covered

7 facilities.

8

This case is also stronger than Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d

9 1486, 1502 (9th Cir. 1996), in which the Ninth Circuit held that even though there existed

10 proof of only 14 violations, a systemwide injunction was warranted because these violations

11 resulted from a deficient statewide policy. Here, as in EasyRiders, the deficient policies are in

12 place at all covered restaurants, but in addition, the hundreds of liability determinations already

13 established in this case far exceed the 14 in EasyRiders.

14

CONCLUSION

15

For the reasons set forth above, Plaintiffs respectfully request that their proposed

16 permanent injunction be entered.

17

18

Respectfully submitted,

19

CIVIL RIGHTS EDUCATION AND

ENFORCEMENT CENTER

20

21

By: /s/ Timothy P. Fox

Timothy P. Fox

22

23 January 15, 2014

Attorneys for Plaintiffs

24

25

26

27

28

Case No. C 02 05849 PJH Plaintiffs’ Motion for Entry of a Permanent Injunction

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1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 FRANCIE E. MOELLER, et al.,

12

Plaintiffs,

13 v.

14 TACO BELL CORP.,

15 Defendant.
16

Case No. C 02 5849 PJH NC
CLASS ACTION
[PROPOSED] AMENDED ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT
Date: June 4, 2014 Time: 9 a.m. Judge: Hon. Phyllis J. Hamilton

17

18

Having reviewed the parties’ Joint Motion for Preliminary Approval of Class Settlement,

19 the proposed Settlement Agreement, the proposed Notice, the proposed Notice dissemination

20 plan, and the arguments of counsel, along with the files and records of this case, the Court now

21 FINDS, CONCLUDES, and ORDERS as follows:

22 I. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT AGREEMENT

23

The Court has reviewed the terms of the proposed Settlement Agreement attached as

24 Exhibit A, including specifically the injunctive relief provisions. The Court also reviewed the

25 Motion papers and the declaration of Timothy P. Fox, which describes the background of this

26 case, and the settlement process. Based on review of those papers, and the Court’s familiarity

27 with this case, the Court concludes that the Settlement Agreement is the result of extensive,

28 arms’ length negotiations between the parties after extensive and lengthy litigation. The Court

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 2 of 31

1 finds that the settlement process was noncollusive. Based on the Court’s review of papers

2 submitted in support of preliminary approval, and the Court’s familiarity with the issues in the

3 case, the Court concludes that the proposed Settlement Agreement has no obvious defects and

4 is within the range of possible settlement approval, such that notice to the Class is appropriate.

5

It is therefore ORDERED that the Settlement Agreement is hereby PRELIMINARILY

6 APPROVED. Final approval is subject to the hearing of any objections of members of the

7 Class to the proposed settlement.

8 II. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT

9

A. Final Approval Hearing

10

The Court hereby schedules a hearing to determine whether to grant final approval of

11 the Settlement and Settlement Agreement, including Class Counsel’s application for attorneys’

12 fees and costs, for September 24, 2014 at 9:00 am.

13

B. Deadline for Filing Objections to Settlement, Including Plaintiffs’

Application for Attorneys’ Fees and Costs

14

Any objection to the Settlement, including to Plaintiffs’ application for attorneys’ fees

15

and costs, must be postmarked no later than August 15, 2014.

16

C. Deadline for the Parties to Respond to Any Objections.

17

The parties will respond to any timely-filed objections no later than September 5, 2014.

18

19 D. Deadline for Submitting Motion Seeking Final Approval
20 Plaintiffs shall file a Motion for Final Approval of the Settlement by September 5, 2014.
21 That brief shall respond to any timely filed objections, including timely filed objections to
22 Plaintiffs’ application for attorneys’ fees and costs.
23 E. Deadline for Submitting Application for Attorneys’ Fees and Costs
24 Class Counsel shall file with this Court their application for attorneys’ fees and costs by
25 August 1, 2014.
26

27

28

Case No. C 02 05849 PJH NC [PROPOSED] PRELIMINARY APPROVAL ORDER

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1 III. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE
2 A. The Parties have also submitted for this Court’s approval a proposed form Class
3 Notice, which the Court has carefully reviewed. The Court finds and concludes as follows:
4 1. The proposed Notice allows Class Members a full and fair opportunity
5 to
6 consider the proposed Settlement. The proposed plan for distributing the Notice, which is
7 described in the parties’ Joint Motion for Preliminary Approval of Class Settlement, is a
8 reasonable method to inform class members of the terms of the settlement, including Plaintiffs’
9 forthcoming application for attorneys’ fees and costs, and of Class Members’ opportunity to
10 comment on, or object to, these terms. Under the proposed Notice plan, Plaintiffs will
11 distribute notice by mail and email, respectively, to the last known street and email addresses
12 of more than 1,000 potential class members in the potential Class Member database maintained
13 by Plaintiffs. Plaintiffs will also post the Notice on the website that they have established for
14 this case. Finally, Plaintiffs will also send the notice, as well as a link to the notice on the
15 website, via email to disability rights organizations in California with a request that it be
16 printed and posted and that the organizations put a link to the notice on their website.
17 2. The Notice fairly, plainly, accurately, and reasonably informs Class
18 Members of: (1) the nature of this litigation, the class bound by the agreement, the identity of
19 Class Counsel, and the essential terms of the Settlement, including injunctive relief; (2) Class
20 Counsel’s forthcoming application for attorneys’ fees and costs; (3) the Court’s procedures for
21 final approval of the Settlement Agreement; (4) class members’ right to comment or object if
22 they desire; and (5) how to obtain additional information regarding this litigation and the
23 Settlement.
24 3. The Court FINDS and CONCLUDES that the proposed plan for
25 distributing the Notice satisfies the notice requirements of Rule 23, and satisfies all other legal
26 and due process requirements.
27 4. Accordingly, the Court hereby ORDERS as follows:
28 a. The form of the Notice is approved.

Case No. C 02 05849 PJH NC [PROPOSED] PRELIMINARY APPROVAL ORDER

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Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 4 of 31

1

b. The manner of distributing the Notice is approved.

2

c. Within 10 days of the entry of this Order, Plaintiffs shall

3

distribute the Notice as set forth above, as in the Notice attached

4

hereto as Exhibit B.

5

6

7 IT IS SO ORDERED.

8 9 DATED: __J_u_n_e_4_,_2_0_1_4____ 10 11 12

UNITED S ALIFORNIA

OURT NORTH

TATES DISTRICT C
The HonoraIbTlIeS SPOhOyRlDlEiRsEJD. Hamilton United States District Court
Judge Phyllis J. Hamilton
ERN DISTRICT OF C

13

14

15

16

17

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21

22

23

24

25

26

27

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Case No. C 02 05849 PJH NC [PROPOSED] PRELIMINARY APPROVAL ORDER

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Exhibit A

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 6 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 7 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 8 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 9 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 10 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 11 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 12 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 13 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 14 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 15 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 16 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 17 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 18 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 19 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 20 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 21 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 22 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 23 of 31

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 24 of 31
Exhibit B

Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 25 of 31
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND HEARING
ATTENTION: PEOPLE WHO USE WHEELCHAIRS OR SCOOTERS FOR MOBILITY AND WHO PATRONIZE OR HAVE PATRONIZED TACO BELL RESTAURANTS IN CALIFORNIA
PLEASE READ THIS NOTICE CAREFULLY AS IT ADDRESSES A LAWSUIT THAT MAY AFFECT YOUR RIGHTS
I. INTRODUCTION
The purpose of this notice is to inform you of a proposed settlement in a pending class action lawsuit brought against Taco Bell Corp. (“Taco Bell”) on behalf of people who use wheelchairs or scooters for mobility. The class action settlement, which must be approved by the Court, was reached in the matter of Moeller v. Taco Bell Corp., Civil Action No. 4:02-cv-05849-PJH (the “Lawsuit”). The Lawsuit, originally filed in 2002 in the United States District Court for the Northern District of California and subsequently amended, alleged that there are architectural barriers at Taco Bell restaurants in California owned and operated by Taco Bell, which at the time the suit was filed totaled approximately 200 restaurants, that discriminate against a class of persons who use wheelchairs or scooters for mobility in violation of Title III of the Americans with Disabilities Act and California state law. The Lawsuit sought to require Taco Bell to bring these restaurants into compliance with state and federal accessibility regulations. Taco Bell has denied and continues to deny any liability or wrongdoing.
After the Lawsuit was filed, Taco Bell undertook a remediation program designed to bring its restaurants into compliance with accessibility requirements. Taco Bell subsequently sold the majority of those restaurants, and now owns and operates 41 restaurants in California (“California Corporate Restaurants”). A list of the 41 California Corporate Restaurants is set forth at the bottom of this Notice. The parties to the Lawsuit have now entered into a proposed agreement to settle the Lawsuit (the “Settlement Agreement”).
If you use a wheelchair or scooter and you have patronized, or will patronize, a California Corporate Restaurant at any time between December 17, 2001 and the end of the term of the proposed settlement (approximately September 2016), you are included in this case.
A Final Approval Hearing will be held on September 24, 2014, at 9:00 am before Judge Phyllis J. Hamilton of the United States District Court for the Northern District of California, Oakland Courthouse, Courtroom 3 - 3rd Floor, 1301 Clay Street, Oakland, California 94612, to determine if the Settlement Agreement is fair, reasonable and adequate and should therefore be approved. The date of the Final Approval Hearing may change without further notice to the class. Class Members are advised to check the settlement website (http://www.tacobellclassaction.com/) or PACER (www.pacer.gov), as described in Section VIII below, to confirm that the date of the Final Approval Hearing has not been changed. The Court
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will also determine whether to approve plaintiffs’ counsels’ application for attorneys’ fees and costs, which Taco Bell has agreed to pay pursuant to the Settlement Agreement as explained herein.
THIS NOTICE SUMMARIZES THE PROPOSED SETTLEMENT AND ADVISES YOU OF:
THE STATUS OF THE LAWSUIT; and
THE OPPORTUNITY TO FILE WITH THE COURT AN OBJECTION TO THE SETTLEMENT OR TO APPEAR AT THE FINAL APPROVAL HEARING ADDRESSING THE APPROVAL OF THE SETTLEMENT.
II. REASONS FOR SETTLEMENT
This Settlement Agreement resolves all claims currently at issue in the Lawsuit. After more than a decade of litigation and after negotiations that concluded on the eve of the second trial in this case, Class Counsel1 have concluded that the terms and conditions of the settlement are fair, reasonable, and in the best interests of the Class. In reaching this conclusion, Class Counsel have analyzed the benefits of the settlement, the possible outcome of further litigation, and the expense and length of continued proceedings necessary to prosecute this Lawsuit through trial and possible appeals. By entering into this settlement, Taco Bell does not admit any fault or wrongdoing. Taco Bell denies any and all liability to the Named Plaintiffs and the Class and denies that it has violated any laws -- federal, state or local -- pertaining to access for people who use wheelchairs or scooters. Plaintiffs and Taco Bell have agreed to a settlement to resolve all issues in the Lawsuit, which includes injunctive relief, monetary relief to the Named Plaintiffs, and attorneys’ fees and costs. The Court has conditionally approved this settlement and must approve it after the Final Approval Hearing before it becomes final. The proposed settlement is summarized below.
III. DEFINITION OF THE CLASS
The Class, which was certified by the Court on February 23, 2004, and modified on July 26, 2012,2 is defined as follows:

1

Timothy Fox, Esq. and Amy Robertson, Esq., previously of the law firm of Fox &

Robertson, P.C. and currently of the Civil Rights Education and Enforcement Center; Mari

Mayeda, Esq.; and Antonio M. Lawson, Esq. of the Lawson Law Offices.

2

On July 26, 2012, the Court decertified the damages portion of this class action,

but maintained the certification of the injunctive class. Moeller v. Taco Bell Corp., No. C

02–5849 PJH, 2012 WL 3070863, at *4 (N.D. Cal. July 26, 2012). As a result of this decision,

class members are not able to recover damages through this class action.

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Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 27 of 31

All individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after December 17, 2001, were denied, or are currently being denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of California Taco Bell corporate restaurants.

The Court has appointed plaintiffs Francie E. Moeller, Edward Muegge, Katherine Corbett, and Craig Thomas Yates as representatives of this class.

Members of the Class cannot “opt out” of the class or the effect of the Class releases described in Section V below. Members of the Class may object to the Settlement Agreement as described in Section VIII below.

IV. SUMMARY OF PROPOSED SETTLEMENT

The following is a summary of certain provisions of the Settlement Agreement. The complete Settlement Agreement is available as set forth below.

A. INJUNCTIVE RELIEF

The injunctive relief set forth in the Settlement Agreement includes the following:

•

Taco Bell will instruct its restaurant managers to conduct inspections, on at least a

daily basis, of specified architectural elements that are subject to frequent change

to ensure that they are in compliance with accessibility regulations;

•

Once every six months, Taco Bell will have a Compliance Monitor inspect each

currently owned or subsequently acquired California restaurant for compliance

with accessibility regulations, and shall take prompt corrective action with respect

to any deviations from those regulations;

•

A Construction Monitor will inspect any newly constructed California restaurant,

and any major alterations or major remodels to California restaurants, for

compliance with accessibility regulations;

•

If Taco Bell acquires additional restaurants in California that it intends to remain

open after such acquisition, it will bring those restaurants into compliance with

accessibility regulations within 120 days of the acquisition.

The Settlement Agreement also establishes a Dispute Resolution process that, for two (2) years following final approval of the settlement, shall govern the filing any claim in federal or state court to enforce any provision of the Settlement Agreement or to obtain injunctive relief alleging the existence of a barrier to access at a California Corporate Restaurant.

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B. NAMED PLAINTIFFS’ DAMAGES, ATTORNEYS’ FEES AND COSTS
Taco Bell has agreed to pay monetary relief totaling $5,375,000. Named Plaintiffs and class counsel have agreed that each named plaintiff will receive $50,000 as compensation for their damages claims (the named plaintiffs have not sought, and are not receiving, enhancement awards). Class counsel will submit a motion seeking approval by the Court of an award of attorneys’ fees and costs in the amount of $5,175,000.
V. BINDING EFFECT/RELEASES
The proposed Settlement Agreement, if finally approved by the Court, will bind all members of the Class.
As a result, each class member’s claim for injunctive relief against Taco Bell concerning the California Corporate Restaurants based on conduct preceding final approval of the Settlement Agreement will be released. This release applies to claims brought under:
(A) Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and all rules and regulations promulgated thereunder; and
(B) Cal. Civil Code Sections 52, et seq., and the Disabled Persons Act, and Unruh Act contained therein, and Cal. Code Regs., Title 24 and all rules and regulations promulgated thereunder, and any other provision of California law to the extent it grants a right of action for alleged violations of the foregoing.
The Settlement Agreement, if approved, will not release claims for damages other than by the Named Plaintiffs (on behalf of themselves only and not the Class). Thus, you do not have to object in order to be able to assert claims for damages in your own lawsuit, although you may not recover damages through this class action. No Class member can “opt out” of the Settlement Agreement, but members of the Class may object to the Settlement Agreement as described in Section VII below.
VI. HEARING ON PROPOSED SETTLEMENT
The Court has scheduled a Final Approval Hearing for September 24, 2014 at 9:00 am in the Courtroom of the Honorable Phyllis J. Hamilton of the United States District Court for the Northern District of California, Oakland Courthouse, Courtroom 3 - 3rd Floor, 1301 Clay Street, Oakland, California 94612, to determine whether the proposed settlement is fair, reasonable and adequate and should be finally approved, to determine whether to approve Class counsels’ application for attorneys’ fees and costs, and to address any other matters related to the settlement of the Lawsuit. The date of the Final Approval Hearing may change without further notice to the class. Class Members are advised to check the settlement website (http://www.tacobellclassaction.com/) or PACER (www.pacer.gov), as explained in Section VIII
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Case 4:02-cv-05849-PJH Document 798 Filed 06/04/14 Page 29 of 31
below, to confirm that the date of the Final Approval Hearing has not been changed.
It is not necessary for you to appear at the hearing. You may, however, choose to appear at the hearing, either in person or through an attorney.
Requests to be heard at the Final Approval Hearing filed by attorneys should be filed pursuant to the Electronic Case Filing Procedures for the Northern District of California, which are available online at http://www.cand.uscourts.gov/cm-ecf.
VII. OBJECTIONS TO THE SETTLEMENT AGREEMENT
You can ask the Court to deny approval by filing an objection. You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement.
You may object to the proposed settlement in writing. You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. Only Class members who have filed written objections shall have the right to present objections orally at the Final Approval Hearing, and they will only have the right to do so if they expressly seek it in their written objection.
All written objections and supporting papers must (a) clearly identify the case name and number (Moeller v. Taco Bell Corp., Civil Action No. 4:02-cv-05849-PJH), (b) be submitted to the Court either by mailing them to Class Action Clerk, United States District Court for the Northern District of California, Oakland Courthouse, 1301 Clay Street, Suite 400 S, Oakland, CA 94612, or by filing them in person at any location of the United States District Court for the Northern District of California, and (c) be filed or received on or before August 15, 2014.
Unless otherwise ordered by the Court, any Class members who do not make his or her objections or opposition to the settlement in the manner described above shall be deemed to have waived all objections and opposition to the fairness, reasonableness and adequacy of the settlement and any other matters pertaining to the Lawsuit.
VIII. ADDITIONAL INFORMATION
This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the settlement agreement available at http://www.tacobellclassaction.com and http://www.creeclaw.org, by contacting Class Counsel at 1-888-461-9191, by accessing the Court docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, Oakland Courthouse, 1301 Clay Street, Suite 400 S, Oakland, California 94612, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S
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OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.

California Corporate Restaurants

Restaurant Number
17435 4168 4356 4510 4578 3207 27634 15362 15455 4054 15573 22460 26836 20190 24402 20578 21226 17751 16276 4342 2700 9489

Address
2676 Mt Vernon Avenue 6119 Niles Street 7880 White Lane "2300 ""H"" St" 3315 Union Ave 3799 Rosedale Highway 139 South Oswell St. 1877 White Lane 3200 California Avenue 4675 Ming Ave 551 Weedpatch Hwy 9640 Hageman Rd. 3707 Coffee Rd. 3300 Panama Lane 3300 Buena Vista Rd - Bldg I 15 South H Street 2433 N. Chester Avenue 5121 Olive Drive 303 West Imperial Highway 4200 Chino Hills Pkwy 131 E Orangethorpe Ave 3000 E. Yorba Linda Blvd

City
Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Bakersfield Brea Chino Hills Fullerton Fullerton

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3420 27505 3904 5636 3196 19532 2984 5081 22691 26788 4704 3222 20310 19744 17984 19515 17471 9414 3555

3317 W. Florida 4101 Campus Dr. 2222 Barranca 15006 S La Mirada 23651 Rockfield 30115 Antelope Road 27770 Snta Margarita Pkwy 39557 Los Alamos Rd. 39056 Winchester Rd. 24660 Madison Avenue 4101 Jamboree Rd 2246 S Grand Tb-ph 2n1 2500 N. Main 10551 Carmenita Rd 31677 Hwy. 79 South 41005 Winchester Rd. 14042 Red Hill 3010 El Camino Real Tustin Mktpl 22300 Old Canal Road

Hemet Irvine Irvine La Mirada Lake Forest Menifee Mission Viejo Murrieta Murrieta Murrieta Newport Beach Santa Ana Santa Ana Santa Fe Springs Temecula Temecula Tustin Tustin Yorba Linda

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 Case4:02-cv-05849-PJH Document808 Filed09/24/14 Page1 of 5

1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 FRANCIE E. MOELLER, et al.,

12

Plaintiffs,

13 v.

14 TACO BELL CORP.,

15 Defendant.
16

17

Case No. C 02 5849 PJH NC
CLASS ACTION
[PROPOSED] ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS
Date: September 24, 2014 Time: 9 a.m. Judge: Hon. Phyllis J. Hamilton

18

Having reviewed the Plaintiffs’ Unopposed Motion for an Award of Attorneys’ Fees and

19 Costs and the documents submitted in support thereof, the Court now FINDS, CONCLUDES,

20 and ORDERS as follows:

21

1. Plaintiffs filed this class action case on December 17, 2002, alleging violations

22 of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and the

23 Unruh Civil Rights Act. (“Unruh”), Cal. Civ. Code § 51 et seq. ECF 1. Plaintiffs amended

24 their complaint to assert violations of the California Disabled Persons Act (“CDPA”), Cal. Civ.

25 Code § 54 et seq., in August, 2003. ECF 36. Plaintiffs alleged that Taco Bell corporate

26 restaurants in California contained barriers to customers who use wheelchairs or scooters in

27 violation of those statutes.

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Case4:02-cv-05849-PJH Document808 Filed09/24/14 Page2 of 5

1

2. On February 23, 2004, the Court certified the following class.

2

All individuals with disabilities who use wheelchairs or electric scooters for mobility

who, at any time on or after December 17, 2001, were denied, or are currently being

3

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

facilities, privileges, advantages, or accommodations of California Taco Bell corporate

4

restaurants.

5 Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004). On July 26, 2012, this

6 Court decertified the damages portion of the class originally certified in 2004, but maintained

7 certification of a Rule 23(b)(2) injunctive class. Moeller v. Taco Bell Corp., 2012 WL

8 3070863 (N.D. Cal. July 26, 2012).

9

3. This case has been intensely litigated and has resulted in significant access

10 improvements at over 200 Taco Bell restaurants, a settlement putting in place a system to

11 ensure that those improvements are maintained, and a number of significant legal holdings that

12 strengthen the rights of people with disabilities to accessible places of public accommodation.

13

4. The parties reached a settlement in the matter on April 25, 2014. The

14 Settlement Agreement, ECF 797-1, acknowledges the extensive steps Defendant Taco Bell

15 Corp. (“TBC”) took to remedy barriers in its corporate restaurants in response to the litigation

16 and the important role the Class and Class Counsel have played in promoting and ensuring the

17 accessibility of Taco Bell restaurants, id. ¶ 1.5, and sets forth requirements designed to ensure

18 that such access is maintained, id. ¶ 4. In the Settlement Agreement, TBC agrees to pay

19 $5,375,000 in damages and attorneys’ fees and costs, and agreed to support Class Counsel’s

20 request for attorneys’ fees and costs up to the amount of $5,175,000. Id. ¶ 6.

21

5. On June 4, 2014, this Court granted preliminary approval to the parties’

22 settlement and ordered that Class Counsel file an application for attorneys’ fees on or before

23 August 1, 2014. ECF 798 at 2.

24

6. Plaintiffs have now filed their Unopposed Motion for An Award of Attorneys’

25 Fees and Costs, supported by the declarations of Class Counsel Amy Robertson, Mari Mayeda,

26 Antonio Lawson, and Jocelyn Larkin and expert Linda Dardarian. Ms. Robertson’s declaration

27 attached summary spreadsheets setting forth the number of hours billed, the rates of attorneys

28

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1 who billed more than two percent of the time on the case, and the issues to which the time was

2 devoted.

3

7. These declarations establish the experience, credentials, and rates of Class

4 Counsel, which this Court approves. Indeed, Class Counsel are using rates approved by

5 another Court in this district two years ago. Vallabhapurapu v. Burger King Corp.,

6 3:11-cv-00667-WHA (N.D. Cal.), approved by Judge Alsup in 2012. Id., ECF 238. These

7 rates are thus slightly below market, as they have not increased in two years.

8

8. Ms. Robertson’s declaration and exhibits establish that Class Counsel deducted

9 from their fee calculations time devoted to absent class member damages and the 2012

10 interlocutory appeal. With those deductions, Class Counsel’s fees total $13,742,971.25. To

11 arrive at their lodestar, Class Counsel applied an across-the-board 20% reduction, to arrive at a

12 lodestar of $10,994,377.00. The amount Class Counsel requests in fees -- $5,175,000 -- is less

13 than half of that lodestar, or an overall 60% reduction from their full fees.

14

9. Ms. Robertson’s declaration also attached a summary of Class Counsel’s out-of-

15 pocket costs, showing the types of expenses incurred, and demonstrating that the total was

16 $1,017,408.04.

17

10. In the Settlement Agreement, TBC agreed to pay $5,375,000 in damages and

18 attorneys’ fees and costs, and agreed to support Class Counsel’s request for attorneys’ fees and

19 costs up to the amount of $5,175,000. Even where a settlement agreement provides for fees

20 and a defendant commits to support them, in the class action context, a court must still ensure

21 that the attorney’s fees and costs awarded are “fundamentally fair, adequate, and reasonable.”

22 See Staton v. Boeing, Co., 327 F. 3d 938, 963-64 (9th Cir. 2003). In this case, the amount that

23 Class Counsel agreed to accept is far less than their lodestar, making it eminently fair,

24 reasonable, and adequate for the class.

25

11. Title III of the ADA provides for an award of reasonable attorneys’ fees and

26 costs to prevailing parties, 42 U.S.C. § 12205, as do Unruh and the CDPA, Cal. Civ. Code §§

27 52(b)(3); 54.3(a). “[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney

28 to undertake the representation of a meritorious civil rights case. . . . [T]he lodestar method

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1 yields a fee that is presumptively sufficient to achieve this objective.” Perdue v. Kenny A., 559

2 U.S. 542, 552 (2010) (citations omitted). “[U]nder federal fee-shifting statutes ‘the lodestar

3 approach’ is the guiding light’ in determining a ‘reasonable’ fee. Under that method, the court

4 first determines the appropriate hourly rate for the work performed, and then multiplies that

5 amount by the number of hours properly expended in doing the work.” Antoninetti v. Chipotle

6 Mexican Grill, Inc., 643 F.3d 1165, 1176 (9th Cir. 2010) (citing Perdue.)

7

12. Although this Court must “‘provide a concise but clear explanation of its

8 reasons for the fee award,’ [this] merely obliges the court ‘to give at least some indication of

9 how it arrived at the amount of compensable hours for which fees were awarded to allow for

10 meaningful appellate review.’ The court is not ‘required to set forth an hour-by-hour analysis

11 of the fee request[,] ... [and] when faced with a massive fee application the district court has

12 the authority to make across-the-board percentage cuts either in the number of hours claimed

13 or in the final lodestar figure as a practical means of trimming the fat from a fee application.’”

14 Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995) (citations

15 omitted).

16

13. Here, Class Counsel have voluntarily eliminated all time devoted towards the

17 unsuccessful interlocutory appeal, as well as the class member damages claims, and have

18 further cut their lodestar by a 20% across-the-board reduction as part of their billing judgment.

19 The resulting lodestar of $10,994,377.00 is well supported by applicable precedent. See, e.g.,

20 Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996) (finding that

21 15% across-the-board reduction was appropriate where there was no exercise of billing

22 judgment); Fortson v. Marriott Int’l, Inc., 2013 WL 1832411, at *8 (N.D. Cal. May 1, 2013)

23 (Where “there is no evidence that . . . counsel made any reduction in the hours that it billed,”

24 the “approach that the courts in this district have taken . . . is a ten-percent across-the-board

25 reduction in fees to reflect the ordinary exercise of billing judgment.”). The twenty percent

26 reduction applied by Class Counsel more than accounts for any billing judgment.

27

14. In any event, the actual amount sought by Class Counsel -- $5,175,000 -- is

28 significantly less even than this amount, and is approved as reasonable.

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1

15. Although the calculations above do not take costs into account, the Court has

2 reviewed Exhibit 3 to Ms. Robertson’s declaration and holds that the costs incurred were

3 reasonable as well.

4

16. It is therefore ORDERED that Class Counsel be awarded $5,175,000 in

5 reasonable attorneys’ fees and costs in accordance with the Settlement Agreement.

6

7 IT IS SO ORDERED.

8 9 DATED: __9_/2_4_/_1_4________ 10 11 12

UNITED S ALIFORNIA

OURT NORTH

TATES DISTRICT C
The HonoITraISbSlOe OPRhDyERllEiDs J. Hamilton United States District Court
Judge Phyllis J. Hamilton
ERN DISTRICT OF C

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 Case4:02-cv-05849-PJH Document809 Filed09/24/14 Page1 of 2

1

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3

4

5

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9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 FRANCIE E. MOELLER, et al.,

12

Plaintiffs,

13 v.

14 TACO BELL CORP.,

15 Defendant.
16

Case No. C 02 5849 PJH NC
CLASS ACTION
[PROPOSED] ORDER GRANTING FINAL APPROVAL TO CLASS SETTLEMENT
Date: September 24, 2014 Time: 9:00 a.m. The Honorable Phyllis J. Hamilton Courtroom 3, 3rd Floor

17

18

The parties to this action having entered into a Settlement Agreement and having applied

19 to this Court for preliminary and final approval of the Settlement Agreement and the terms

20 thereof; this Court on June 4, 2014 having granted preliminary approval to the Settlement

21 Agreement, which is attached as Exhibit 1 to this Court’s June 4 Order, and having directed

22 notice of the settlement, its terms, and the applicable procedures and schedules to be provided

23 to class members; this Court having set a final Fairness Hearing for September 24 to determine

24 whether the Settlement Agreement should be granted final approval, pursuant to Federal Rule

25 of Civil Procedure 23(e), as “fair, adequate and reasonable;” and all proposed class members

26 having been given an opportunity to comment on the settlement;

27

28

Case4:02-cv-05849-PJH Document809 Filed09/24/14 Page2 of 2

1

NOW, THEREFORE, IT IS HEREBY ORDERED, upon consideration of the Settlement

2 Agreement, the parties’ briefs, declarations, and oral arguments in support thereof, and the

3 proceedings in this action to date, as follows:

4

1. The Class Notice distributed to Class Members, pursuant to this Court’s order, was

5 accomplished in all material respects, and fully met the requirements of Rule 23 of the Federal

6 Rules of Civil Procedure, due process, and any other applicable law.

7

2. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, this Court grants

8 final approval to the Settlement Agreement. The Court finds that the Settlement Agreement is

9 fair, reasonable, and adequate in all respects, including the attorneys’ fees provisions. The

10 Court confirms the finding in its June 4 Order that the Settlement Agreement is the result of

11 extensive, arms’ length negotiations between the parties after extensive and lengthy litigation.

12 The Court specifically finds that the settlement is rationally related to the strength of plaintiffs’

13 and class members’ claims given the risk, expense, complexity, and duration of further

14 litigation. This Court also finds that the Settlement Agreement is the result of arms-length

15 negotiations between experienced counsel representing the interests of the plaintiffs and

16 defendants, after thorough factual and legal investigation. Staton v. Boeing, 327 F.3d 938, 960

17 (9th Cir. 2003); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).

18

3. The Court further finds that the response of the Class to the settlement supports

19 settlement approval. No Class members have objected to the injunctive relief provided by the

20 settlement. Although two class members objected that the settlement did not provide monetary

21 relief to class members, such relief is not available in this case as a result of this Court’s

22 decision decertifying class monetary relief. The Settlement Agreement does not release class

23 members’ damages claims, and does not prevent class members from bringing their own

24 damages claims.

25 IT IS SO ORDERED.

UNITED S ALIFORNIA

OURT NORTH

26 27 DATED: _9_/_2_4_/1_4_________ 28

TATES DISTRICT C
Honorable PIThIyS SllOisORJD.EHREaDmilton United StatesJudDge Pihsyltlirs iJ.cHtamCiltoon urt

Case No. C 02 05849 PJH NC [Proposed] Order Granting Final Approval to Class Settlement

ERN DISTRICT OF C

Page 2

 
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CAND-ECF
ADRMOP,CLOSED,E-Filing,MEDTERM,PROTO,PRVADR,ProSe,REFSET-JCS,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:02-cv-05849-PJH

Moeller et al v. Taco Bell Corp. Assigned to: Hon. Phyllis J. Hamilton Referred to: Magistrate Judge Nathanael M. Cousins
Magistrate Judge Joseph C. Spero (Settlement) Demand: $0 Case in other court: Ninth Circuit Court of Appeals, 12-17144 Cause: 42:12101 Americans w/ Disabilities Act (ADA)

Date Filed: 12/17/2002 Date Terminated: 09/24/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Special Master Bob Evans

represented by Bob Evans Equal Access 862 Ballow Way San Marcos, CA 92078-5365 PRO SE

Plaintiff Francie E. Moeller

represented by 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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 ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

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 (Inactive) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED
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CAND-ECF 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 ATTORNEY TO BE NOTICED
Ari Reuben Krichiver Fox & Robertson PC 910 - 16th Street Suite 610 Denver, CO 80222 303-595-9700 Fax: 303-595-9705 Email: akrichiver@foxrob.com 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 TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED
Brad Seligman Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510-845-3473 ext 304 Fax: 510-845-3654 Email: bseligman@impactfund.org TERMINATED: 01/08/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510-845-3473 x306 Fax: 510-845-3654 Email: jlarkin@impactfund.org ATTORNEY TO BE NOTICED
Mari Mayeda Attorney at Law
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CAND-ECF

PO Box 5138 Berkeley, CA 94705 510-917-1622 Fax: 510-841-8115 Email: marimayeda@earthlink.net ATTORNEY TO BE NOTICED

Plaintiff Edward Muegge

Sarah Morris Civil Rights Education & Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303-757-7901 Email: smorris@creeclaw.org ATTORNEY TO BE NOTICED
represented by Timothy P. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy F. Robertson (See above for address) ATTORNEY TO BE NOTICED

Andrew Lah (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED

Antonio Michael Lawson (See above for address) ATTORNEY TO BE NOTICED

Ari Reuben Krichiver (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED

Brad Seligman (See above for address) TERMINATED: 01/08/2013 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED

Mari Mayeda

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

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CAND-ECF

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Katherine Corbett

Sarah Morris (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy P. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy F. Robertson (See above for address) ATTORNEY TO BE NOTICED

Andrew Lah (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED

Antonio Michael Lawson (See above for address) ATTORNEY TO BE NOTICED

Ari Reuben Krichiver (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED

Brad Seligman (See above for address) TERMINATED: 01/08/2013 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED

Mari Mayeda (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

Sarah Morris (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox
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Craig Thomas Yates

CAND-ECF Timothy P. Fox represented by (See above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy F. Robertson (See above for address) ATTORNEY TO BE NOTICED
Andrew Lah (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED
Antonio Michael Lawson (See above for address) ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED
Brad Seligman (See above for address) TERMINATED: 01/08/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED
Mari Mayeda (See above for address) ATTORNEY TO BE NOTICED
Sarah Morris (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Taco Bell Corp.
https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

represented by Gregory F. Hurley Sheppard, Mullin, Richter & Hampton LLP 650 Town Center Drive, 4th Floor Fourth Floor Costa Mesa, CA 92626-1993 714-513-5100 Fax: 714-513-5130
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CAND-ECF

Email: GHurley@sheppardmullin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory A. Eurich Holland & Hart LLP 555 17th Street Suite 3200 Denver, CO 80202-3979 303-295-8000 Fax: 303-295-8261 TERMINATED: 07/14/2008 PRO HAC VICE
Jamerson C. Allen Jackson Lewis P.C. 50 California Street, 9th Floor San Francisco, CA 94111-4615 415-394-9400 x5441 Fax: 415-394-9401 Email: allenj@jacksonlewis.com TERMINATED: 07/06/2004
Jeffrey H. Dasteel Skadden Arps Slate Meagher & Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071-3144 213-687-5000 Fax: 213-687-5600 TERMINATED: 01/03/2006 ATTORNEY TO BE NOTICED
Jimmy Goh Holland & Hart LLP 555 17th Street Suite 3200 Denver, CO 80202-3979 303-295-8000 Fax: 303-295-8261 TERMINATED: 07/14/2008 PRO HAC VICE ATTORNEY TO BE NOTICED
John A. Makarewich 1 Glen Bell Way Irvine, CA 92618 949 863 4540 Fax: 949 863 3801 Email: john.makarewich@yum.com ATTORNEY TO BE NOTICED
Michael Chilleen Sheppard Mullin Richter & Hampton LLP
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650 Town Center Drive, 4th Floor Costa Mesa, CA 92626-1993 949-732-6500 Fax: 714-513-5130 Email: MChilleen@sheppardmullin.com

Richard Lewis Deleissegues 743 Puebla St Encinitas, CA 92024 858-344-9125 Email: rdeleissegues@gmail.com ATTORNEY TO BE NOTICED

Richard Hidehito Hikida , Esq. Newport Trial Group, APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 (949) 706-6464 Fax: (949) 706-6469 Email: rhikida@trialnewport.com TERMINATED: 10/03/2012

Roger Leonard Scott Greenberg Traurig LLP 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 949.732.656524 Fax: 949.732.6501 Email: scottro@gtlaw.com TERMINATED: 10/07/2013

Titania Jean Mooney Skadden Arps Slate Meagher & Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071-3144 213-687-5167 Fax: 213-687-5600 TERMINATED: 06/17/2008 ATTORNEY TO BE NOTICED

Interested Party Marie Hill
https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

Thomas P. Howard 245 Century Circle Suite 206 Louisville, CO 80202 303-665-3822 Fax: 303-665-3821 Email: thoward@thomasphowardlaw.com ATTORNEY TO BE NOTICED
represented by Julia Campins Campins Benham-Baker, LLP
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Amicus Attorney Frederick P Nisen V. Miscellaneous Attorney Ronald Elsberry

CAND-ECF

935 Moraga Road, Suite 200 Lafayette, CA 94549 415-373-5333 Fax: 415-373-5334 Email: julia@campinsbenhambaker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ronald Lee Elsberry Disability Rights Legal Center 800 S. Figueroa Street Suite 1120 Los Angeles, CA 90017 213-736-1031 Fax: 213-736-1428 Email: Ronald.Elsberry@lls.edu ATTORNEY TO BE NOTICED

Date Filed 12/17/2002
12/17/2002 12/17/2002 12/17/2002 01/02/2003 01/07/2003
01/13/2003
01/16/2003 01/24/2003

# Docket Text
1 CLASS ACTION COMPLAINT (Summons Issued) against Taco Bell Corp. (Filing Fee: $150.00, receipt number 3342255). Filed by Plaintiffs Katherine Corbett, Francie E. Moeller, Edward Muegge & Craig Thomas Yates. (tn) Additional attachment(s) added on 12/27/2002 (tn, ). Additional attachment(s) added on 12/27/2002 (tn, ). Additional attachment(s) added on 12/27/2002 (tn, ). (Entered: 12/18/2002)
Summons Issued as to Taco Bell Corp. (tn, ) (Entered: 12/18/2002)
2 ADR SCHEDULING ORDER: Case Management Statement due by 4/9/2003. Initial Case Management Conference set for 4:00 p.m. on 4/16/2003. (tn) (Entered: 12/18/2002)
CASE DESIGNATED for Electronic Filing. (tn) (Entered: 12/18/2002)
3 Consent to Proceed Before a U.S. Magistrate Judge by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 01/02/2003)
4 [AMENDED] ADR SCHEDULING ORDER: Case Management Statement due by 5/5/2003. Initial Case Management Conference set for 4:00 p.m. on 5/12/2003. (tn) (Entered: 01/07/2003)
5 AFFIDAVIT of Service for Summons, Complaint, and other initial documents served on Jerome Jones of C.T. Corp. on 12/27/2002, ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 01/13/2003)
6 STIPULATION RE: EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFFS' COMPLAINT by Taco Bell Corp.. (Allen, Jamerson) (Entered: 01/16/2003)
7 Declination to Proceed Before a U.S. Magistrate Judge by Taco Bell Corp. and Request for Reassignment to a District Judge. (Allen, Jamerson) (Entered: 01/24/2003)

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01/24/2003

CAND-ECF
8 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ls, ) (Entered: 01/24/2003)

01/24/2003

9 AMENDED CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ls, ) (Entered: 01/24/2003)

01/27/2003

10 ORDER REASSIGNING CASE. Case reassigned to Judge Martin J. Jenkins for all further proceedings. Judge Bernard Zimmerman no longer assigned to case. Signed by Executive Committee on 01/27/03. (mab, ) (Entered: 01/27/2003)

01/31/2003

11 CLERK'S NOTICE [Reassigned case] Case Management Conference set for 4/15/2003 at 02:00 PM. Case Management Statement due by 4/7/2003. (mat, ) (Entered: 01/31/2003)

02/05/2003

12 TACO BELL CORPORATION'S ANSWER to Complaint by Taco Bell Corp.. (Allen, Jamerson) (Entered: 02/05/2003)

02/05/2003

13 MOTION for Pro Hac Vice admission of attorney Jimmy Goh (fee status pd) ﬁled by Taco Bell Corp.. (slh, ) (Entered: 02/10/2003)

02/05/2003

14 MOTION for Pro Hac Vice admission of attorney Gregory Eurich (fee status pd) ﬁled by Taco Bell Corp.. (slh, ) (Entered: 02/10/2003)

02/05/2003 15 CERTIFICATE OF SERVICE by Taco Bell Corp. re 13 , 14 (slh, ) (Entered: 02/10/2003)

02/12/2003

18 ORDER by Judge Martin J. Jenkins GRANTING defendant's Motion for Pro Hac Vice admission of attorneys Jimmy Goh and Gregory Eurich 13 14 . (slh) (Entered: 02/21/2003)

02/19/2003

16 STIPULATION to Reset Case Management Conference by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (Attachments: # 1 Signature Page (Declarations/Stipulations) of Gregory Eurich# 2 Proposed Order Resetting Case Management Conference)(Fox, Timothy) (Entered: 02/19/2003)

02/20/2003

17 MOTION to Strike 12 Defendant's Second Defense ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 4/22/2003 09:30 AM. (Attachments: # 1 Exhibit # 2 Afﬁdavit of Timothy P. Fox# 3 Proposed Order)(Fox, Timothy) (Entered: 02/20/2003)

02/24/2003

19 ORDER granting re 16 Stipulation Motion to Reset Case Management Conference to April 22, 2003 @ 2:00 p.m. Signed by Judge Martin J. Jenkins on February 24, 2003. (mat, ) (Entered: 02/25/2003)

02/24/2003

Set/Reset Hearings: Case Management Conference set for 4/22/2003 at 02:00 PM. (mat, ) (Entered: 02/25/2003)

03/26/2003

20 NOTICE of need of ADR Phone Conference (Attachments: # 1 Signature Page (Declarations/Stipulations) of Plaintiffs# 2 Signature Page (Declarations/Stipulations) of Defendant & Defense Counsel)(Fox, Timothy) (Entered: 03/26/2003)

03/27/2003

21 CLERK'S NOTICE: ADR Phone Conference scheduled for 4/15/03 at 10:30 a.m. Please note that plaintiff's counsel initiates the call to all parties. (tjs, ) (Entered: 03/27/2003)

04/07/2003

22 RESPONSE in Support re 17 Defendant's Response to Plaintiff's Motion to Strike ﬁled by Taco Bell Corp.. (Allen, Jamerson) (Entered: 04/07/2003)

04/09/2003

23 JOINT CASE MANAGEMENT STATEMENT ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (Attachments: # 1 Signature Page (Declarations/Stipulations) of Defense Counsel)(Fox, Timothy) (Entered: 04/09/2003)

04/15/2003

ADR Phone Conference by RWS (tjs, ) (Entered: 04/17/2003)

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?903616032339519-L_1_0-1

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04/17/2003
04/17/2003
04/21/2003 04/22/2003 04/22/2003 04/22/2003 04/29/2003 05/06/2003 05/19/2003
05/23/2003 06/04/2003
06/24/2003 07/01/2003
08/01/2003 08/04/2003
08/13/2003 08/26/2003 09/15/2003

CAND-ECF
24 CLERK'S NOTICE vacating Plaintiff's Motion to Strike hearing set for April 22, 2003 @ 9:30 a.m. (mat, ) Additional attachment(s) added on 4/17/2003 (mat, ). (Entered: 04/17/2003)
25 CERTIFICATE/PROOF OF SERVICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates of Clerk's Notice Dated 4/17/2003 (Fox, Timothy) (Entered: 04/17/2003)
26 ORDER by Judge Jenkins granting 17 Motion to Strike 12 (mjjlc1, ) (Entered: 04/21/2003)
27 Minute Entry: Initial Case Management Conference held on 4/22/2003 before Martin Jenkins.(Court Reporter Not Reporter.) (mat, ) (Entered: 04/24/2003)
Set/Reset Hearings: Status Conference set for 7/1/2003 02:00 PM. (mat, ) (Entered: 04/24/2003)
28 PRETRIAL ORDER. Signed by Judge Martin J. Jenkins on April 22, 2003. (mat, ) Additional attachment(s) added on 4/24/2003 (mat, ). (Entered: 04/24/2003)
ADR Phone Conference by RWS (tjs, ) (Entered: 04/29/2003)
29 ORDER by Judge Martin J. Jenkins REFERRING CASE to Mediation. (slh) (Entered: 05/13/2003)
30 STIPULATION to Extend Deadline to Conduct Mediation by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Entered: 05/19/2003)
31 ORDER REFERRING CASE to Mediation. Signed by Judge Martin Jenkins on 5/23/2003. (mat, ) (Entered: 05/27/2003)
32 MOTION to Amend/Correct Class Action Complaint ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 8/5/2003 09:30 AM. (Attachments: # 1 Afﬁdavit of Timothy P. Fox# 2 Proposed Order # 3)(Fox, Timothy) (Entered: 06/04/2003)
33 STATUS REPORT by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 06/24/2003)
34 Minute Entry: Status Conference held on 7/1/2003 before Judge Jenkins. Status Conference set for 12/2/2003 02:00 PM. (Court Reporter - NOT reported.) (slh) (Entered: 07/09/2003)
35 ORDER granting 32 Motion to Amend Class Action Complaint. Signed by Judge Martin J. Jenkins on 7/30/2003. (mat, ) (Entered: 08/01/2003)
36 First AMENDED COMPLAINT (Class Action) & Demand for Jury Trial against all defendants. Filed by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 08/04/2003)
37 ANSWER to Amended Complaint by Taco Bell Corp.. (Goh, Jimmy) (Entered: 08/13/2003)
38 CLERK'S NOTICE of appointment of mediator, Gail Killefer (bt, COURT STAFF) (Entered: 08/26/2003)
39 STIPULATION FOR PROTECTIVE ORDER AND [PROPOSED] ORDER by Taco Bell Corp.. (Goh, Jimmy) (Entered: 09/15/2003)

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40 MOTION to Certify Class ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 10/21/2003 09:30 AM. (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

41 Declaration of Timothy P. Fox in Support of 40 Motion to Certify Class ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 40 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

42 Proposed Order re 40 Motion to Certify Class by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

43 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

44 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

45 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

46 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

47 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

48 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

49 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

50 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

51 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

52 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

53 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003

54 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)

09/16/2003 55 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E.

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Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
56 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
57 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
58 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
59 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
60 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
61 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
62 EXHIBITS re 41 Declaration of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 41 ) (Fox, Timothy) (Entered: 09/16/2003)
63 ORDER Regarding 39 Stipulated Protective Order. Signed by Judge Martin J. Jenkins on 9/17/2003. (mat, COURT STAFF) (Entered: 09/18/2003)
64 STIPULATION FOR ONE DAY EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Taco Bell Corp.. (Goh, Jimmy) (Entered: 09/30/2003)
65 Memorandum in Opposition re 40 Plaintiffs' Motion for Class Certiﬁcation ﬁled by Taco Bell Corp.. (Attachments: # 1 Declaration of Jim Goh)(Goh, Jimmy) (Entered: 10/01/2003)
66 STIPULATION TO EXTEND THE DEADLINE FOR PLAINTIFFS TO SUBMIT A REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (Attachments: # 1 Afﬁdavit of Timothy P. Fox# 2 Proposed Order)(Fox, Timothy) (Entered: 10/03/2003)
67 ORDER granting 66 Stipulation. Signed by Judge Martin J. Jenkins on 10/6/2003. (mat, COURT STAFF) (Entered: 10/07/2003)
68 Reply Memorandum to Motion re 40 Class Certiﬁcation ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Entered: 10/08/2003)
69 Declaration of Timothy P. Fox in Support of 68 Plaintiffs' Reply Brief in Support of Their Motion for Class Certiﬁcation ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 68 ) (Fox, Timothy) (Entered: 10/08/2003)

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12/03/2003 12/16/2003 12/18/2003 02/24/2004 03/26/2004

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70 EXHIBITS re 69 Second Decl. of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 69 ) (Fox, Timothy) (Entered: 10/08/2003)
71 EXHIBITS re 69 Second Decl. of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 69 ) (Fox, Timothy) (Entered: 10/08/2003)
72 EXHIBITS re 69 Second Decl. of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 69 ) (Fox, Timothy) (Entered: 10/08/2003)
73 EXHIBITS re 69 Second Decl. of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 69 ) (Fox, Timothy) (Entered: 10/08/2003)
74 EXHIBITS re 69 Second Decl. of Timothy P. Fox ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 69 ) (Fox, Timothy) (Entered: 10/08/2003)
75 NOTICE of Appearance of Antonio M. Lawson by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (slh, COURT STAFF) (Entered: 10/10/2003)
76 SCHEDULING ORDER . Signed by Judge Martin J. Jenkins on 10/14/03. (mjjlc1, ) (Entered: 10/14/2003)
77 MOTION for Pro Hac Vice admission of attorney Amy F. Robertson (fee status: pd) ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (slh, COURT STAFF) Additional attachment(s) added on 10/20/2003 (slh, COURT STAFF). (Entered: 10/15/2003)
78 ORDER by Judge Martin J. Jenkins GRANTING Motion for Pro Hac Vice admission of attorney Amy F. Robertson 77 . (slh, COURT STAFF) (Entered: 10/20/2003)
79 ORDER. Signed by Judge Martin J. Jenkins on 11/22/2003. (mat, COURT STAFF) (Filed on 11/24/2003) (Entered: 11/24/2003)
80 Minute Entry: Motion Hearing held on 12/2/2003 before Martin J. Jenkins (Date Filed: 12/3/2003) re 40 MOTION to Certify Class ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Court Reporter Diane Skillman.) (mat, COURT STAFF) (Date Filed: 12/3/2003) (Entered: 12/03/2003)
81 Brief re 40 Plaintiffs' Supplement to Their Motion for Class Certiﬁcation ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 40 ) (Fox, Timothy) (Filed on 12/3/2003) (Entered: 12/03/2003)
82 STIPULATION to Extend Deadline re Mediation by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 12/16/2003) (Entered: 12/16/2003)
83 ORDER granting 82 Stipulation ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates, Taco Bell Corp.. Signed by Judge Martin J. Jenkins on 12/17/2003. (mat, COURT STAFF) (Filed on 12/18/2003) (Entered: 12/18/2003)
84 ORDER by Judge Martin Jenkins granting 40 Motion for Class Certiﬁcation. (mat, COURT STAFF) (Filed on 2/24/2004) (Entered: 02/24/2004)
85 STIPULATION To Extend the Deadline To Commence Mediation by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates.

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(Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 3/26/2004) (Entered: 03/26/2004)

03/30/2004

86 CLERK'S NOTICE (mat, COURT STAFF) (Filed on 3/30/2004) Additional attachment(s) added on 4/6/2004 (mat, COURT STAFF). (Entered: 04/01/2004)

03/30/2004

Set/Reset Hearings: Status Conference set for 7/6/2004 02:00 PM. (mat, COURT STAFF) (Filed on 3/30/2004) (Entered: 04/01/2004)

03/31/2004

87 ORDER granting 85 Third Stipulation ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates, Taco Bell Corp.. Signed by Judge Martin J. Jenkins on 3/30/2004. (mat, COURT STAFF) (Filed on 3/31/2004) (Entered: 04/01/2004)

06/29/2004

88 NOTICE by Taco Bell Corp. of Substitution of Council and Association of Council (Howard, Thomas) (Filed on 6/29/2004) (Entered: 06/29/2004)

06/30/2004

89 STATUS REPORT Joint Status Conference Statement by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Fox, Timothy) (Filed on 6/30/2004) (Entered: 06/30/2004)

06/30/2004

90 STIPULATION Joint Stipulation to Continue Status Conference by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Signature Page (Declarations/Stipulations) # 2 Proposed Order)(Fox, Timothy) (Filed on 6/30/2004) (Entered: 06/30/2004)

07/06/2004

91 ORDER granting 88 Notice of Substitution of Counsel & Association of Counsel(Other) ﬁled by Taco Bell Corp.. Signed by Judge Martin J. Jenkins on 7/5/2004. (mat, COURT STAFF) (Filed on 7/6/2004) (Entered: 07/06/2004)

07/06/2004

92 ORDER granting 90 Stipulated Motion to Continue the Status Conference, ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Signed by Judge Martin J. Jenkins on 7/5/2004. (mat, COURT STAFF) (Filed on 7/6/2004) (Entered: 07/06/2004)

07/06/2004

Set Deadlines/Hearings: Case Management Statement due by 8/23/2004. Case Management Conference reset for 8/31/2004 02:00 PM. (mat, COURT STAFF) (Filed on 7/6/2004) (Entered: 07/06/2004)

08/23/2004

93 JOINT CASE MANAGEMENT STATEMENT Supplemental and Proposed Order ﬁled by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 8/23/2004) (Entered: 08/23/2004)

08/31/2004

94 Minute Entry: Status Conference held. Further Status Conference set for 1/4/2005 02:00 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 8/31/2004) (Entered: 08/31/2004)

09/14/2004

95 STIPULATION Joint Request for Additional Time to Submit Proposal Concerning Special Master by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 9/14/2004) (Entered: 09/14/2004)

09/21/2004

96 STIPULATION Revised Joint Request for Additional Time to Submit Proposal Concerning Special Master by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 9/21/2004) (Entered: 09/21/2004)

09/23/2004

97 ORDER granting 96 Stipulation, ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Signed by Judge Martin J. Jenkins on 9/23/2004. (mat, COURT STAFF) (Filed on 9/23/2004) (Entered: 09/23/2004)

09/28/2004

98 Proposed Order Appointing Special Master by Taco Bell Corp.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Mooney, Titania) (Filed on 9/28/2004)

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10/01/2004

99 STIPULATION re 98 Proposed Order Joint Submission of Substitute Exhibit To [Proposed] Order Appointing Special Master by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit Exhibit B to [Proposed] Order Appointing Special Master)(Robertson, Amy) (Filed on 10/1/2004) (Entered: 10/01/2004)

10/05/2004

101 ORDER by Judge Martin J. Jenkins appointing Special Master Bob Evans. (slh, COURT STAFF) (Filed on 10/5/2004) Additional attachment(s) added on 10/15/2004 (slh, COURT STAFF). (Entered: 10/08/2004)

10/05/2004

102 Joint Submission of Substitute Exhibit to Order Appointing Special Master 101 by Katherine Corbett, Francie E. Moeller, Edward Muegge, Taco Bell Corp., Craig Thomas Yates. (slh, COURT STAFF) (Filed on 10/5/2004) Additional attachment(s) added on 10/15/2004 (slh, COURT STAFF). (Entered: 10/08/2004)

10/08/2004

100 ASSOCIATION of Counsel by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Fox, Timothy) (Filed on 10/8/2004) (Entered: 10/08/2004)

10/13/2004

103 STIPULATION and [Proposed] Order Extending Page Limits for Defendant Taco Bell's Motion for Modiﬁcation of Class Deﬁnition by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/13/2004) (Entered: 10/13/2004)

10/14/2004

104 ORDER granting 103 Stipulation ﬁled by Taco Bell Corp.. Signed by Judge Martin Jenkins on 10/14/2004. (mat, COURT STAFF) (Filed on 10/14/2004) (Entered: 10/14/2004)

10/19/2004

105 MOTION for Partial Summary Judgment ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 11/30/2004 09:30 AM. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 10/19/2004) (Entered: 10/19/2004)

10/19/2004

106 Declaration of Robertson, Amy ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit Ex. 1 - Store 112# 2 Exhibit Ex. 2 - Store 757# 3 Exhibit Ex. 3 - Store 991# 4 Exhibit Ex. 4 - Store 2423# 5 Exhibit Ex. 5 Store 2755# 6 Exhibit Ex. 6 - Store 2778# 7 Exhibit Ex. 7 - Store 2801# 8 Exhibit Ex. 8 Store 3007# 9 Exhibit Ex. 9 - Store 3053# 10 Exhibit Ex. 10 - Store 3055# 11 Exhibit Ex. 11 - Store 3132# 12 Exhibit Ex. 12 - Store 3579# 13 Exhibit Ex. 13 - Store 4704# 14 Exhibit Ex. 14 - Store 5539# 15 Exhibit Ex. 15 - Store 15614# 16 Exhibit Ex. 16 - Store 16909# 17 Exhibit Ex. 17 - Store 18687# 18 Exhibit Ex. 18 - Store 19509# 19 Exhibit Ex. 19 - Store 21018# 20 Exhibit Ex. 20# 21 Exhibit Ex. 21# 22 Exhibit Ex. 22# 23 Exhibit Ex. 23)(Fox, Timothy) (Filed on 10/19/2004) (Entered: 10/19/2004)

10/19/2004

107 Appendix re 105 ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit Ex. A# 2 Exhibit Ex. B# 3 Exhibit Ex. C# 4 Exhibit Ex. D, part 1# 5 Exhibit Ex. D, part 2# 6 Exhibit Ex. E, part 1# 7 Exhibit Ex. E, part 2# 8 Exhibit Ex. F# 9 Exhibit Ex. G# 10 Exhibit Ex. H)(Related document(s) 105 ) (Fox, Timothy) (Filed on 10/19/2004) (Entered: 10/19/2004)

10/19/2004 108 MOTION to Amend/Correct Answer ﬁled by Taco Bell Corp.. Motion Hearing set for 11/30/2004 09:30 AM. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)

10/19/2004 109 Proposed Order Granting Defendant's Motion for Leave to Amend Answer by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)

10/19/2004

110 MOTION to Amend/Correct Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. Motion Hearing set for 11/30/2004 09:30 AM. (Mooney,

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Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
111 Request for Judicial Notice in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition, Part 1 ﬁled by Taco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9)(Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
112 Request for Judicial Notice in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition, Part 2 ﬁled by Taco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
113 Declaration of Jaime de Beers in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
114 Declaration of Manny Herrback in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
115 Declaration of Bruce Bradtmiller, Ph.D. in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
116 Declaration of Alicia M. Koontz in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. (Attachments: # 1 # 2)(Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
117 Declaration of Jeffrey H. Dasteel in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled by Taco Bell Corp.. (Attachments: # 1 # 2 # 3)(Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
118 Proposed Order Granting Defendant's Motion for Modiﬁcation of Class Deﬁnition by Taco Bell Corp.. (Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
119 Declaration of Jeffrey H.Dasteel in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition, Part 2 ﬁled by Taco Bell Corp.. (Attachments: # 1)(Mooney, Titania) (Filed on 10/19/2004) (Entered: 10/19/2004)
120 NOTICE by Taco Bell Corp. Notice of Errata re: Declaration of Manny Herrback in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition (Mooney, Titania) (Filed on 10/20/2004) (Entered: 10/20/2004)
121 CLERK'S NOTICE continuing Motions hearing. Motions Hearing reset for 12/7/2004 09:30 AM. (mat, COURT STAFF) (Filed on 10/21/2004) (Entered: 10/21/2004)
122 Memorandum in Opposition to Defendant's Motion for Modiﬁcation of Class Deﬁnition 110 ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 11/9/2004) Modiﬁed on 11/10/2004 (slh, COURT STAFF). (Entered: 11/09/2004)
123 Statement of Non-Opposition to Defendant's Motion for Leave to Amend Answer ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 11/9/2004) (Entered: 11/09/2004)
124 Memorandum in Opposition re 105 MOTION for Partial Summary Judgment and Conditional Cross-Motion for Partial Summary Judgment ﬁled by Taco Bell Corp.. (Mooney, Titania) (Filed on 11/9/2004) (Entered: 11/09/2004)
125 Declaration of T.Jean Mooney in Support of 124 Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment and Conditional Cross-Motion for Partial

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Summary Judgment ﬁled by Taco Bell Corp.. (Related document(s) 124 ) (Mooney, Titania) (Filed on 11/9/2004) (Entered: 11/09/2004)
126 Declaration of R. David Allen in Support of 124 Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment and Conditional Cross-Motion for Partial Summary Judgment ﬁled by Taco Bell Corp.. (Related document(s) 124 ) (Mooney, Titania) (Filed on 11/9/2004) (Entered: 11/09/2004)
127 Declaration of Ronda J. McKaig in Support of 124 Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment and Conditional Cross-Motion for Partial Summary Judgment ﬁled by Taco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9)(Related document(s) 124 ) (Mooney, Titania) (Filed on 11/9/2004) (Entered: 11/09/2004)
128 Proposed Order re 124 Granting Defendant's Conditional Cross-Motion for Partial Summary Judgment by Taco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4)(Mooney, Titania) (Filed on 11/9/2004) (Entered: 11/09/2004)
129 Joint MOTION To set brieﬁng schedule for defendant's conditional cross-motion for summary judgment ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 12/7/2004 09:30 AM. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 11/12/2004) (Entered: 11/12/2004)
130 ORDER granting 129 Joint MOTION To set brieﬁng schedule for defendant's conditional cross-motion for summary judgment ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. Signed by Judge Martin J. Jenkins on 11/15/2004. (mat, COURT STAFF) (Filed on 11/15/2004) (Entered: 11/15/2004)
131 Reply Memorandum re 110 MOTION to Amend/Correct Defendant's Motion for Modiﬁcation of Class Deﬁnition in Support of Its Motion for Modiﬁcation of Class Deﬁnition ﬁled byTaco Bell Corp.. (Mooney, Titania) (Filed on 11/16/2004) (Entered: 11/16/2004)
132 Reply Memorandum re 105 MOTION for Partial Summary Judgment ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
133 Request for Judicial Notice Supplemental Request for Judicial Notice in Support of Defendant's Motion for Modiﬁcation of Class Deﬁnition ﬁled byTaco Bell Corp.. (Mooney, Titania) (Filed on 11/16/2004) (Entered: 11/16/2004)
134 Declaration in Support of 132 Reply Memorandum Second Declaration of Amy F. Robertson ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit Exhibit 1 to Second Robertson Declaration# 2 Exhibit Exhibit 2 to Second Robertson Declaration# 3 Exhibit Exhibit 3 to the Second Robertson Declaration# 4 Exhibit Exhibit 4 to the Second Robertson Declaration# 5 Exhibit Exhibit 5 to the Second Robertson Declaration)(Related document(s) 132 ) (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
135 Declaration in Support of 132 Reply Memorandum Declaration of Kendra L. Tanacea ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Related document(s) 132 ) (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
136 Proposed Order re 132 Reply Memorandum [Revised Proposed] Order Granting Plaintiffs' Motion for Partial Summary Judgment by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Appendix Appendix to

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11/19/2004 11/22/2004
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[Revised Proposed] Order Granting Plaintiffs' Motion for Partial Summary Judgment) (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
137 Memorandum in Opposition to Defendant's Conditional Cross-Motion for Partial Summary Judgment ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
138 Declaration in Support of 137 Memorandum in Opposition Third Robertson Declaration ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit Exhibit 1 to Third Robertson Declaration# 2 Exhibit Exhibit 2 to Third Robertson Declaration# 3 Exhibit Exhibit 3 (part 1) to Third Robertson Declaration# 4 Exhibit Exhibit 3 (part 2) to Third Robertson Declaration)(Related document(s) 137 ) (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
139 Proposed Order re 137 Memorandum in Opposition to Defendant's Conditional CrossMotion for Partial Summary Judgment by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 11/16/2004) (Entered: 11/16/2004)
140 STIPULATION and [Proposed] Order Extending Deadline for Joint Statement of Undisputed Facts to November 22, 2004 by Taco Bell Corp.. (Mooney, Titania) (Filed on 11/19/2004) (Entered: 11/19/2004)
141 Reply Memorandum in Support of Conditional Cross Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Mooney, Titania) (Filed on 11/19/2004) (Entered: 11/19/2004)
142 Declaration of T. Jean Mooney Attaching Amended Exhibits A and B in Support of Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment and Conditional Cross-Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4)(Mooney, Titania) (Filed on 11/19/2004) (Entered: 11/19/2004)
143 Proposed Order Amended [Proposed] Order Granting Defendant's Conditional CrossMotion for Partial Summary Judgment by Taco Bell Corp.. (Attachments: # 1 # 2 # 3 # 4) (Mooney, Titania) (Filed on 11/19/2004) (Entered: 11/19/2004)
144 Statement of Facts Joint Statement of Undisputed Facts ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit Exhibit A to Joint Statement of Undisputed Facts# 2 Exhibit Exhibit B (part 1) to Joint Statement of Undisputed Facts# 3 Exhibit Exhibit B (part 2) to Joint Statement of Undisputed Facts)(Robertson, Amy) (Filed on 11/22/2004) (Entered: 11/22/2004)
145 ORDER granting 140 Stipulation ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 11/22/2004. (mat, COURT STAFF) (Filed on 11/22/2004) (Entered: 11/23/2004)
146 ORDER by Judge Martin J. Jenkins granting 108 Motion For Leave to Amend Answer. (mat, COURT STAFF) (Filed on 11/29/2004) (Entered: 11/29/2004)
147 CLERK'S NOTICE. (mat, COURT STAFF) (Filed on 11/29/2004) (Entered: 11/29/2004)
148 ORDER by Judge Martin J. Jenkins denying 110 Motion for Modiﬁcation of Class Deﬁnition; (mat, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/07/2004)
149 Minute Entry: Telephone Conference (Date Filed: 12/8/2004). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 12/8/2004) (Entered: 12/09/2004)
Set Deadlines/Hearings: Status Conference re: Motions set for 2/8/2005 02:00 PM. (mat,

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COURT STAFF) (Filed on 12/8/2004) (Entered: 12/09/2004)

12/10/2004

150 MOTION to Withdraw Plaintiff's Motion for Partial Summary Judgment ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 12/10/2004) (Entered: 12/10/2004)

12/10/2004

151 NOTICE by Taco Bell Corp. Defendant's Withdrawal of Conditional Cross-Motion for Partial Summary Judgment (Mooney, Titania) (Filed on 12/10/2004) (Entered: 12/10/2004)

12/13/2004

152 ORDER granting 150 MOTION to Withdraw Plaintiff's Motion for Partial Summary Judgment ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. Signed by Judge Martin J. Jenkins on 12/13/2004. (mat, COURT STAFF) (Filed on 12/13/2004) (Entered: 12/14/2004)

12/13/2004

153 ORDER granting 151 Defendant's Withdrawal of Conditional Cross-Motion for Partial Summary Judgment ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 12/13/2004. (mat, COURT STAFF) (Filed on 12/13/2004) (Entered: 12/14/2004)

12/21/2004 154 AFFIDAVIT of Ronda J. McKaig in Support of Taco Bell Corp.'s Amended Answer by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 12/21/2004) (Entered: 12/21/2004)

12/21/2004 155 First Amended ANSWER to Amended Complaint byTaco Bell Corp.. (Dasteel, Jeffrey) (Filed on 12/21/2004) (Entered: 12/21/2004)

01/03/2005 156 ORDER RELATING CASE (04-4571). Signed by Judge Martin J. Jenkins on 12/28/2004. (mat, COURT STAFF) (Filed on 1/3/2005) (Entered: 01/03/2005)

02/01/2005 157 STATUS REPORT Joint Status Conference Statement by Taco Bell Corp.. (Mooney, Titania) (Filed on 2/1/2005) (Entered: 02/01/2005)

02/08/2005 158 Minute Entry: Status Conference (Date Filed: 2/8/2005). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 2/8/2005) (Entered: 02/11/2005)

02/23/2005

159 Proposed Pretrial Order Joint Pre-Trial Brieﬁng Schedule and [Proposed] Order by Taco Bell Corp., Taco Bell Corp.. (Mooney, Titania) (Filed on 2/23/2005) (Entered: 02/23/2005)

02/24/2005 160 Minute Entry: Telephone Conference (Date Filed: 2/24/2005). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 2/24/2005) (Entered: 02/25/2005)

02/25/2005

169 ORDER granting 159 Joint Pre-Trial Brieﬁng Schedule ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 2/26/2005. (mat, COURT STAFF) (Filed on 2/25/2005) (Entered: 03/09/2005)

02/28/2005

161 Brief Defendant's Opening Brief on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule ﬁled byTaco Bell Corp.. (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005 162 Declaration of Ronda J. McKaig in Support of Defendant's Opening Brief ﬁled byTaco Bell Corp.. (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005 163 Proposed Order on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005

164 REVISED MOTION for Partial Summary Judgment ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 6/3/2005 09:30 AM. (Robertson, Amy) (Filed on 2/28/2005) Modiﬁed on 3/1/2005 (slh, COURT STAFF). (Entered: 02/28/2005)

02/28/2005 165 EXHIBITS Joint Submission of Substitute Exhibit to the October 5, 2004 Order

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Appointing Special Master, Part 1 of 2 ﬁled byTaco Bell Corp.. (Attachments: # 1) (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005

166 Proposed Order re 164 MOTION for Partial Summary Judgment by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005

167 EXHIBITS re 165 Exhibits Joint Submission of Substitute Exhibit to the October 5, 2004 Order Appointing Special Master, Part 2 of 3 ﬁled byTaco Bell Corp.. (Attachments: # 1) (Related document(s) 165 ) (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

02/28/2005

168 EXHIBITS re 167 Exhibits, Joint Submission of Subsitute Exhibit to the October 5, 2004 Order Appointing Special Master, Part 3 of 3 ﬁled byTaco Bell Corp.. (Attachments: # 1) (Related document(s) 167 ) (Dasteel, Jeffrey) (Filed on 2/28/2005) (Entered: 02/28/2005)

04/15/2005

170 Memorandum in Opposition to Defendant's Opening Brief on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/15/2005) (Entered: 04/15/2005)

04/15/2005

171 AFFIDAVIT in Opposition Declaration of Amy F. Robertson in Opposition to Defendant's Opening Brief on Issues 1(c) and (d) of the Joint Pre-Trial Brieﬁng Schedule ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/15/2005) (Entered: 04/15/2005)

04/15/2005

172 Proposed Order on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/15/2005) (Entered: 04/15/2005)

04/15/2005 173 Memorandum in Opposition to Plainitffs' Revised Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Mooney, Titania) (Filed on 4/15/2005) (Entered: 04/15/2005)

04/18/2005 174 Proposed Order Denying Plainitffs' Revised Motion for Partial Summary Judgment by Taco Bell Corp.. (Mooney, Titania) (Filed on 4/18/2005) (Entered: 04/18/2005)

04/28/2005 175 STIPULATION for Protective Order and [Proposed] Order by Taco Bell Corp.. (Mooney, Titania) (Filed on 4/28/2005) (Entered: 04/28/2005)

04/29/2005

176 Reply Memorandum Plaintiffs' Reply Brief in Support of Revised Motion for Partial Summary Judgment ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/29/2005) (Entered: 04/29/2005)

04/29/2005

177 Declaration of Amy F. Robertson in Support of 176 Reply Memorandum ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Related document(s) 176 ) (Robertson, Amy) (Filed on 4/29/2005) (Entered: 04/29/2005)

04/29/2005 178 Reply Memorandum on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule ﬁled byTaco Bell Corp.. (Dasteel, Jeffrey) (Filed on 4/29/2005) (Entered: 04/29/2005)

04/29/2005

179 Declaration in Support of 178 Reply Memorandum on Issues 1(c) and 1(d) of the Joint Pre-Trial Brieﬁng Schedule ﬁled byTaco Bell Corp.. (Related document(s) 178 ) (Dasteel, Jeffrey) (Filed on 4/29/2005) (Entered: 04/29/2005)

05/02/2005

180 ORDER granting 175 Stipulation for Protective Order ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 5/2/2005. (mat, COURT STAFF) (Filed on 5/2/2005) (Entered: 05/04/2005)

05/18/2005

181 CLERK'S NOTICE Continuing Motion Hearing. Plaintiffs' Motion for Partial Summary Judgment hearing reset for 6/22/2005 02:30 PM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 5/18/2005) (Entered: 05/18/2005)

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05/20/2005

182 CLERK'S NOTICE Continuing Plaintiffs' Motion for Partial Summary Judgment hearing. Motion hearing reset for 6/29/2005 02:30 PM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 5/20/2005) (Entered: 05/20/2005)

06/14/2005

183 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing reset for 6/29/2005 10:00 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 6/14/2005) (Entered: 06/14/2005)

06/28/2005

184 CLERK'S NOTICE Continuing Plaintiffs' Motion for Partial Summary Judgement hearing. Motion Hearing reset for 7/15/2005 10:00 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 6/28/2005) (Entered: 06/28/2005)

07/15/2005

185 Minute Entry: Motion Hearing held on 7/15/2005 before Martin J. Jenkins (Date Filed: 7/15/2005) re 164 MOTION for Partial Summary Judgment ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,, 105 MOTION for Partial Summary Judgment ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. (Court Reporter Leo Mankiewicz.) (mat, COURT STAFF) (Date Filed: 7/15/2005) (Entered: 07/15/2005)

07/28/2005 186 STIPULATION Joint Stipulation re Modiﬁcation of Discovery Dates by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 7/28/2005) (Entered: 07/28/2005)

08/01/2005 187 ORDER granting 186 Stipulation ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 8/1/2005. (mat, COURT STAFF) (Filed on 8/1/2005) (Entered: 08/02/2005)

08/10/2005 188 ORDER. Signed by Judge Martin J. Jenkins on 8/10/2005. (mat, COURT STAFF) (Filed on 8/10/2005) (Entered: 08/10/2005)

09/20/2005 189 TRANSCRIPT of Proceedings held on 7/15/05 before Judge Jenkins. Court Reporter: Leo Mankiewciz. (slh, COURT STAFF) (Filed on 9/20/2005) (Entered: 09/22/2005)

11/11/2005

190 STIPULATION Joint Stipulation re: Temporary Extension of Deadlines by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 11/11/2005) (Entered: 11/11/2005)

11/16/2005

191 ORDER granting 190 Stipulation ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 11/16/2005. (mat, COURT STAFF) (Filed on 11/16/2005) (Entered: 11/16/2005)

11/28/2005

192 STIPULATION Joint Stipulation re: Modiﬁcation of Cut-Off Dates by Taco Bell Corp.. (Dasteel, Jeffrey) (Filed on 11/28/2005) (Entered: 11/28/2005)

12/02/2005

193 ORDER granting 192 Stipulation ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 11/29/2005. (mat, COURT STAFF) (Filed on 12/2/2005) (Entered: 12/05/2005)

01/03/2006

194 ORDER by Judge Martin J. Jenkins for substitution of attorney: Attorney Gregory F. Hurley added for Taco Bell Corp. Attorney Jeffrey H. Dasteel terminated. (slh, COURT STAFF) (Filed on 1/3/2006) (Entered: 01/04/2006)

01/27/2006

195 STIPULATION Motion TO SET A CASE MANAGEMENT CONFERENCE ON FEBRUARY 14, 2006, AT 2 P.M. by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 1/27/2006) (Entered: 01/27/2006)

02/01/2006

196 ORDER granting 195 Stipulation ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates, Case Management Conference set for 2/14/2006 02:00 PM. Joint Statement due 2/7/2006.. Signed by Judge Martin J. Jenkins on 2/1/2006. (mat, COURT STAFF) (Filed on 2/1/2006) (Entered: 02/01/2006)

02/07/2006 197 JOINT CASE MANAGEMENT STATEMENT ﬁled by Taco Bell Corp.. (Hikida,

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Richard) (Filed on 2/7/2006) (Entered: 02/07/2006)
198 ERRATA re 197 Case Management Statement (Joint) by Taco Bell Corp., Taco Bell Corp.. (Attachments: # 1 Errata Corrected Joint Case Management Statement)(Hikida, Richard) (Filed on 2/8/2006) (Entered: 02/08/2006)
199 Minute Entry: Further Case Management Conference held on 2/14/2006 before Martin J. Jenkins (Date Filed: 2/14/2006). Further Case Management Conference specially set for 5/18/2006 02:00 PM. (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 2/14/2006) (Entered: 02/15/2006)
200 STIPULATION Joint Stipulation re Modiﬁcation of Cut-Off Dates and [Proposed] Order by Taco Bell Corp.. (Hikida, Richard) (Filed on 2/17/2006) (Entered: 02/17/2006)
201 ORDER granting 200 Joint Stipulation re: Modiﬁcation of Cut-Off Dates ﬁled by Taco Bell Corp., Discovery due by 9/15/2006. Status Conference set for 5/18/2006 02:00 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Martin J. Jenkins on 2/23/2006. (mat, COURT STAFF) (Filed on 2/23/2006) (Entered: 02/24/2006)
202 STIPULATION Stipulated Motion to Continue the Status Conference Currently Set for May 18, 2006 and to Re-Set Pre-Trial Dates by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 4/19/2006) (Entered: 04/19/2006)
203 ORDER granting 202 Stipulation, ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. Signed by Judge Martin J. Jenkins on 4/25/2006. (mat, COURT STAFF) (Filed on 4/25/2006) (Entered: 04/26/2006)
204 Joint MOTION to Continue the Status Conference Currently Set for July 18, 2006 ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 7/11/2006) (Entered: 07/11/2006)
205 ORDER by Judge Martin J. Jenkins granting 204 Motion to Continue Status Conference. (mat, COURT STAFF) (Filed on 7/11/2006) (Entered: 07/11/2006)
206 STATUS REPORT Joint Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 8/30/2006) (Entered: 08/30/2006)
207 Minute Entry: Status Conference (Date Filed: 9/5/2006). Further Status Conference set for 1/24/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco. (Court Reporter Katherine Powell.) (mat, COURT STAFF) (Date Filed: 9/5/2006) (Entered: 09/07/2006)
208 STIPULATION JOINT SUBMISSION OF PROPOSED ORDER by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 9/15/2006) (Entered: 09/15/2006)
209 Scheduling ORDER. Status Conference set for 1/24/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco. Joint status conference statement due 1/16/2007. Signed by Judge Martin J. Jenkins on 9/19/2006. (mat, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/20/2006)
212 TRANSCRIPT of Proceedings held on 9/5/06 before Judge Jenkins. Court Reporter: Katherine Powell. (slh, COURT STAFF) (Filed on 9/20/2006) (Entered: 09/26/2006)
210 STIPULATION Joint Stipulation to Continue Deadline to File Motion for Leave to Join Third Parties and Stay Remainder of Pretrial Dates by Taco Bell Corp.. (Hikida, Richard) (Filed on 9/21/2006) (Entered: 09/21/2006)

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211 Proposed Order Proposed Order to Continue Deadline to File Motion for Leave to Join Third Parties and Stay Remainder of Pretrial Dates by Taco Bell Corp.. (Hikida, Richard) (Filed on 9/21/2006) (Entered: 09/21/2006)

10/03/2006 213 ORDER granting 210 Stipulation ﬁled by Taco Bell Corp.,. Signed by Judge Martin J. Jenkins on 10/3/2006. (mat, COURT STAFF) (Filed on 10/3/2006) (Entered: 10/03/2006)

11/06/2006

214 MOTION of Ari R. Krichiver for leave to appear in Pro Hac Vice (fee paid; receipt no. 3392064) ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (slh, COURT STAFF) (Filed on 11/6/2006) (Entered: 11/06/2006)

11/08/2006

215 ORDER by Judge Martin J. Jenkins GRANTING 214 Motion for Pro Hac Vice admission of attorney Ari R. Krichiver. (slh, COURT STAFF) (Filed on 11/8/2006) (Entered: 11/09/2006)

12/14/2006

216 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates of Plaintiffs' Submission of Special Master Reports (Attachments: # 1 Exhibit 1 - Store 18# 2 Exhibit 2 - Store 30# 3 Exhibit 3 - Store 76# 4 Exhibit 4 - Store 99# 5 Exhibit 5 Store 106# 6 Exhibit 6 - Store 112# 7 Exhibit 7 - Store 124# 8 Exhibit 8 - Store 137# 9 Exhibit 9 - Store 158# 10 Exhibit 10 - Store 176)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006

217 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 11 - Store 283 (Attachments: # 1 Exhibit 12 - Store 459# 2 Exhibit 13 - Store 526# 3 Exhibit 14 - Store 567# 4 Exhibit 15 - Store 757# 5 Exhibit 16 - Store 829# 6 Exhibit 17 - Store 863# 7 Exhibit 18 - Store 955# 8 Exhibit 19 - Store 991)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006

218 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 20 part 1 - Store 1034 (Attachments: # 1 Exhibit 20 part 2 - Store 1034# 2 Exhibit 21 - Store 1496# 3 Exhibit 22 - Store 1603# 4 Exhibit 23 - Store 1687# 5 Exhibit 24 - Store 1827# 6 Exhibit 25 - Store 1934# 7 Exhibit 26 - Store 2007# 8 Exhibit 27 part 1 - Store 2241# 9 Exhibit 27 part 2 - Store 2241# 10 Exhibit 28 - Store 2297)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006

219 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 29 - Store 2423 (Attachments: # 1 Exhibit 30 part 1 - Store 2700# 2 Exhibit 30 part 2 - Store 2700# 3 Exhibit 31 - Store 2755# 4 Exhibit 32 - Store 2756# 5 Exhibit 33 - Store 2778# 6 Exhibit 34 - Store 2801# 7 Exhibit 35 - Store 2812# 8 Exhibit 36 - Store 2848# 9 Exhibit 37 - Store 2861# 10 Exhibit 38 Store 2910)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006

220 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 39 - Store 2914 (Attachments: # 1 Exhibit 40 - Store 2915# 2 Exhibit 41 - Store 2918# 3 Exhibit 42 part 1 - Store 2930# 4 Exhibit 42 part 2 - Store2930# 5 Exhibit 43 - Store 2933# 6 Exhibit 44 - Store 2961# 7 Exhibit 45 part 1 - Store 2968# 8 Exhibit 45 part 2 - Store 2968# 9 Exhibit 46 - Store 2971# 10 Exhibit 47 - Store 2984)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006

221 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 48 - Store 3007 (Attachments: # 1 Exhibit 49 part 1 - Store 3027# 2 Exhibit 49 part 2 - Store 3027# 3 Exhibit 50 - Store 3046# 4 Exhibit 51 - Store 3049# 5 Exhibit 52 - Store 3053# 6 Exhibit 53 - Store 3055# 7 Exhibit 54 - Store 3064# 8 Exhibit 55 - Store 3070# 9 Exhibit 56 - Store 3071)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)

12/14/2006 222 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 57 - Store 3077 (Attachments: # 1 Exhibit

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58 part 1 - Store 3078# 2 Exhibit 58 part 2 - Store 3078# 3 Exhibit 59 - Store 3079# 4 Exhibit 60 - Store 3083# 5 Exhibit 61 - Store 3089# 6 Exhibit 62 - Store 3090# 7 Exhibit 63 - Store 3096# 8 Exhibit 64 - Store 3112# 9 Exhibit 65 - Store 3117# 10 Exhibit 66 Store 3119)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
223 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 67 - Store 3125 (Attachments: # 1 Exhibit 68 - Store 3128# 2 Exhibit 69 - Store 3129# 3 Exhibit 70 - Store 3130# 4 Exhibit 71 Store 3132# 5 Exhibit 72 - Store 3136# 6 Exhibit 73 - Store 3137# 7 Exhibit 74 - Store 3145# 8 Exhibit 75 - Store 3152# 9 Exhibit 76 - Store 3160# 10 Exhibit 77 - Store 3184) (Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
224 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 78 - Store 3196 (Attachments: # 1 Exhibit 79 - Store 3207# 2 Exhibit 80 - Store 3208# 3 Exhibit 81 - Store 3209# 4 Exhibit 82 Store 3222# 5 Exhibit 83 part 1 - Store 3241# 6 Exhibit 83 part 2 - Store 3241# 7 Exhibit 84 - Store 3390# 8 Exhibit 85 - Store 3398# 9 Exhibit 86 - Store 3420)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
225 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 87 part 1 - Store 3471 (Attachments: # 1 Exhibit 87 part 2 - Store 3471# 2 Exhibit 88 - Store 3473# 3 Exhibit 89 - Store 3498# 4 Exhibit 90 - Store 3555# 5 Exhibit 91 - Store 3579# 6 Exhibit 92- Store 3904# 7 Exhibit 93 part 1 - Store 3948# 8 Exhibit 93 part 2 - Store 3948# 9 Exhibit 94 - Store 4027# 10 Exhibit 95 - Store 4034)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
226 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 96 - Store 4054 (Attachments: # 1 Exhibit 97 - Store 4168# 2 Exhibit 98 - Store 4192# 3 Exhibit 99 - Store 4204# 4 Exhibit 100 part 1 - Store 4211# 5 Exhibit 100 part 2 - Store 4211# 6 Exhibit 101 part 1 - Store 4284# 7 Exhibit 101 part 2 - Store 4284# 8 Exhibit 102 - Store 4311# 9 Exhibit 103 - Store 4325# 10 Exhibit 104 - Store 4342)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
227 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 105 - Store 4343 (Attachments: # 1 Exhibit 106 - Store 4355# 2 Exhibit 107 - Store 4356# 3 Exhibit 108 - Store 4466# 4 Exhibit 109 - Store 4510# 5 Exhibit 110 - Store 4518# 6 Exhibit 111 part 1 - Store 4558# 7 Exhibit 111 part 2 - Store 4558# 8 Exhibit 112 - Store 4578# 9 Exhibit 113 - Store 4586# 10 Exhibit 114 - Store 4611)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
228 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 115 part 1 - Store 4617 (Attachments: # 1 Exhibit 115 part 2 - Store 4617# 2 Exhibit 116 - Store 4622# 3 Exhibit 117 part 1 - Store 4633# 4 Exhibit 117 part 2 - Store 4633# 5 Exhibit 118 - Store 4661# 6 Exhibit 119 Store 4704# 7 Exhibit 120 - Store 4799# 8 Exhibit 121 - Store 4862# 9 Exhibit 122 Store 4951# 10 Exhibit 123 - Store 5019)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
229 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 124 - Store 5081 (Attachments: # 1 Exhibit 125 - Store 5138# 2 Exhibit 126 - Store 5223# 3 Exhibit 127 part 1 - STore 5259# 4 Exhibit 127 part 2 - Store 5259# 5 Exhibit 128 - Store 5355# 6 Exhibit 129 - Store 5512# 7 Exhibit 130 - Store 5513# 8 Exhibit 131 - Store 5539# 9 Exhibit 132 - Store 5570# 10 Exhibit 133 - Store 5636)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
230 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates

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re 216 Notice (Other), Notice (Other) Exhibit 134 - Store 5641 (Attachments: # 1 Exhibit 135 - Store 9407# 2 Exhibit 136 - Store 9414# 3 Exhibit 137 - Store 9417# 4 Exhibit 138 - Store 9427# 5 Exhibit 139 - Store 9454# 6 Exhibit 140 - Store 9489# 7 Exhibit 141 Store 15319# 8 Exhibit 142 - Store 15362# 9 Exhibit 143 - Store 15379# 10 Exhibit 144 Store 15455)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
231 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 145 Store 15507 (Attachments: # 1 Exhibit 146 - Store 15508# 2 Exhibit 147 - Store 15570# 3 Exhibit 148 - Store 15573# 4 Exhibit 149 - Store 15614# 5 Exhibit 150 part 1 - Store 15625# 6 Exhibit 150 part 2 - Store 15625# 7 Exhibit 151 part 1 - Store 15723# 8 Exhibit 151 part 2 - Store 15723# 9 Exhibit 152 - Store 16140)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
232 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 153 part 1 - Store 16276 (Attachments: # 1 Exhibit 153 part 2 - Store 16276# 2 Exhibit 154 - Store 16336# 3 Exhibit 155 - Store 16370# 4 Exhibit 156 - Store 16381# 5 Exhibit 157 - Store 16478# 6 Exhibit 158 - Store 16520# 7 Exhibit 159 - Store 16534# 8 Exhibit 160 - Store 16812# 9 Exhibit 161 - Store 16819# 10 Exhibit 162 - Store 16909)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
233 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 163 - Store 17181 (Attachments: # 1 Exhibit 164 part 1 - Store 17224# 2 Exhibit 164 part 2 - Store 17224# 3 Exhibit 165 Store 17243# 4 Exhibit 166 - Store 17363# 5 Exhibit 167 - Store 17435# 6 Exhibit 168 Store 17471# 7 Exhibit 169 - Store 17473# 8 Exhibit 170 - Store 17529# 9 Exhibit 171 Store 17556)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
234 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 172 part 1 - Store 17572 (Attachments: # 1 Exhibit 172 part 2 - Store 17572# 2 Exhibit 173 part 1 - Store 17576# 3 Exhibit 173 part 2 - Store17576# 4 Exhibit 174 - Store 17751# 5 Exhibit 175 - Store 17984# 6 Exhibit 176 - Store 17997# 7 Exhibit 177 - Store 18003# 8 Exhibit 178 - Store 18112# 9 Exhibit 179 Store 18315# 10 Exhibit 180 - Store 18377)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
235 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 192 - Store 19498 (Attachments: # 1 Exhibit 182 - Store 18606# 2 Exhibit 183 - Store 18687# 3 Exhibit 184 - Store 18701# 4 Exhibit 185 - Store 18808# 5 Exhibit 186 - Store 18901# 6 Exhibit 187 - Store 19289# 7 Exhibit 188 - Store 19298# 8 Exhibit 189 - Store 19344# 9 Exhibit 190 - Store 19389# 10 Exhibit 191 - Store 19413)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
236 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 181 - Store 18577 (Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
237 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 192 - Store 19498 (Attachments: # 1 Exhibit 193 - Store 19509# 2 Exhibit 194 - Store 19515# 3 Exhibit 195 part 1 - Store 19532# 4 Exhibit 195 part 2 - Store 19532# 5 Exhibit 196 - Store 19591# 6 Exhibit 197 Store 19744# 7 Exhibit 198 - Store 19950# 8 Exhibit 199 - Store 20052# 9 Exhibit 200 Store 20175)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
238 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 201 part 1 - Store 20180 (Attachments: # 1

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12/14/2006 12/14/2006 12/18/2006 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007

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Exhibit 201 part 2 - Store 20180# 2 Exhibit 202 - Store 20190# 3 Exhibit 203 - Store 20204# 4 Exhibit 204 - Store 20241# 5 Exhibit 205 - Store 20310# 6 Exhibit 206 - Store 20353# 7 Exhibit 207 part 1 - Store 20566# 8 Exhibit 207 part 2 - Store 20566# 9 Exhibit 208 - Store 20578# 10 Exhibit 209 - Store 20635)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
239 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 210 - Store 20646 (Attachments: # 1 Exhibit 211 - Store 20676# 2 Exhibit 212 - Store 20690# 3 Exhibit 213 - Store 20758# 4 Exhibit 214 part 1 - Store 20893# 5 Exhibit 214 part 2 - Store 20893# 6 Exhibit 215 Store 21000# 7 Exhibit 216 - Store 21018# 8 Exhibit 217 - Store 21047# 9 Exhibit 218 Store 21220# 10 Exhibit 219 - Store 21226)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
240 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 216 Notice (Other), Notice (Other) Exhibit 220 - Store 21261 (Attachments: # 1 Exhibit 221 - Store 21295# 2 Exhibit 222 - Store 21343# 3 Exhibit 223 part 1 - Store 21453# 4 Exhibit 223 part 2 - Store 21453)(Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
241 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates of Plaintiffs' Submission of Agreements Reached by the Parties (Robertson, Amy) (Filed on 12/14/2006) (Entered: 12/14/2006)
242 ERRATA CORRECTED NOTICE OF PLAINTIFFS' SUBMISSION OF SPECIAL MASTER REPORTS by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Errata CORRECTED NOTICE OF PLAINTIFFS' SUBMISSION OF SPECIAL MASTER REPORTS)(Robertson, Amy) (Filed on 12/18/2006) (Entered: 12/18/2006)
243 MOTION to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 1/12/2007) (Entered: 01/12/2007)
244 Declaration in Support of 243 MOTION to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections Declaration of Amy F. Robertson ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (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)(Related document(s) 243 ) (Robertson, Amy) (Filed on 1/12/2007) (Entered: 01/12/2007)
245 Declaration in Support of 243 MOTION to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections Exhibit 9 ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit 10# 2 Exhibit 11# 3 Exhibit 12# 4 Exhibit 13# 5 Exhibit 14# 6 Exhibit 15# 7 Exhibit 16# 8 Exhibit 17)(Related document(s) 243 ) (Robertson, Amy) (Filed on 1/12/2007) (Entered: 01/12/2007)
246 Declaration in Support of 243 MOTION to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections Exhibit 18 ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit 19# 2 Exhibit 20# 3 Exhibit 21# 4 Exhibit 22# 5 Exhibit 23)(Related document(s) 243 ) (Robertson, Amy) (Filed on 1/12/2007) (Entered: 01/12/2007)
247 OBJECTIONS to Special Master's Interim Survey Reports by Taco Bell Corp.. (Hikida, Richard) (Filed on 1/12/2007) (Entered: 01/12/2007)

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02/23/2007
02/28/2007 03/05/2007 03/07/2007 03/07/2007

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248 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Plaintiffs' Request for a Court Reporter for the January 24, 2007 Status Conference (Fox, Timothy) (Filed on 1/19/2007) (Entered: 01/19/2007)
249 STATUS REPORT Joint Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 1/19/2007) (Entered: 01/19/2007)
250 ORDER granting 248 Plaintiffs' Request for A Court Reporter ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. Signed by Judge Martin J. Jenkins on 1/22/2007. (mat, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/23/2007)
251 Minute Entry: Status Conference (Date Filed: 1/24/2007). Motion Hearing set for 5/17/2007 09:30 AM. Status Conference set for 3/7/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco. (Court Reporter Leo Mankiewicz.) (mat, COURT STAFF) (Date Filed: 1/24/2007) (Entered: 01/24/2007)
252 Proposed Order JOINT SUBMISSION OF PROPOSED ORDER by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 1/26/2007) (Entered: 01/26/2007)
253 ORDER granting 252 Proposed Order ﬁled by Francie E. Moeller,, Edward Muegge,, Katherine Corbett,, Craig Thomas Yates,. Signed by Judge Martin J. Jenkins on 1/26/2007. (mat, COURT STAFF) (Filed on 1/26/2007) (Entered: 02/05/2007)
254 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Notice Concerning Upcoming Status Conference (Fox, Timothy) (Filed on 2/20/2007) (Entered: 02/20/2007)
255 MOTION for Partial Summary Judgment ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 5/17/2007 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (Attachments: # 1 Appendix Part 1# 2 Appendix Part 2# 3 Appendix Part 3# 4 Proposed Order)(Fox, Timothy) (Filed on 2/23/2007) (Entered: 02/23/2007)
256 Declaration of Timothy P. Fox in Support of 255 MOTION for Partial Summary Judgment ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19)(Related document(s) 255 ) (Fox, Timothy) (Filed on 2/23/2007) (Entered: 02/23/2007)
257 TRANSCRIPT of Proceedings held on 1/24/07 before Judge Jenkins. Court Reporter: Leo Mankiewicz. (slh, COURT STAFF) (Filed on 2/28/2007) (Entered: 03/01/2007)
258 Joint MOTION to Continue the Status Conference Currently Set for March 7, 2007 ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 3/5/2007) (Entered: 03/05/2007)
259 ORDER GRANTING JOINT MOTION TO CONTINUE THE STATUS CONFERENCE CURRENTLY SET FOR MARCH 7, 2007 to May 2, 2007 at 2:00 p.m. Signed by Judge Martin J. Jenkins on 3/7/2007. (ls, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)
Set/Reset Hearings: Status Conference set for 5/2/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco before Hon. Martin J. Jenkins. (ls, COURT STAFF) (Filed on 3/7/2007) (Entered: 03/07/2007)

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04/13/2007 04/13/2007 04/25/2007 04/25/2007

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260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
261 Declaration of Kim Blackseth in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
262 Declaration of Joseph De Bella in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
263 Declaration of Mike Harkins in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
264 Declaration of Aaron Kane in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
265 Declaration of Sabrina Ford in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
266 Declaration of Richard Hikida in Support of 260 Memorandum in Opposition to Plaintiffs' Motion for MSJ ﬁled byTaco Bell Corp.. (Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
267 Request for Judicial Notice re 260 Memorandum in Opposition to Plaintiffs' Partial Motion for MSJ ﬁled byTaco Bell Corp.. (Attachments: # 1)(Related document(s) 260 ) (Hikida, Richard) (Filed on 3/23/2007) (Entered: 03/23/2007)
268 ERRATA re 260 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment by Taco Bell Corp.. (Attachments: # 1)(Hikida, Richard) (Filed on 3/26/2007) (Entered: 03/26/2007)
269 NOTICE of Supplmental Authority in Support re 260 Memorandum in Opposition ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit)(Related document(s) 260 ) (Hikida, Richard) (Filed on 4/11/2007) Modiﬁed on 4/13/2007 (slh, COURT STAFF). (Entered: 04/11/2007)
270 NOTICE of Foreign Authorities in Support re 260 Memorandum in Opposition ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit)(Related document(s) 260 ) (Hikida, Richard) (Filed on 4/11/2007) Modiﬁed on 4/13/2007 (slh, COURT STAFF). (Entered: 04/11/2007)
271 Reply Memorandum re 255 MOTION for Partial Summary Judgment ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Appendix)(Fox, Timothy) (Filed on 4/13/2007) (Entered: 04/13/2007)
272 Declaration of Amy F. Robertson in Support of 271 Reply Memorandum ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Related document(s) 271 ) (Fox, Timothy) (Filed on 4/13/2007) (Entered: 04/13/2007)
273 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Plaintiffs' Position Statement Concerning Questions for the Special Master (Fox, Timothy) (Filed on 4/25/2007) (Entered: 04/25/2007)
274 Declaration in Support of 273 Notice (Other) Declaration of Timothy P. Fox in Support of Plaintiffs' Position Statement Concerning Questions for the Special Master ﬁled

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byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Related document(s) 273 ) (Fox, Timothy) (Filed on 4/25/2007) (Entered: 04/25/2007)

04/25/2007

275 REPLY to Response to Motion Proposed Questions to Special Master Regarding Interim Survey Reports ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 4/25/2007) (Entered: 04/26/2007)

05/01/2007 276 Letter from Taco Bell Corp.. (Attachments: # 1 Proof of Service)(Hikida, Richard) (Filed on 5/1/2007) (Entered: 05/01/2007)

05/01/2007 277 NOTICE by Taco Bell Corp. re 275 Reply to Response to Motion Corrected Proposed Questions (Attachments: # 1)(Hikida, Richard) (Filed on 5/1/2007) (Entered: 05/01/2007)

05/03/2007

278 Minute Entry: Telephone Status Conference held 5/1/07 before Judge Martin J. Jenkins. The Court will review the need for defendant's request to ﬁle a sur-reply and respond by close of business, Friday, 5/4/07. The parties are to meet and confer and by close of business Friday, 5/11/07, submit a new set of stipulated questions, that are to focus on methodology, for the Special Master, using Plaintiff's Exhibit 3 as a guideline. No more than 2 days prior to the motions hearing, the parties are to submit a Joint Status Conference Statement. The motions hearing will go forward as scheduled, 5/17/07, 9:30 a.m. (Court Reporter Sahar McVickar.) (epb, COURT STAFF) (Date Filed: 5/3/2007) (Entered: 05/03/2007)

05/04/2007

279 ORDER GRANTING DEFENDANT LEAVE TO FILE SURREPLY. Signed by Judge Jenkins on May 4, 2007. (mjjlc1, COURT STAFF) (Filed on 5/4/2007) (Entered: 05/04/2007)

05/10/2007 280 Reply Memorandum [Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/10/2007 281 Declaration of Steve Elmer [Support of Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/10/2007 282 Declaration of Joseph de Bella [Support of Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/10/2007 283 Declaration of Sabrina Ford [Support of Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/10/2007 284 Declaration of Richard Hikida [Support of Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/10/2007 285 Declaration of Aaron Kane [Support of Sur-Reply] ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 5/10/2007) (Entered: 05/10/2007)

05/11/2007

286 Joint MOTION to Continue Deadline to Submit Stipulated Questions for Special Master ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 5/11/2007) (Entered: 05/11/2007)

05/11/2007

287 Proposed Order re 286 Joint MOTION to Continue Deadline to Submit Stipulated Questions for Special Master by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 5/11/2007) (Entered: 05/11/2007)

05/15/2007

288 AFFIDAVIT Regarding Timetable for Anticipated Filing of Motion for Summary Judgment by Taco Bell Corp.. (Hurley, Gregory) (Filed on 5/15/2007) (Entered: 05/15/2007)

05/15/2007 289 STATUS REPORT Plaintiffs' Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 5/15/2007)

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05/17/2007

290 Minute Entry: Motion Hearing held on 5/17/2007 before Judge Martin J. Jenkins. Matter deemed submitted. Court to issue order. (Court Reporter Debra Pas.) (epb, COURT STAFF) (Date Filed: 5/17/2007) (Entered: 05/17/2007)

05/18/2007

291 ORDER by Judge Martin J. Jenkins granting 286 Motion to Continue Deadline to Submit Stipulated Questions for Special Master. Deadline extended to 6/4/07. Signed by Judge Martin J. Jenkins 5/17/2007. (epb, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)

05/31/2007 292 NOTICE by Taco Bell Corp. re 260 Memorandum in Opposition Supplemental Authority in Support of (Hikida, Richard) (Filed on 5/31/2007) (Entered: 05/31/2007)

06/01/2007 297 TRANSCRIPT of Proceedings held on 5/17/07 before Judge Martin J. Jenkins. Court Reporter: Debra L. Pas. (hdj, COURT STAFF) (Filed on 6/1/2007) (Entered: 06/05/2007)

06/04/2007

293 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Plaintiffs' Statement Concerning Questions to the Special Master (Attachments: # 1 Exhibit 1 - List of questions)(Robertson, Amy) (Filed on 6/4/2007) (Entered: 06/04/2007)

06/04/2007

294 Proposed Order Concerning Questions to the Special Master by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit List of Questions)(Robertson, Amy) (Filed on 6/4/2007) (Entered: 06/04/2007)

06/04/2007 295 NOTICE by Taco Bell Corp. Statement Concerning Questions to the Special Master (Hikida, Richard) (Filed on 6/4/2007) (Entered: 06/04/2007)

06/04/2007

296 AFFIDAVIT of Richard H. Hikida in Support of Defendant Taco Bell Corp.'s Statement Concerning Questions to the Special Master by Taco Bell Corp.. (Hikida, Richard) (Filed on 6/4/2007) (Entered: 06/04/2007)

06/06/2007

298 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 255 MOTION for Partial Summary Judgment Plaintiffs' Submission of Recent Decision Pursuant to Local Rule 7-3(d) (Fox, Timothy) (Filed on 6/6/2007) (Entered: 06/06/2007)

06/18/2007

299 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 255 MOTION for Partial Summary Judgment Plaintiffs' Submission of Recent Decision Pursuant to Local Rule 7-3(d) (Attachments: # 1)(Fox, Timothy) (Filed on 6/18/2007) (Entered: 06/18/2007)

06/18/2007 300 RESPONSE to re 299 Notice (Other), Notice (Other) by Taco Bell Corp.. (Hikida, Richard) (Filed on 6/18/2007) (Entered: 06/18/2007)

06/26/2007

301 NOTICE by Taco Bell Corp. re 260 Memorandum in Opposition Supplemental Authority (Attachments: # 1 Exhibit A)(Hikida, Richard) (Filed on 6/26/2007) (Entered: 06/26/2007)

06/27/2007

302 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 301 Notice (Other) Plaintiffs' Response to Notice of Supplemental Authority in Support of Defendant Taco Bell Corp.'s Memorandum of Points and Authorities in Opposition to Motion for Partial Summary Judgment (Fox, Timothy) (Filed on 6/27/2007) (Entered: 06/27/2007)

08/01/2007

303 NOTICE by Taco Bell Corp. re 260 Memorandum in Opposition Supplemental Authorities (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hikida, Richard) (Filed on 8/1/2007) (Entered: 08/01/2007)

08/02/2007 304 NOTICE by Taco Bell Corp. of Supplemental Authorities in Support of TBC's Opposition to Motion for Partial Summary Judgment (Attachments: # 1)(Hikida, Richard) (Filed on

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8/2/2007) (Entered: 08/02/2007)

08/03/2007

305 NOTICE by Taco Bell Corp. re 260 Memorandum in Opposition of Supplemental Authorities in Support (Attachments: # 1 Exhibit to Notice of Supplemental Authorities) (Hikida, Richard) (Filed on 8/3/2007) (Entered: 08/03/2007)

08/06/2007

306 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 255 MOTION for Partial Summary Judgment Plaintiffs' Submission of Recent Decision Pursuant to Local Rule 7-3(d), and Response to Defendant's Recent Submissions (Fox, Timothy) (Filed on 8/6/2007) (Entered: 08/06/2007)

08/08/2007

307 ORDER by Judge Martin J. Jenkins denying in part and granting in part 255 Motion for Partial Summary Judgment, as set forth in Order. Case is scheduled for a Status Conference on September 18, 2007 at 2:00 p.m. (epb, COURT STAFF) (Filed on 8/8/2007) (Entered: 08/08/2007)

08/08/2007

Set Deadlines/Hearings: Status Conference set for 9/18/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco. (epb, COURT STAFF) (Filed on 8/8/2007) (Entered: 08/08/2007)

08/30/2007 308 NOTICE of Change of Address by Richard Hidehito Hikida, Esq (Hikida, Richard) (Filed on 8/30/2007) (Entered: 08/30/2007)

09/06/2007 309 TRANSCRIPT of Proceedings held on 5/2/07 before Judge Jenkins. Court Reporter: Sahar McVickar. (slh, COURT STAFF) (Filed on 9/6/2007) (Entered: 09/11/2007)

09/12/2007

310 STATUS REPORT Joint Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/12/2007) (Entered: 09/12/2007)

09/14/2007

311 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Plaintiffs' Request for a Court Reporter for the September 18, 2007 Status Conference (Fox, Timothy) (Filed on 9/14/2007) (Entered: 09/14/2007)

09/17/2007

312 Proposed Order re 311 Notice (Other) [Proposed] Order Granting Plaintiffs' Request for a Court Reporter for the September 18, 2007 Status Conference by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/17/2007) (Entered: 09/17/2007)

09/18/2007

316 Minute Entry: Status Conference Held before the Honorable Martin J. Jenkins (Date Filed: 9/18/2007). Status Conference Continued for 9/27/2007 02:00 PM. (Court Reporter Kathy Wyatt.) (aaa, Court Staff) (Date Filed: 9/18/2007) (Entered: 09/19/2007)

09/19/2007 313 MOTION to Appear by Telephone ﬁled by Taco Bell Corp.. (Hikida, Richard) (Filed on 9/19/2007) (Entered: 09/19/2007)

09/19/2007 314 Proposed Order re 313 MOTION to Appear by Telephone by Taco Bell Corp.. (Hikida, Richard) (Filed on 9/19/2007) (Entered: 09/19/2007)

09/19/2007 315 Proposed Order Concerning Questions To The Special Master by Taco Bell Corp.. (Attachments: # 1)(Hikida, Richard) (Filed on 9/19/2007) (Entered: 09/19/2007)

09/20/2007

317 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Plaintiffs' Request for a Court Reporter for the September 27, 2007 Status Conference (Fox, Timothy) (Filed on 9/20/2007) (Entered: 09/20/2007)

09/20/2007

318 Proposed Order re 317 Notice (Other) [Proposed] Order Granting Plaintiffs' Request for a Court Reporter for the September 27, 2007 Status Conference by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/20/2007) (Entered: 09/20/2007)

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09/21/2007 319 MOTION for Reconsideration ﬁled by Taco Bell Corp.. (Hikida, Richard) (Filed on 9/21/2007) (Entered: 09/21/2007)

09/21/2007

320 Declaration in Support of 319 MOTION for Reconsideration of Steve Elmer ﬁled byTaco Bell Corp.. (Related document(s) 319 ) (Hikida, Richard) (Filed on 9/21/2007) (Entered: 09/21/2007)

09/21/2007

321 Declaration in Support of 319 MOTION for Reconsideration of Richard H. Hikida ﬁled byTaco Bell Corp.. (Attachments: # 1)(Related document(s) 319 ) (Hikida, Richard) (Filed on 9/21/2007) (Entered: 09/21/2007)

09/21/2007 322 ORDER by Judge Martin J Jenkins granting 243 joint Motion concerning questions to the special master (awb, COURT-STAFF) (Filed on 9/21/2007) (Entered: 09/21/2007)

09/24/2007

325 REPOST - ORDER ALLOWING RICHARD H. HIKIDA TO APPEAR TELEPHONICALLY AT THE 9/27/07 AT 2:00 P.M. STATUS CONFERENCE - re 314 Proposed Order ﬁled by Taco Bell Corp. Signed by Judge Martin J. Jenkins on 9/24/2007. (Entered: 09/26/2007)

09/24/2007

323 REPOST - ORDER GRANTING PLAINTIFFS' REQUEST FOR A COURT REPORTER FOR THE SEPTEMBER 27, 2007 STATUS CONFERENCE- re 312 Proposed Order, ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Martin J. Jenkins on 9/24/2007. (ls, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/26/2007)

09/24/2007

324 REPOST - ORDER that the Order Granting Plaintiffs' Motion to Make Findings of Fact, and to Adopt the Special Master's Reports with Limited Objections, issued on 9/21/2007, document #322 in reference to document #243 is hereby VACATED; re 322 and 243 . Signed by Judge Martin J. Jenkins on 9/24/2007. (ls, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/26/2007)

09/24/2007

326 REPOST - ORDER CONCERNING QUESTIONS TO THE SPECIAL MASTER; re 315 . Signed by Judge Martin J. Jenkins on 9/24/2007. (ls, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/26/2007)

09/25/2007

327 STATUS REPORT Joint Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/25/2007) (Entered: 09/25/2007)

09/27/2007

328 Minute Entry: Status Conference held. Status Conference set for 11/28/2007 02:00 PM in Courtroom 11, 19th Floor, San Francisco. (Court Reporter: Kathy Wyatt) (rbe, COURT STAFF) (Date Filed: 9/27/2007) (Entered: 09/27/2007)

09/28/2007

329 PRETRIAL ORDER. Bench Trial set for 11/10/2008 08:30 AM in Courtroom 11, 19th Floor, San Francisco for two weeks. Further Case Management Conference set for 11/28/2007 02:00 PM. Pretrial Conference set for 11/4/2008 03:30 PM. Motion Hearing set for 10/7/2008 09:30 AM in Courtroom 11, 19th Floor, San Francisco. Signed by Judge Martin J. Jenkins on 09/27/07. (rbe, COURT STAFF) (Filed on 9/28/2007) (Entered: 09/28/2007)

10/01/2007 330 TRANSCRIPT of Proceedings held on 9/27/07 before Judge Jenkins. Court Reporter: Kathy Wyatt. (slh, COURT STAFF) (Filed on 10/1/2007) (Entered: 10/01/2007)

10/05/2007

331 Memorandum in Opposition re 319 MOTION for Reconsideration ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Appendix)(Robertson, Amy) (Filed on 10/5/2007) (Entered: 10/05/2007)

10/08/2007 332 Letter from Gregory F. Hurley. (Attachments: # 1 Memo of Taco Bell Corp.'s selection of 20 stores for mini trial)(Hikida, Richard) (Filed on 10/8/2007) (Entered: 10/08/2007)

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11/12/2007 11/12/2007 11/13/2007
12/12/2007
12/13/2007

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333 Letter from Timothy P. Fox. (Attachments: # 1 Exhibit # 2 Exhibit)(Fox, Timothy) (Filed on 10/8/2007) (Entered: 10/08/2007)
334 AFFIDAVIT re 333 Letter by Taco Bell Corp.. (Hikida, Richard) (Filed on 10/8/2007) (Entered: 10/08/2007)
335 REPLY to Response to Motion re 319 MOTION for Reconsideration Reply Memorandum of Points and Authorities ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 10/12/2007) (Entered: 10/12/2007)
336 Appendix re 335 Reply to Response to Motion for Reconsideration of August 8, 2007 Order Granting in Part Plaintiffs' Motion for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Attachments: # 1 Appendix # 2 Appendix)(Related document(s) 335 ) (Hikida, Richard) (Filed on 10/12/2007) (Entered: 10/12/2007)
337 STIPULATION Joint Stipulation Concerning Restaurants for Bellwether Trial by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 10/16/2007) (Entered: 10/16/2007)
338 STIPULATION AND ORDER concerning restaurants for Bellwether trial. Signed by Judge Martin J. Jenkins on 10/18/07. (rbe, COURT STAFF) (Filed on 10/18/2007) (Entered: 10/18/2007)
339 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit Sheely v. MRI Radiology Network)(Robertson, Amy) (Filed on 10/25/2007) (Entered: 10/25/2007)
340 TRANSCRIPT of Proceedings held on 9/18/07 before Judge Jenkins. Court Reporter: Kathy Wyatt. (slh, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/06/2007)
341 STIPULATION to Continue Status Conference by Taco Bell Corp.. (Attachments: # 1 Proposed Order Granting Continuance of Status Conference)(Hikida, Richard) (Filed on 11/9/2007) (Entered: 11/09/2007)
342 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d Plaintiffs' Statement of Recent Decision Pursuant to Local Rule 7-3(d) ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1)(Fox, Timothy) (Filed on 11/12/2007) (Entered: 11/12/2007)
343 RESPONSE to re 339 Statement of Recent Decision by Taco Bell Corp.. (Hikida, Richard) (Filed on 11/12/2007) (Entered: 11/12/2007)
344 NOTICE by Taco Bell Corp. of Supplemental Authority (Attachments: # 1 Afﬁdavit of Richard H. Hikida in Support of Notice of Supplemental Authority)(Hikida, Richard) (Filed on 11/12/2007) (Entered: 11/12/2007)
345 ORDER GRANTING CONTINUANCE OF STATUS CONFERENCE Status Conference set for 12/19/2007 02:00 PM.. Signed by Judge Martin J. Jenkins on 11/13/07. (tdm, COURT STAFF) (Filed on 11/13/2007) Additional attachment(s) added on 11/14/2007 (tdm, COURT STAFF). (Entered: 11/14/2007)
346 Joint MOTION for Extension of Time to File Status Conference Statement ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Proposed Order [Proposed] Order Granting Motion to Extend the Deadline to File a Joint Status Statement)(Robertson, Amy) (Filed on 12/12/2007) (Entered: 12/12/2007)
347 STATUS REPORT Joint Status Conference Statement by Francie E. Moeller, Edward

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Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 12/13/2007) (Entered: 12/13/2007)

12/17/2007

348 STATUS REPORT Supplement to Joint Status Conference Statement Filed on December 13, 2007 by Taco Bell Corp.. (Hikida, Richard) (Filed on 12/17/2007) (Entered: 12/17/2007)

12/18/2007

349 CLERK'S NOTICE resetting Status Conference to 1/9/2008 at 2:30 P.M. before the Honorable Martin J. Jenkins. (ls, COURT STAFF) (Filed on 12/18/2007) (Entered: 12/18/2007)

01/05/2008

350 STATUS REPORT Update to Joint Status Conference Statement by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 1/5/2008) (Entered: 01/05/2008)

01/07/2008

351 Plaintiffs' Request for a Court Reporter for the January 9, 2008 Status Conference by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 1/7/2008) Modiﬁed on 1/8/2008 (slh, COURT STAFF). (Entered: 01/07/2008)

01/08/2008 352 ORDER by Judge Martin J. Jenkins granting 351 Plaintiff's Request for Court Reporter at Status Conference. (mat, COURT STAFF) (Filed on 1/8/2008) (Entered: 01/08/2008)

01/09/2008

353 Minute Entry: Status Conference (Date Filed: 1/9/2008). Status Conference set for 3/19/2008 02:30 PM in Courtroom 11, 19th Floor, San Francisco. (Court Reporter Lydia Zinn.) (mat, COURT STAFF) (Date Filed: 1/9/2008) (Entered: 01/10/2008)

01/11/2008

354 ORDER. Signed by Judge Martin J. Jenkins on 1/11/2008. (mat, COURT STAFF) (Filed on 1/11/2008) (Entered: 01/11/2008)

01/14/2008

355 RESPONSE to re 344 Notice (Other) Plaintiffs' Response to Defendant's Submission of Ryman v. Sears, Roebuck and Co. by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 1/14/2008) (Entered: 01/14/2008)

01/14/2008 358 TRANSCRIPT of Proceedings held on 1/9/08 before Judge Martin J. Jenkins. Court Reporter: Lydia Zinn.. (sv, COURT STAFF) (Filed on 1/14/2008) (Entered: 01/18/2008)

01/15/2008

356 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Joint Submission of Proposed Order (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 1/15/2008) (Entered: 01/15/2008)

01/17/2008

357 Proposed Order Stipulation and [Proposed] Order Regarding Response to Plaintiffs' Interrogatories Nos. 2-3 by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 1/17/2008) (Entered: 01/17/2008)

01/18/2008

359 ORDER granting 356 Joint Submission or Proposed Order (Other) ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Martin J. Jenkins on 1/18/2008. (mat, COURT STAFF) (Filed on 1/18/2008) (Entered: 01/18/2008)

01/18/2008

360 ORDER granting 357 STIPULATION and Proposed Order Regarding Response to Plaintiffs' Interrogatories Nos. 2-3 ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Martin J. Jenkins on 1/18/2008. (mat, COURT STAFF) (Filed on 1/18/2008) (Entered: 01/18/2008)

02/15/2008

361 MOTION to Compel ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 3/19/2008 02:30 PM. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fox, Timothy) (Filed on 2/15/2008) (Entered: 02/15/2008)

02/15/2008 362 Proposed Order re 361 MOTION to Compel by Francie E. Moeller, Edward Muegge,

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03/04/2008 03/07/2008 03/24/2008 04/07/2008
04/09/2008
04/09/2008 04/10/2008 04/10/2008 04/11/2008 04/11/2008 04/14/2008
04/14/2008

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Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 2/15/2008) (Entered: 02/15/2008)
363 Reply to Opposition re 361 MOTION to Compel ﬁled byTaco Bell Corp.. (Attachments: # 1 Afﬁdavit of Richard Deleissegues, # 2 Afﬁdavit of Sabrina Wright)(Hikida, Richard) (Filed on 2/29/2008) (Entered: 02/29/2008)
364 Declaration of Richard H. Hikida in Support of 361 MOTION to Compel ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 part 1, # 3 Exhibit 2 part 2, # 4 Exhibit 2 part 3, # 5 Exhibit 2 part 4, # 6 Exhibit 2 part 5, # 7 Exhibit 2 part 6, # 8 Exhibit 2 part 7, # 9 Exhibit 2 part 8, # 10 Exhibit 2 part 9, # 11 Exhibit 2 part 10, # 12 Exhibit 2 part 11, # 13 Exhibit 2 part 12, # 14 Exhibit 2 part 13)(Related document(s) 361 ) (Hikida, Richard) (Filed on 2/29/2008) (Entered: 02/29/2008)
365 Reply Memorandum re 361 MOTION to Compel Plaintiffs Reply Brief in Support of their Motion to Compel ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 3/4/2008) (Entered: 03/04/2008)
366 CLERK'S NOTICE Vacating Further Status Conference and Motion to Compel hearings. (mat, COURT STAFF) (Filed on 3/7/2008) (Entered: 03/07/2008)
367 ORDER by Judge Martin J. Jenkins denying 319 Motion for Reconsideration (mjjlc1, COURT STAFF) (Filed on 3/24/2008) (Additional attachment(s) added on 3/25/2008: # 1 Certiﬁcate of Service) (mat, COURT STAFF). (Entered: 03/24/2008)
368 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Phyllis J. Hamilton for all further proceedings. Judge Hon. Martin J. Jenkins no longer assigned to case. Signed for The Executive Committee: Richard W. Wieking, Clerk on 4/7/08. (far, COURT STAFF) (Filed on 4/7/2008) (Entered: 04/08/2008)
369 RE-NOTICE of 361 Motion to Compel ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 5/14/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Fox, Timothy) (Filed on 4/9/2008) Modiﬁed on 4/10/2008 (far, COURT STAFF). (Entered: 04/09/2008)
Set/Reset Deadlines as to 361 MOTION to Compel. Motion Hearing set for 5/14/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (far, COURT STAFF) (Filed on 4/9/2008) (Entered: 04/10/2008)
370 ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Phyllis J. Hamilton on 4/10/08. (nah, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
Set Deadlines/Hearings: Case Management Statement due by 5/8/2008. Case Management Conference set for 5/15/2008 02:30 PM. (nah, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
371 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Phyllis J. Hamilton on 4/10/08. (nah, COURT STAFF) (Filed on 4/11/2008) (Entered: 04/11/2008)
CASE REFERRED to Magistrate Judge Magistrate Judge James Larson for Discovery (wh, COURT STAFF) (Filed on 4/11/2008) (Entered: 04/11/2008)
372 AMENDED NOTICE of Motion to Compel re 361 ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 5/14/2008 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Fox, Timothy) (Filed on 4/14/2008) Modiﬁed on 4/14/2008 (far, COURT STAFF). (Entered: 04/14/2008)
Set/Reset Deadlines as to 361 MOTION to Compel. Motion Hearing set for 5/14/2008

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09:30 AM in Courtroom F, 15th Floor, San Francisco. (far, COURT STAFF) (Filed on 4/14/2008) (Entered: 04/14/2008)

04/30/2008

373 JOINT STATEMENT of Issues Re: 361 Plaintiffs Motion to Compel Discovery Responses Relating to Readily Achievable Barrier Removal by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates (Fox, Timothy) (Filed on 4/30/2008) Modiﬁed on 4/30/2008 (far, COURT STAFF). (Entered: 04/30/2008)

05/08/2008

374 JOINT CASE MANAGEMENT STATEMENT ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 5/8/2008) (Entered: 05/08/2008)

05/09/2008

375 STIPULATION for Protective Order and [Proposed] Order ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 5/9/2008) Modiﬁed on 5/9/2008 (far, COURT STAFF). (Entered: 05/09/2008)

05/12/2008 376 ORDER. Signed by Judge Hamilton on 5/12/2008. (pjhlc1, COURT STAFF) (Filed on 5/12/2008) (Entered: 05/12/2008)

05/14/2008

377 Minute Entry: Motion Hearing held on 5/14/2008 before James Larson (Court Reporter Kathy Wyatt (415) 487-9834) (wh, COURT STAFF) (Date Filed: 5/14/2008) Modiﬁed on 5/14/2008 (far, COURT STAFF). (Entered: 05/14/2008)

05/15/2008

378 Minute Entry: Case Management Conference held on 5/15/2008 before Phyllis J. Hamilton (Date Filed: 5/15/2008). Proposals not to exceed 10 pages due by 5/29/2008. Further Case Management Conference set for 6/5/2008 01:30 PM. (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 5/15/2008) Modiﬁed on 5/16/2008 (nah, COURT STAFF). (Entered: 05/16/2008)

05/29/2008

379 Statement Re: Sequence of Pretrial Proceedings and Bifurcation of Trial by Taco Bell Corp. (Hikida, Richard) (Filed on 5/29/2008) Modiﬁed on 5/30/2008 (far, COURT STAFF). (Entered: 05/29/2008)

05/29/2008

380 Plaintiffs Proposed Case Management Plan by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates (Fox, Timothy) (Filed on 5/29/2008) Modiﬁed on 5/30/2008 (far, COURT STAFF). (Entered: 05/29/2008)

06/02/2008

381 MOTION for Protective Order Stipulation for Protective Order and [Proposed] Order ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 6/2/2008) (Entered: 06/02/2008)

06/03/2008

382 STIPULATED PROTECTIVE ORDER by Judge Phyllis J. Hamilton granting 381 Motion for Protective Order (nah, COURT STAFF) (Filed on 6/3/2008) (Entered: 06/03/2008)

06/05/2008

383 Minute Entry: Further Case Management Conference held on 6/5/2008 before Phyllis J. Hamilton (Date Filed: 6/5/2008). (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 6/5/2008) (Entered: 06/06/2008)

06/19/2008

384 Letter Brief Letter from Plaintiffs' Counsel re: Case Schedule ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 6/19/2008) (Entered: 06/19/2008)

06/19/2008 385 Letter from Defense Counsel Re: Case Schedule. (Attachments: # 1 Proposed Order Re: Pretrial Dates)(Hikida, Richard) (Filed on 6/19/2008) (Entered: 06/19/2008)

06/27/2008 386 SCHEDULING ORDER. Signed by Judge Hamilton on 6/27/2008. (pjhlc1, COURT STAFF) (Filed on 6/27/2008) (Entered: 06/27/2008)

07/08/2008 387 ORDER by Judge James Larson Denying Without Prejudice Plaintiffs' Motion to Compel

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07/11/2008 07/11/2008 07/11/2008 07/14/2008
07/22/2008
07/22/2008
07/23/2008 08/06/2008
08/06/2008 08/12/2008 08/12/2008 08/12/2008 08/13/2008
08/27/2008

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Discovery 361 Motion to Compel (jlsec, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
388 Letter from Plaintiffs re: Plaintiffs' Motion to Compel Discovery Responses Relating to Readily Achievable Barrier Removal. (Robertson, Amy) (Filed on 7/11/2008) (Entered: 07/11/2008)
389 REQUEST to Strike 388 Plaintiffs' Unauthorized Letter Brief by Taco Bell Corp. (Hikida, Richard) (Filed on 7/11/2008) Modiﬁed on 7/11/2008 (far, COURT STAFF). (Entered: 07/11/2008)
390 MOTION to Withdraw Holland & Hart as Counsel ﬁled by Taco Bell Corp.. (Hikida, Richard) (Filed on 7/11/2008) (Entered: 07/11/2008)
391 ORDER by Judge James Larson Granting Motion to Strike and Ordering Brieﬁng 389 Motion to Strike 389 REQUEST to Strike 388 Plaintiffs' Unauthorized Letter Brief, 390 MOTION to Withdraw Holland & Hart as Counsel ; granting 390 Motion to Withdraw. (jlsec, COURT STAFF) (Filed on 7/14/2008) (Entered: 07/14/2008)
392 MOTION to Compel Discovery Responses Relating to Readily Achievable Barrier Removal ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. Motion Hearing set for 8/27/2008 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Fox, Timothy) (Filed on 7/22/2008) (Entered: 07/22/2008)
393 Declaration of Timothy P. Fox in Support of 392 MOTION to Compel Discovery Responses Relating to Readily Achievable Barrier Removal ﬁled byFrancie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 392 ) (Fox, Timothy) (Filed on 7/22/2008) (Entered: 07/22/2008)
394 Proposed Order re 392 MOTION to Compel Discovery Responses Relating to Readily Achievable Barrier Removal by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 7/23/2008) (Entered: 07/23/2008)
395 Memorandum in Opposition re 392 MOTION to Compel Discovery Responses Relating to Readily Achievable Barrier Removal ﬁled byTaco Bell Corp.. (Attachments: # 1 Afﬁdavit of Steve Elmer, # 2 Afﬁdavit of Richard Hikida, # 3 Exhibit 1-15 to Richard Hikida Declaration)(Hikida, Richard) (Filed on 8/6/2008) (Entered: 08/06/2008)
396 MOTION to Seal Document 395 Memorandum in Opposition, ﬁled by Taco Bell Corp.. (Attachments: # 1 Afﬁdavit of Richard Hikida, # 2 Proposed Order)(Hikida, Richard) (Filed on 8/6/2008) (Entered: 08/06/2008)
397 ORDER re motion for administrative relief.. Signed by Judge James Larson on 8/11/08. (wh, COURT STAFF) (Filed on 8/12/2008) (Entered: 08/12/2008)
398 ERRATA re 396 MOTION to Seal Document 395 Memorandum in Opposition, by Taco Bell Corp.. (Hikida, Richard) (Filed on 8/12/2008) (Entered: 08/12/2008)
400 Bates-labeled as TBGT004714-TBGT004720 ﬁled by Taco Bell Corp. FILED UNDER SEAL per 397 Order. (far, COURT STAFF) (Filed on 8/12/2008) (far, COURT STAFF). (Entered: 08/13/2008)
399 REPLY BRIEF in Support of 392 MOTION to Compel Discovery Responses Relating to Readily Achievable Barrier Removal ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Robertson, Amy) (Filed on 8/13/2008) Modiﬁed on 8/13/2008 (far, COURT STAFF). (Entered: 08/13/2008)
401 Minute Entry: Motion Hearing held on 8/27/2008 before Magistrate Judge James Larson

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re 372 Amended Notice of Motion to Compel ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Lydia Zinn (415) 5316587) (wh, COURT STAFF) (Date Filed: 8/27/2008) Modiﬁed on 8/27/2008 (far, COURT STAFF). (Entered: 08/27/2008)

08/28/2008

402 ORDER by Judge James Larson Granting 392 Plaintiff's Motion to Compel. (jlsec, COURT STAFF) (Filed on 8/28/2008) Modiﬁed on 8/28/2008 (far, COURT STAFF). (Entered: 08/28/2008)

08/28/2008

403 Transcript of Proceedings before Judge James Larson. Court Reporter/Transcriber Lydia R. Zinn, Telephone number (415) 531-6587. 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 11/24/2008. (Zinn, Lydia) (Filed on 8/28/2008) (Entered: 08/28/2008)

09/03/2008

404 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp.. Motion Hearing set for 10/29/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Afﬁdavit of Steve Elmer, # 2 Exhibit 1 to Declaration of Steve Elmer, # 3 Exhibit 2 to Declaration of Steve Elmer, # 4 Exhibit 3 to Declaration of Steve Elmer, # 5 Exhibit 4 to Declaration of Steve Elmer, # 6 Exhibit 5 to Declaration of Steve Elmer, # 7 Exhibit 6 to Declaration of Steve Elmer, # 8 Exhibit 7 to Declaration of Steve Elmer, # 9 Exhibit 8 to Declaration of Steve Elmer, # 10 Exhibit 9 to Declaration of Steve Elmer, # 11 Exhibit 10 to Declaration of Steve Elmer, # 12 Exhibit 11 to Declaration of Steve Elmer, # 13 Exhibit 12 to Declaration of Steve Elmer, # 14 Exhibit 13 to Declaration of Steve Elmer, # 15 Exhibit 14 to Declaration of Steve Elmer, # 16 Exhibit 15 to Declaration of Steve Elmer, # 17 Exhibit 16 to Declaration of Steve Elmer, # 18 Exhibit 17 to Declaration of Steve Elmer, # 19 Exhibit 18 to Declaration of Steve Elmer, # 20 Exhibit 19 to Declaration of Steve Elmer, # 21 Exhibit 20 to Declaration of Steve Elmer, # 22 Exhibit 21 to Declaration of Steve Elmer, # 23 Exhibit 22 to Declaration of Steve Elmer, # 24 Exhibit 23 to Declaration of Steve Elmer)(Hikida, Richard) (Filed on 9/3/2008) (Entered: 09/03/2008)

09/03/2008

405 Declaration of Richard H. Hikida in Support of 404 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit 1 to Declaration of Richard Hikida, # 2 Exhibit 2 to Declaration of Richard Hikida, # 3 Exhibit 3 to Declaration of Richard Hikida, # 4 Exhibit 4 to Declaration of Richard Hikida, # 5 Exhibit 5 to Declaration of Richard Hikida, # 6 Exhibit 6 to Declaration of Richard Hikida, # 7 Exhibit 7 Part 1 to Declaration of Richard Hikida, # 8 Exhibit 7 Part 2 to Declaration of Richard Hikida, # 9 Exhibit 7 Part 3 to Declaration of Richard Hikida, # 10 Exhibit 7 Part 4 to Declaration of Richard Hikida, # 11 Exhibit 7 Part 5 of Declaration of Richard Hikida, # 12 Exhibit 7 Part 6 to Declaration of Richard Hikida, # 13 Exhibit 7 Part 7 to Declaration of Richard Hikida, # 14 Exhibit 7 Part 8 to Declaration of Richard Hikida, # 15 Exhibit 7 Part 9 to Declaration of Richard Hikida, # 16 Exhibit 7 Part 10 to Declaration of Richard Hikida, # 17 Exhibit 7 Part 11 to Declaration of Richard Hikida, # 18 Exhibit 7 Part 12 to Declaration of Richard Hikida, # 19 Exhibit 7 Part 13 to Declaration of Richard Hikida, # 20 Exhibit 7 Part 14 to Declaration of Richard Hikida, # 21 Exhibit 7 Part 15 to Declaration of Richard Hikida, # 22 Exhibit 7 Part 16 to Declaration of Richard Hikida, # 23 Exhibit 7 Part 17 to Declaration of Richard Hikida, # 24 Exhibit 7 Part 18 to Declaration of Richard Hikida, # 25 Exhibit 7 Part 19 to Declaration of Richard Hikida, # 26 Exhibit 7 Part 20 to Declaration of Richard Hikida, # 27 Exhibit 7 Part 21 to Declaration of Richard Hikida, # 28 Exhibit 7 Part 22 to Declaration of Richard Hikida, # 29 Exhibit 7 Part 23 to Declaration of Richard Hikida, # 30 Exhibit 7 Part 24 to Declaration of Richard Hikida, # 31 Exhibit 7 Part 25 to

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Declaration of Richard Hikida, # 32 Exhibit 7 Part 26 to Declaration of Richard Hikida, # 33 Exhibit 8 to Declaration of Richard Hikida, # 34 Exhibit 9 to Declaration of Richard Hikida, # 35 Exhibit 10 to Declaration of Richard Hikida, # 36 Exhibit 11 to Declaration of Richard Hikida, # 37 Exhibit 12 to Declaration of Richard Hikida, # 38 Exhibit 13 to Declaration of Richard Hikida, # 39 Exhibit 14 to Declaration of Richard Hikida, # 40 Exhibit 15 Part 1 to Declaration of Richard Hikida, # 41 Exhibit 15 Part 2 to Declaration of Richard Hikida, # 42 Exhibit 15 Part 3 to Declaration of Richard Hikida, # 43 Exhibit 16 to Declaration of Richard Hikida, # 44 Exhibit 17 to Declaration of Richard Hikida, # 45 Exhibit 18 to Declaration of Richard Hikida, # 46 Exhibit 19 to Declaration of Richard Hikida, # 47 Exhibit 20 to Declaration of Richard Hikida, # 48 Exhibit 21 to Declaration of Richard Hikida, # 49 Exhibit 22 to Declaration of Richard Hikida)(Related document(s) 404 ) (Hikida, Richard) (Filed on 9/3/2008) (Entered: 09/03/2008)

09/04/2008

406 ERRATA re 405 Declaration in Support by Taco Bell Corp. (Attachments: # 1 Exhibit 7 pages 103-104, # 2 Exhibit 7 pages 105-106)(Hikida, Richard) (Filed on 9/4/2008) Modiﬁed on 9/4/2008 (far, COURT STAFF). (Entered: 09/04/2008)

09/08/2008 407 NOTICE of Change of Address by Timothy P. Fox (Fox, Timothy) (Filed on 9/8/2008) (Entered: 09/08/2008)

09/24/2008

408 BRIEF in Opposition to 404 MOTION for Partial Summary Judgment of Taco Bell Corp. ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/24/2008) Modiﬁed on 9/24/2008 (far, COURT STAFF). (Entered: 09/24/2008)

09/24/2008

409 DECLARATION of Timothy P. Fox in Opposition to 404 Motion for Partial Summary Judgment of Taco Bell Corp. ﬁled by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates. (Attachments: # 1 Exhibit 1 to Fox Declaration, # 2 Exhibit 2 to Fox Declaration, # 3 Exhibit 3 to Fox Declaration, # 4 Exhibit 4 to Fox Declaration, # 5 Exhibit 5 to Fox Declaration, # 6 Exhibit 6 to Fox Declaration, # 7 Exhibit 7 to Fox Declaration, # 8 Exhibit 8 to Fox Declaration, # 9 Exhibit 9 to Fox Declaration, # 10 Exhibit 10 to Fox Declaration, # 11 Exhibit 11 to Fox Declaration, # 12 Exhibit 12 to Fox Declaration, # 13 Exhibit 13 to Fox Declaration, # 14 Exhibit 14 to Fox Declaration, # 15 Exhibit 15 to Fox Declaration, # 16 Exhibit 16 to Fox Declaration, # 17 Exhibit 17 to Fox Declaration, # 18 Exhibit 18 to Fox Declaration, # 19 Exhibit 19 to Fox Declaration, # 20 Exhibit 20 to Fox Declaration, # 21 Exhibit 21 to Fox Declaration, # 22 Exhibit 22 to Fox Declaration, # 23 Exhibit 23 to Fox Declaration, # 24 Exhibit 24 to Fox Declaration, # 25 Exhibit 25 to Fox Declaration, # 26 Exhibit 26 to Fox Declaration, # 27 Exhibit 27 to Fox Declaration, # 28 Exhibit 28 to Fox Declaration, # 29 Exhibit 29 to Fox Declaration, # 30 Exhibit 30 to Fox Declaration, # 31 Exhibit 31 to Fox Declaration, # 32 Exhibit 32 to Fox Declaration, # 33 Exhibit 33 to Fox Declaration, # 34 Exhibit 34 to Fox Declaration, # 35 Exhibit 35 to Fox Declaration, # 36 Exhibit 36 to Fox Declaration, # 37 Exhibit 37 to Fox Declaration, # 38 Exhibit 38 to Fox Declaration, # 39 Exhibit 39 to Fox Declaration, # 40 Exhibit 40 to Fox Declaration, # 41 Exhibit 41 to Fox Declaration, # 42 Exhibit 42 to Fox Declaration, # 43 Exhibit 43 to Fox Declaration, # 44 Exhibit 44 to Fox Declaration, # 45 Exhibit 45 to Fox Declaration, # 46 Exhibit 46 to Fox Declaration, # 47 Exhibit 47 to Fox Declaration, # 48 Exhibit 48 to Fox Declaration, # 49 Exhibit 49 to Fox Declaration, # 50 Exhibit 50 to Fox Declaration, # 51 Exhibit 51 to Fox Declaration, # 52 Exhibit 52 to Fox Declaration, # 53 Exhibit 53 to Fox Declaration, # 54 Exhibit 54 to Fox Declaration, # 55 Exhibit 55 to Fox Declaration, # 56 Exhibit 56 to Fox Declaration, # 57 Exhibit 57 to Fox Declaration, # 58 Exhibit 58 to Fox Declaration, # 59 Exhibit 59 to Fox Declaration) (Related document(s) 408 ) (Fox, Timothy) (Filed on 9/24/2008) Modiﬁed on 9/24/2008 (far, COURT STAFF). (Entered: 09/24/2008)

09/24/2008 410 Joint MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Oppo. to Defs' Motion for Partial Summary Judgment ﬁled by Frederick P Nisen. Motion Hearing set for

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09/26/2008 10/08/2008 10/22/2008 10/23/2008 11/05/2008 11/07/2008 11/19/2008
12/04/2008 12/11/2008 02/06/2009 05/29/2009

CAND-ECF
10/29/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Brief of Amici Curiae in Support of Plaintiffs' Oppo. to Defs' Motion for Partial Summary Judgment)(Nisen, Frederick) (Filed on 9/24/2008) (Entered: 09/24/2008)
411 ORDER by Judge Hamilton denying 410 Motion for Leave to File Amicus Curiae Brief (pjhlc1, COURT STAFF) (Filed on 9/26/2008) (Entered: 09/26/2008)
412 Reply Memorandum re 404 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Hikida, Richard) (Filed on 10/8/2008) (Entered: 10/08/2008)
413 CLERKS NOTICE CONTINUING MOTION HEARING. Defendant's Motion for Partial Summary Judgment set for 11/5/2008 09:00 AM. (nah, COURT STAFF) (Filed on 10/22/2008) (Entered: 10/22/2008)
414 ERRATA re 405 Declaration in Support by Taco Bell Corp. (Attachments: # 1 Exhibit 7 Pages 97-99)(Hikida, Richard) (Filed on 10/23/2008) Modiﬁed on 10/24/2008 (far, COURT STAFF). (Entered: 10/23/2008)
415 Minute Entry: Motion Hearing held on 11/5/2008 before Phyllis J. Hamilton re 404 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp. (Court Reporter Sahar McVickar (415) 626-6060) (nah, COURT STAFF) (Date Filed: 11/5/2008) Modiﬁed on 11/5/2008 (far, COURT STAFF). (Entered: 11/05/2008)
416 ORDER by Judge Hamilton denying 404 Motion for Partial Summary Judgment (pjhlc1, COURT STAFF) (Filed on 11/7/2008) (Entered: 11/07/2008)
417 Transcript of Proceedings held on 11/5/08, before Judge Phyllis J. Hamilton. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 6266060/sahar_mcvickar@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. Release of Transcript Restriction set for 2/17/2009. (McVickar, Sahar) (Filed on 11/19/2008) (Entered: 11/19/2008)
418 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates re 387 Order on Motion to Compel - Joint Statement (Fox, Timothy) (Filed on 12/4/2008) (Entered: 12/04/2008)
419 ORDER re 418 Notice (Other) ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge James Larson on 12/11/08. (jlsec, COURT STAFF) (Filed on 12/11/2008) (Entered: 12/11/2008)
420 NOTICE of Change of Address by Timothy P. Fox (Fox, Timothy) (Filed on 2/6/2009) (Entered: 02/06/2009)
421 MOTION to Continue Case Management and Scheduling Order Deadlines ﬁled by Taco Bell Corp.. Motion Hearing set for 7/8/2009 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Afﬁdavit of Richard H. Hikida, # 2 Exhibit 1-7 to Declaration of Richard H. Hikida, # 3 Exhibit 8-11 to Declaration of Richard H. Hikida, # 4 Exhibit 12-17 to Declaration of Richard H. Hikida, # 5 Exhibit 18-21 to Declaration of Richard H. Hikida, # 6 Exhibit 22-23 to Declaration of Richard H. Hikida, # 7 Exhibit 2425 to Declaration of Richard H. Hikida, # 8 Exhibit 26-38 to Declaration of Richard H. Hikida, # 9 Exhibit 39-57 to Declaration of Richard H. Hikida, # 10 Exhibit 58-59 to Declaration of Richard H. Hikida, # 11 Exhibit 60-61 to Declaration of Richard H. Hikida, # 12 Exhibit 62-63 to Declaration of Richard H. Hikida, # 13 Exhibit 64-65 to Declaration of Richard H. Hikida, # 14 Afﬁdavit of Robert G. Reeves, # 15 Afﬁdavit of

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Steve Elmer, # 16 Afﬁdavit of Sabrina Wright)(Hikida, Richard) (Filed on 5/29/2009) (Entered: 05/29/2009)

05/29/2009

422 Proposed Order re 421 MOTION to Continue Case Management and Scheduling Order Deadlines by Taco Bell Corp.. (Hikida, Richard) (Filed on 5/29/2009) (Entered: 05/29/2009)

06/01/2009

423 ORDER re 421 MOTION to Continue Case Management and Scheduling Order Deadlines ﬁled by Taco Bell Corp. Signed by Judge Hamilton on 6/1/2009. (pjhlc1, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/01/2009)

06/01/2009 424 CLERKS NOTICE REGARDING CHAMBERS COPIES (nah, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/01/2009)

06/05/2009

425 MOTION for Leave to File Excess Pages ﬁled by Taco Bell Corp.. (Attachments: # 1 Afﬁdavit of Richard H. Hikida, # 2 Exhibit 1-3 to Declaration of Richard H. Hikida, # 3 Proposed Order)(Hikida, Richard) (Filed on 6/5/2009) (Entered: 06/05/2009)

06/05/2009

426 NOTICE by Francie E. Moeller, Edward Muegge, Katherine Corbett, Craig Thomas Yates Joint Statement of Issues Re: Plaintiffs Motion to Compel Revised Privilege Log (Fox, Timothy) (Filed on 6/5/2009) (Entered: 06/05/2009)

06/08/2009

427 Memorandum in Opposition re 421 MOTION to Continue Case Management and Scheduling Order Deadlines ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Afﬁdavit Declaration of Amy F. Robertson, # 2 Proposed Order)(Robertson, Amy) (Filed on 6/8/2009) (Entered: 06/08/2009)

06/08/2009

428 Memorandum in Opposition re 425 MOTION for Leave to File Excess Pages ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 6/8/2009) (Entered: 06/08/2009)

06/11/2009

429 ORDER re 426 Notice (Other) ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge James Larson on 6/11/09. (wh, COURT STAFF) (Filed on 6/11/2009) (Entered: 06/11/2009)

06/15/2009 430 ORDER by Judge Hamilton granting in part and denying in part 425 Motion for Leave to File Excess Pages (pjhlc1, COURT STAFF) (Filed on 6/15/2009) (Entered: 06/15/2009)

06/15/2009

431 Reply Memorandum re 421 MOTION to Continue Case Management and Scheduling Order Deadlines ﬁled byTaco Bell Corp.. (Attachments: # 1 Afﬁdavit of Richard L. Deleissegues, # 2 Afﬁdavit of Richard H. Hikida, # 3 Exhibit Part 1 to Declaration of Richard H. Hikida, # 4 Exhibit Part 2 to Declaration of Richard H. Hikida, # 5 Objection to Amy F. Robertson's Purported Declaration)(Hikida, Richard) (Filed on 6/15/2009) (Entered: 06/15/2009)

06/16/2009

432 MOTION to Compel Compliant Privilege Log ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 7/29/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fox, Timothy) (Filed on 6/16/2009) (Entered: 06/16/2009)

06/16/2009

433 ERRATA re 427 Memorandum in Opposition, to Defendant's Motion for Continuance of Case Management and Scheduling Order Deadlines by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Revised Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 6/16/2009) (Entered: 06/16/2009)

06/16/2009 434 Proposed Order re 432 MOTION to Compel Compliant Privilege Log by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed

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06/18/2009 07/08/2009 07/15/2009
07/20/2009 07/21/2009
07/29/2009
07/30/2009
07/31/2009 07/31/2009 08/03/2009
08/03/2009 08/11/2009 08/12/2009 08/17/2009

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on 6/16/2009) (Entered: 06/16/2009)
435 ORDER by Judge Hamilton granting in part and denying in part 421 Motion to Continue (pjhlc1, COURT STAFF) (Filed on 6/18/2009) (Entered: 06/18/2009)
436 Memorandum in Opposition re 432 MOTION to Compel Compliant Privilege Log ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Richard H. Hikida)(Hikida, Richard) (Filed on 7/8/2009) (Entered: 07/08/2009)
437 Reply to Opposition re 432 MOTION to Compel Compliant Privilege Log ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Exhibit 1 to Declaration of Timothy P. Fox, # 3 Exhibit 2 to Declaration of Timothy P. Fox, # 4 Exhibit 3 to Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 7/15/2009) (Entered: 07/15/2009)
438 OBJECTIONS to re 437 Reply to Opposition, by Taco Bell Corp.. (Attachments: # 1 Supplemental Declaration of Richard H. Hikida)(Hikida, Richard) (Filed on 7/20/2009) (Entered: 07/20/2009)
439 RESPONSE to re 438 Objection to Plaintiffs' Reply Brief in Support of Their Motion to Compel Compliant Privilege Log by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 7/21/2009) (Entered: 07/21/2009)
440 Minute Entry: Motion Hearing held on 7/29/2009 before James Larson (Date Filed: 7/29/2009) re 432 MOTION to Compel Compliant Privilege Log ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Kathy Wyatt.) (wh, COURT STAFF) (Date Filed: 7/29/2009) (Entered: 07/29/2009)
441 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates re 432 MOTION to Compel Compliant Privilege Log, 440 Motion Hearing, Plaintiffs' Submission of Deposition Transcripts (Attachments: # 1 Exhibit 1 - Deposition Transcript of Aaron Kane, # 2 Exhibit 2 - Deposition Transcript of Sabrina Marie Wright)(Fox, Timothy) (Filed on 7/30/2009) (Entered: 07/30/2009)
442 OBJECTIONS to re 441 Notice (Other), Notice (Other) to Plaintiffs' Submission of Deposition Transcripts by Taco Bell Corp.. (Attachments: # 1 Declaration of Richard H. Hikida)(Hikida, Richard) (Filed on 7/31/2009) (Entered: 07/31/2009)
443 NOTICE by Taco Bell Corp. of Lodgment of Deposition Transcripts of Aaron Kane and Sabrina Wright (Hikida, Richard) (Filed on 7/31/2009) (Entered: 07/31/2009)
444 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates re 442 Objection Plaintiffs' Response to Taco Bell Corp.'s Objections to Plaintiffs' Submission of Deposition Transcripts and Response Thereto (Fox, Timothy) (Filed on 8/3/2009) (Entered: 08/03/2009)
445 ORDER by Judge James Larson Denying without Prejudice 432 Motion to Compel (jlsec, COURT STAFF) (Filed on 8/3/2009) (Entered: 08/04/2009)
446 MOTION to Compel ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 9/16/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Fox, Timothy) (Filed on 8/11/2009) (Entered: 08/11/2009)
447 CLERKS NOTICE Continuing Motion Hearing Motion Hearing set for 9/30/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (wh, COURT STAFF) (Filed on 8/12/2009) (Entered: 08/12/2009)
448 Transcript of Proceedings held on 7-29-09, before Judge James Larson. Court

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09/09/2009
09/09/2009 09/15/2009 09/15/2009 09/22/2009

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Reporter/Transcriber Katherine Wyatt, Telephone number 925-212-5224. 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 11/12/2009. (kpw, COURT STAFF) (Filed on 8/17/2009) (Entered: 08/17/2009)
449 CLERKS NOTICE
Effective September 14, 2009, Judge Phyllis Hamilton's courtroom and chambers will be located in the Oakland Courthouse, Courtroom #3, 3rd ﬂoor, 1301 Clay Street, Oakland, California 94612.
On or after September 14, 2009, all ﬁlings for matters pending on Judge Hamiltons docket, all court appearances, and all deliveries of chambers' copies of documents must be made at the Oakland Courthouse.
The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.
Please note that all of Judge Hamilton's case ﬁles will be moved to the Oakland Courthouse, therefore all cases numbers assigned to her will be changed slightly to reﬂect the correct venue. Previously, all case numbers started with "3:" to indicate the San Francisco ofﬁce (Example: 3:09-cv-12345-PJH). As of September 14th, 2009, all of Judge Hamilton's case ﬁles will begin with "4:" to indicate the Oakland ofﬁce, but everything else will stay the same (Example: 4:09-cv-12345-PJH). When e-ﬁling, using the short case number format will always avoid problems when searching for the correct case: 09-12345 (YY-NNNNN).
For information on the Oakland Courthouse's accessibility, parking, driving directions, public transit, hotels and other helpful links, please visit our website: http://www.cand.uscourts.gov, click on "Court Information" on the right hand side of our main page, then select the Oakland link under "Address and Jurisdiction". The main telephone number for the Oakland Division is 510 637-3530.
(far, COURT STAFF) (Filed on 9/9/2009) (Entered: 09/09/2009)
450 Memorandum in Opposition re 446 MOTION to Compel ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Richard H. Hikida)(Hikida, Richard) (Filed on 9/9/2009) (Entered: 09/09/2009)
451 Reply Brief in Support re 446 MOTION to Compel ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/15/2009) Modiﬁed on 9/16/2009 (vlk, COURT STAFF). (Entered: 09/15/2009)
452 Statement [Joint] of Issues Re: Plaintiffs' Motion to Overrule Objection to Unannounced Surveys and Request for Expedited Consideration by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 9/15/2009) (Entered: 09/15/2009)
453 ORDER re 452 Statement, ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge James Larson on 9/22/09. (jlsec, COURT STAFF) (Filed on 9/22/2009) (Entered: 09/22/2009)

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454 OBJECTIONS to re 453 Order by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Afﬁdavit Declaration of Amy F. Robertson, # 2 Afﬁdavit Declaration of Timothy P. Fox, # 3 Afﬁdavit Declaration of Eric McSwain, # 4 Proposed Order)(Robertson, Amy) (Filed on 9/25/2009) (Entered: 09/25/2009)

09/30/2009

455 Minute Entry: Motion Hearing held on 9/30/2009 before James Larson (Date Filed: 9/30/2009) re 446 MOTION to Compel ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Connie Kuhl.) (wh, COURT STAFF) (Date Filed: 9/30/2009) (Entered: 09/30/2009)

10/01/2009

456 Transcript of Proceedings held on 9-30-09, before Judge James Larson. Court Reporter/Transcriber Connie Kuhl, Telephone number 415-431-2020. 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 12/28/2009. (ck, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)

10/06/2009 457 ORDER by Judge James Larson Granting Plaintiffs' Motion to Compel 446 Motion to Compel. (jlsec, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)

10/20/2009

458 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp.. Motion Hearing set for 12/16/2009 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Declaration of Steve Elmer, # 2 Declaration of Robert Reeves, # 3 Proposed Order, # 4 Declaration of Richard Hikida)(Hurley, Gregory) (Filed on 10/20/2009) (Entered: 10/21/2009)

10/21/2009

459 EXHIBITS re 458 MOTION for Partial Summary Judgment to Declaration of Richard H. Hikida ﬁled byTaco Bell Corp.. (Related document(s) 458 ) (Hurley, Gregory) (Filed on 10/21/2009) (Entered: 10/21/2009)

10/22/2009 460 ERRATA re 458 MOTION for Partial Summary Judgment by Taco Bell Corp.. (Hurley, Gregory) (Filed on 10/22/2009) (Entered: 10/22/2009)

10/22/2009 461 ORDER re 454 Objection. Signed by Judge Hamilton on 10/22/2009. (pjhlc1, COURT STAFF) (Filed on 10/22/2009) (Entered: 10/22/2009)

10/23/2009

462 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibits 1-8) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

463 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibits 9-17) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

464 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibit 18, Part 1 of 5) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

466 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibit 18, Part 2 of 5) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

467 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp..(Exhibit 18, Part 3 of 5) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009 468 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment

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ﬁled byTaco Bell Corp..(Exhibit 18, Part 4 of 5) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

469 Declaration of Stephen Elmer in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibit 18, Part 5 of 5) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

470 Declaration of Richard H. Hikida in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibit 1-2) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/23/2009

471 Declaration of Richard H. Hikida in Support of 458 MOTION for Partial Summary Judgment ﬁled byTaco Bell Corp.. (Exhibit 3-73) (Related document(s) 458 ) (vlk, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/26/2009)

10/26/2009

465 Joint Submission of Document Production Plan re 457 Order on Motion to Compel by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 10/26/2009) Modiﬁed on 10/27/2009 (vlk, COURT STAFF). (Entered: 10/26/2009)

10/27/2009

472 ORDER re 465 Statement ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge James Larson on 10/27/09. (jlsec, COURT STAFF) (Filed on 10/27/2009) (Entered: 10/27/2009)

10/29/2009 473 OBJECTIONS to re 472 Order by Taco Bell Corp.. (Attachments: # 1 Declaration of Richard H. Hikida)(Hurley, Gregory) (Filed on 10/29/2009) (Entered: 10/29/2009)

10/29/2009

474 Request for Judicial Notice re 473 Objection ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit Part 1, # 2 Exhibit Part 2, # 3 Exhibit Part 3, # 4 Exhibit Part 4)(Related document(s) 473 ) (Hurley, Gregory) (Filed on 10/29/2009) (Entered: 10/29/2009)

10/30/2009

475 RESPONSE to re 473 Objection to Magistrate Judge's Order by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 10/30/2009) (Entered: 10/30/2009)

11/02/2009

476 ORDER. Signed by Judge Hamilton on 11/2/2009. (pjhlc1, COURT STAFF) (Filed on 11/2/2009) (Entered: 11/02/2009)

11/05/2009

477 ORDER. Signed by Judge Hamilton on 11/5/2009. (pjhlc1, COURT STAFF) (Filed on 11/5/2009) (Entered: 11/05/2009)

11/06/2009

478 ORDER re 473 Objection ﬁled by Taco Bell Corp.. Signed by Judge Hamilton on 11/6/2009. (pjhlc1, COURT STAFF) (Filed on 11/6/2009) (Entered: 11/06/2009)

11/09/2009

479 Statement re 477 Order In Writing Clarifying Exhibits Submitted in Support of Taco Bell Corp.'s Motion for Partial Summary Judgment by Taco Bell Corp.. (Hurley, Gregory) (Filed on 11/9/2009) (Entered: 11/09/2009)

11/09/2009

480 MOTION for Leave to File a Motion for Reconsideration of Order Overruling Objections ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 11/9/2009) (Entered: 11/09/2009)

11/10/2009

481 MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 12/16/2009 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 11/10/2009) (Entered: 11/10/2009)

11/10/2009

482 Declaration of Timothy P. Fox in Support of 481 MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in

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Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Related document(s) 481 ) (Fox, Timothy) (Filed on 11/10/2009) (Entered: 11/10/2009)
483 Memorandum in Opposition re 458 MOTION for Partial Summary Judgment ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order, # 2 Declaration of Katherine Corbett, # 3 Declaration of Enrique Delara, # 4 Declaration of James Evans, # 5 Declaration of Elaine Frederickson, # 6 Declaration of Mary Grassi, # 7 Declaration of Nancy Hall, # 8 Declaration of Arnetta Hardnett, # 9 Declaration of Carmen Mortimer, # 10 Declaration of Sharon Pliska, # 11 Declaration of Mary Ross, # 12 Declaration of Roger Wilkie, # 13 Declaration of Craig Thomas Yates)(Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)
484 Declaration of Eric D. McSwain in Support of 483 Memorandum in Opposition,, ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibits 1-3 to the Declaration of Eric D. McSwain, # 2 Manual Filing Notiﬁcation - Exhibits 4-252 to the Declaration of Eric D. McSwain, # 3 Manual Filing Notice - Errata & Exhibits 253-255 to the Declaration of Eric D. McSwain)(Related document(s) 483 ) (Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)
485 Declaration of James L.E. Terry in Support of 483 Memorandum in Opposition,, to Defendant's Motion for Partial Summary Judgment ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Manual Filing Notice Exhibits 1-12 to the Declaration of James L.E. Terry, # 2 Exhibits 13-15 to the Declaration of James L.E. Terry)(Related document(s) 483 ) (Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)
486 ORDER by Judge Hamilton denying 480 Motion for Leave to File Motion for Reconsideration (pjhlc1, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)
487 ORDER. Signed by Judge Hamilton on 11/10/2009. (pjhlc1, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)
488 Declaration of Amy F. Robertson in Support of 483 Memorandum in Opposition,, to Defendant's Motion for Partial Summary Judgment ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit 1 to the Declaration of Amy F. Robertson, # 2 Exhibits 2-11 to the Declaration of Amy F. Robertson, # 3 Exhibit 12 to the Declaration of Amy F. Robertson, # 4 Exhibits 13-14 to the Declaration of Amy F. Robertson, # 5 Exhibits 15-37 to the Declaration of Amy F. Robertson)(Related document(s) 483 ) (Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)
489 Declaration of Ashley K. Boothby in Support of 483 Memorandum in Opposition,, to Defendant's Motion for Partial Summary Judgment ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Manual Filing Notice Exhibits 1-132 to the Declaration of Ashley K. Boothby)(Related document(s) 483 ) (Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)
490 Declaration of Darryl D. Collins in Support of 483 Memorandum in Opposition,, to Defendant's Motion for Summary Judgment ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 483 ) (Robertson, Amy) (Filed on 11/10/2009) (Entered: 11/10/2009)

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CAND-ECF
491 EXHIBITS 1-12 (in DVD Format) re 485 Declaration of James L.E. Terry in Support of Opposition ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 485 ) (vlk, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/12/2009)
492 EXHIBITS 1-132 (in DVD Format) to re 489 Declaration of Ashley Boothby in Support of Opposition ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 489 ) (vlk, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/12/2009)
493 EXHIBITS 4-252 (in DVD Format) re 484 Declaration of Eric D. McSwain in Support of Opposition ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 484 ) (vlk, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/12/2009)
494 EXHIBITS 81, 151, 214, 232 & 253-255 (in DVD Format) re 484 Declaration of Eric D. McSwain in Support of Opposition ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Related document(s) 484 ) (vlk, COURT STAFF) (Filed on 11/12/2009) (Entered: 11/12/2009)
495 Memorandum in Opposition re 481 MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 11/25/2009) (Entered: 11/25/2009)
496 REPLY Memorandum in Support re 458 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp.. (Attachments: # 1 Declaration of Dawn Bennyhoff, # 2 Declaration of Richard H. Hikida, # 3 Exhibit 1 to Declaration of Richard H. Hikida, # 4 Exhibit 2-7 to Declaration of Richard H. Hikida, # 5 Declaration of Sabrina Wright, # 6 Declaration of Steve Elmer, # 7 Request for Judicial Notice)(Hurley, Gregory) (Filed on 11/25/2009) Modiﬁed on 11/30/2009 (vlk, COURT STAFF). (Entered: 11/25/2009)
497 ERRATA re 496 Reply Memorandum in Support of Motion, Supplemental Declaration of Richard H. Hikida by Taco Bell Corp.. (Hikida, Richard) (Filed on 11/26/2009) Modiﬁed on 11/30/2009 (vlk, COURT STAFF). (Entered: 11/26/2009)
498 Supplemental Declaration of Steve Elmer in Support of 496 Reply Memorandum (Part 1 of 4) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
499 Supplemental Declaration of Steve Elmer in Support of 496 Reply Memorandum (Part 2 of 4) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
500 Supplemental Declaration of Steve Elmer in Support of 496 Reply Memorandum (Part 3 of 4) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
501 Supplemental Declaration of Steve Elmer in Support of 496 Reply Memorandum (Part 4 of 4) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
502 Declaration of Sabrina Wright in Support of 496 Reply Memorandum ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)

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CAND-ECF
503 Declaration of Dawn L. Bennyhoff in Support of 496 Reply Memorandum (Part 1 of 2) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
504 Declaration of Dawn L. Bennyhoff in Support of 496 Reply Memorandum (Part 2 of 2) ﬁled byTaco Bell Corp.. (Related document(s) 496 ) (vlk, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
505 Reply Memorandum in Support of re 481 MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support MOTION to Strike 464 Declaration in Support, 468 Declaration in Support, 466 Declaration in Support, 467 Declaration in Support, 458 MOTION for Partial Summary Judgment, 469 Declaration in Support ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 12/2/2009) Modiﬁed on 12/3/2009 (vlk, COURT STAFF). (Entered: 12/02/2009)
506 OBJECTIONS to re 496 Reply Memorandum to Motion, by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 12/2/2009) Modiﬁed on 12/3/2009 (vlk, COURT STAFF). (Entered: 12/02/2009)
507 Administrative MOTION for Leave to File Surrreply Addressing New Cases in Section J of Defendant's Reply Brief ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 12/16/2009 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Plaintiffs' Proposed Surreply Addressing New Cases in Section J of Defendant's Reply Brief, # 2 Declaration of Amy F. Robertson, # 3 Proposed Order)(Robertson, Amy) (Filed on 12/2/2009) Modiﬁed on 12/3/2009 (vlk, COURT STAFF). (Entered: 12/02/2009)
508 ORDER DENYING REQUEST TO FILE SURREPLY by Judge Phyllis J. Hamilton denying 507 Motion for Leave to File (nah, COURT STAFF) (Filed on 12/4/2009) (Entered: 12/04/2009)
509 Declaration of Samaria Romero in Response to re 487 Order by Taco Bell Corp.. (Hurley, Gregory) (Filed on 12/7/2009) Modiﬁed on 12/8/2009 (vlk, COURT STAFF). (Entered: 12/07/2009)
510 Docketed into wrong case. Please disregard this entry. Letter from Amy F. Robertson Re: Docket No. 271. (Robertson, Amy) (Filed on 12/11/2009) Modiﬁed on 12/14/2009 (vlk, COURT STAFF). (Entered: 12/11/2009)
511 Minute Entry: Motion Hearing held on 12/16/2009 before Phyllis J. Hamilton (Date Filed: 12/16/2009) re 458 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 12/16/2009) (Entered: 12/16/2009)
512 ORDER by Judge Hamilton denying 458 Motion for Partial Summary Judgment; ﬁnding as moot 481 Motion to Strike (pjhlc1, COURT STAFF) (Filed on 12/23/2009) (Entered: 12/23/2009)
513 MOTION for Leave to Issue Notice to the Class Concerning the Upcoming Trial ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 3/17/2010 09:00 AM in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 2/10/2010) (Entered: 02/10/2010)
514 Memorandum in Opposition re 513 MOTION for Leave to Issue Notice to the Class Concerning the Upcoming Trial ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Richard H. Hikida)(Hurley, Gregory) (Filed on 2/24/2010) (Entered: 02/24/2010)

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515 Reply Brief in Support re 513 MOTION for Leave to Issue Notice to the Class Concerning the Upcoming Trial ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 3/3/2010) Modiﬁed on 3/4/2010 (vlk, COURT STAFF). (Entered: 03/03/2010)

03/05/2010

516 STIPULATION to Continue Hearing Date on Plaintiffs' Motion for Leave to Issue Notice to the Class Concerning the Upcoming Trial by Taco Bell Corp.. (Attachments: # 1 Proposed Order)(Hurley, Gregory) (Filed on 3/5/2010) (Entered: 03/05/2010)

03/08/2010

517 ORDER GRANTING CONTINUANCE OF HEARING DATE ON PLAINTIFFS' MOTION FOR LEAVE TO ISSUE NOTICE TO THE CLASS CONCERNING THE UPCOMING TRIAL re 516 Stipulation ﬁled by Taco Bell Corp., Set/Reset Deadlines as to 513 MOTION for Leave to Issue Notice to the Class Concerning the Upcoming Trial. Motion Hearing set for 3/24/2010 09:00 AM. Signed by Judge Phyllis J. Hamilton on 3/8/10. (nah, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/08/2010)

03/12/2010 518 NOTICE of Appearance by Bill Lann Lee (Lee, Bill) (Filed on 3/12/2010) (Entered: 03/12/2010)

03/15/2010 519 NOTICE of Appearance by Andrew Lah (Lah, Andrew) (Filed on 3/15/2010) (Entered: 03/15/2010)

03/18/2010

520 OBJECTIONS to re 518 Notice of Appearance, 519 Notice of Appearance by Taco Bell Corp.. (Attachments: # 1 Request for Judicial Notice, # 2 Declaration of Richard L. Deleissegues)(Hurley, Gregory) (Filed on 3/18/2010) (Entered: 03/18/2010)

03/22/2010

521 MOTION for Extension of Time to Serve List of Violations ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Proposed Order)(Robertson, Amy) (Filed on 3/22/2010) Modiﬁed on 3/23/2010 (vlk, COURT STAFF). (Entered: 03/22/2010)

03/24/2010

522 Minute Entry: Motion Hearing held on 3/24/2010 before Phyllis J. Hamilton (Date Filed: 3/24/2010) re 521 MOTION for Extension of Time to File Serve List of Violations ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates, 513 MOTION for Leave to Issue Notice to the Class Concerning the Upcoming Trial ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Raynee Mercado.) (nah, COURT STAFF) (Date Filed: 3/24/2010) (Entered: 03/25/2010)

04/02/2010

523 STIPULATION and Proposed Order Re: Bifurcation of Discovery and Exemplar Trial by Taco Bell Corp.. (Attachments: # 1 Proposed Order)(Hurley, Gregory) (Filed on 4/2/2010) Modiﬁed on 4/5/2010 (vlk, COURT STAFF). (Entered: 04/02/2010)

04/05/2010

524 STIPULATION AND ORDER RE: BIFURCATION OF DISCOVERY AND EXEMPLAR TRIAL re 523 Stipulation ﬁled by Taco Bell Corp. Signed by Judge Phyllis J. Hamilton on 4/5/10. (nah, COURT STAFF) (Filed on 4/5/2010) (Entered: 04/05/2010)

05/05/2010 525 NOTICE by Taco Bell Corp. of Unavailability of Counsel (Hurley, Gregory) (Filed on 5/5/2010) (Entered: 05/05/2010)

06/23/2010

526 Plaintiffs' Submission of Proposed Injunction and Lists of Violations by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Fox, Timothy) (Filed on 6/23/2010) Modiﬁed on 6/23/2010 (vlk, COURT STAFF). (Entered: 06/23/2010)

10/21/2010

527 Joint Statement Of Issues Re: Plaintiffs' Motion for a Protective Order and Request for Expedited Consideration by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp.. (Fox, Timothy) (Filed on 10/21/2010) Modiﬁed on

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10/22/2010 (vlk, COURT STAFF). Modiﬁed on 10/22/2010 (vlk, COURT STAFF). (Entered: 10/21/2010)
528 ORDER re 527 Statement, ﬁled by Taco Bell Corp., Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge James Larson on 10/22/10. (jlsec, COURT STAFF) (Filed on 10/22/2010) (Entered: 10/22/2010)
529 Stipulated Motion Concerning the Court's October 22, 2010 Order, and Request for Expedited Consideration by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 10/28/2010) Modiﬁed on 10/29/2010 (vlk, COURT STAFF). (Entered: 10/28/2010)
MOTIONS 529 MOTION Concerning the Court's October 22, 2010 Order, and Request for Expedited Consideration REFERRED to Magistrate Judge James Larson. (vlk, COURT STAFF) (Filed on 10/28/2010) (Entered: 10/29/2010)
530 ORDER by Judge James Larson Granting 529 Motion for Extension of Time (jlsec, COURT STAFF) (Filed on 10/29/2010) (Entered: 11/01/2010)
531 Statement in Support of Its Request for Leave to File a Motion for Partial Summary Judgment in Compliance with Civil Minutes of 3/24/10 by Taco Bell Corp.. (Hikida, Richard) (Filed on 11/4/2010) (Entered: 11/04/2010)
532 Declaration of Richard H. Hikida in Support of 531 Statement its Request for Leave to File a Partial Motion for Summary Judgment in Compliance with Civil Minutes of 3/24/10 ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit Exhibits 1-5, # 2 Exhibit Exhibits 6-12)(Related document(s) 531 ) (Hikida, Richard) (Filed on 11/4/2010) (Entered: 11/04/2010)
533 RESPONSE to 526 Plaintiffs' Unilateral Submission of Proposed Injunction and Lists of Violations by Taco Bell Corp.. (Hikida, Richard) (Filed on 11/4/2010) Modiﬁed on 11/5/2010 (vlk, COURT STAFF). (Entered: 11/04/2010)
534 Declaration of Richard H. Hikida in Support of 533 Response to Plaintiffs' Unilateral Submission of Proposed Injunction and Lists of Violations ﬁled by Taco Bell Corp.. (Attachments: # 1 Exhibit 1-7, # 2 Exhibit 8-part 1, # 3 Exhibit 8-part 2, # 4 Exhibit 8part 3, # 5 Exhibit 8-part 4, # 6 Exhibit 8-part 5, # 7 Exhibit 9 and 10)(Related document(s) 533 ) (Hikida, Richard) (Filed on 11/4/2010) Modiﬁed on 11/5/2010 (vlk, COURT STAFF). (Entered: 11/04/2010)
535 RESPONSE to re 531 Statement by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 11/5/2010) (Entered: 11/05/2010)
536 Plaintiffs' Reply in Support Of 533 its Submission of Draft Injunction and Lists of Violations by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 11/5/2010) Modiﬁed on 11/8/2010 (vlk, COURT STAFF). (Entered: 11/05/2010)
537 STIPULATION re Depositions, ﬁled by Taco Bell Corp., Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order Re Depositions)(Hikida, Richard) (Filed on 11/10/2010) Modiﬁed on 11/12/2010 (jlm, COURT STAFF). (Entered: 11/10/2010)
538 ORDER re 531 Statement ﬁled by Taco Bell Corp.. Signed by Judge Hamilton on 11/12/2010. (pjhlc1, COURT STAFF) (Filed on 11/12/2010) (Entered: 11/12/2010)
539 ORDER RE: DEPOSITIONS re 537 Stipulation, ﬁled by Taco Bell Corp., Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge

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11/12/2010 12/09/2010 12/09/2010 12/10/2010 12/16/2010
12/20/2010 03/10/2011 03/31/2011
04/07/2011 04/07/2011 04/07/2011
04/07/2011 04/07/2011
04/07/2011

CAND-ECF
James Larson on 11/12/10. (jlsec, COURT STAFF) (Filed on 11/12/2010) (Entered: 11/15/2010)
Set/Reset Hearings: Case Management Conference set for 12/16/2010 at 02:00 PM before Hon. Phyllis J. Hamilton. (kc, COURT STAFF) (Filed on 11/12/2010) (Entered: 11/15/2010)
540 JOINT CASE MANAGEMENT STATEMENT ﬁled by Taco Bell Corp.. (Hikida, Richard) (Filed on 12/9/2010) (Entered: 12/09/2010)
541 CASE MANAGEMENT STATEMENT ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 12/9/2010) (Entered: 12/09/2010)
542 JOINT CASE MANAGEMENT STATEMENT ﬁled by Taco Bell Corp. and all plaintiffs. (Hikida, Richard) (Filed on 12/10/2010) Modiﬁed on 12/13/2010 (kk, COURT STAFF). (Entered: 12/10/2010)
543 Minute Entry: Further Case Management Conference held on 12/16/2010 before Phyllis J. Hamilton (Date Filed: 12/16/2010). Bench Trial set for 6/6/2011 08:30 AM before Hon. Phyllis J. Hamilton. Pretrial Conference set for 5/5/2011 02:00 PM before Hon. Phyllis J. Hamilton. (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 12/16/2010) (Entered: 12/17/2010)
544 CASE MANAGEMENT AND PRETRIAL ORDER. Signed by Judge Phyllis J. Hamilton on 12/20/10. (nah, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)
545 NOTICE of Change of Address by Antonio Michael Lawson , Lawson Law Ofﬁces (Lawson, Antonio) (Filed on 3/10/2011) (Entered: 03/10/2011)
546 MOTION for Hearing to Exclude Expert Testimony Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc.; Memorandum of Points and Authorities in Support Thereof ﬁled by Taco Bell Corp.. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Hikida, Richard) (Filed on 3/31/2011) (Entered: 03/31/2011)
547 Exhibit List by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates.. (Fox, Timothy) (Filed on 4/7/2011) (Entered: 04/07/2011)
548 Witness List by Craig Thomas Yates, Katherine Corbett, Edward Muegge, Francie E. Moeller. (Fox, Timothy) (Filed on 4/7/2011) (Entered: 04/07/2011)
549 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates Plaintiffs Designation of Deposition Excerpts for Witnesses Who May Not Testify in Person, and Other Discovery Responses That May Be Offered at Trial (Fox, Timothy) (Filed on 4/7/2011) (Entered: 04/07/2011)
550 TRIAL BRIEF by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/7/2011) (Entered: 04/07/2011)
551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 4/7/2011) (Entered: 04/07/2011)
552 Declaration of Amy F. Robertson in Support re 551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed by Katherine Corbett, Francie E. Moeller,

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04/07/2011 04/07/2011 04/07/2011
04/07/2011 04/07/2011 04/07/2011 04/13/2011 04/13/2011 04/14/2011
04/14/2011
04/21/2011 04/21/2011 04/21/2011

CAND-ECF
Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Robertson, Amy) (Filed on 4/7/2011) Modiﬁed on 4/8/2011 (vlk, COURT STAFF). (Entered: 04/07/2011)
553 Joint Pretrial Conference Statement by Taco Bell Corp., Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Hurley, Gregory) (Filed on 4/7/2011) Modiﬁed on 4/8/2011 (vlk, COURT STAFF). (Entered: 04/07/2011)
554 TRIAL BRIEF by Taco Bell Corp.. (Hurley, Gregory) (Filed on 4/7/2011) (Entered: 04/07/2011)
555 MOTION in Limine ﬁled by Taco Bell Corp.. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Declaration of Richard H. Hikida in Support of Taco bell Corp.'s Motion in Limine #4, # 2 Declaration of Richard H. Hikida in Support of Taco bell Corp.'s Motion in Limine #4) (Hurley, Gregory) (Filed on 4/7/2011) (Entered: 04/07/2011)
556 MOTION Taco Bell Corp.'s Request Re: Treatment of Conﬁdential Documents ﬁled by Taco Bell Corp.. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Hurley, Gregory) (Filed on 4/7/2011) (Entered: 04/07/2011)
557 Witness List by Taco Bell Corp.. (Hurley, Gregory) (Filed on 4/7/2011) (Entered: 04/07/2011)
558 Exhibit List by Taco Bell Corp... (Hurley, Gregory) (Filed on 4/7/2011) (Entered: 04/07/2011)
559 AMENDED Exhibit List re 558 by Taco Bell Corp. (Hikida, Richard) (Filed on 4/13/2011) Modiﬁed on 4/14/2011 (vlk, COURT STAFF). (Entered: 04/13/2011)
560 AMENDED Witness List re 557 by Taco Bell Corp. (Hikida, Richard) (Filed on 4/13/2011) Modiﬁed on 4/14/2011 (vlk, COURT STAFF). (Entered: 04/13/2011)
561 RESPONSE (re 546 MOTION for Hearing to Exclude Expert Testimony Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc.; Memorandum of Points and Authorities in Support Thereof ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Afﬁdavit Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 4/14/2011) (Entered: 04/14/2011)
562 MOTION to Amend/Correct 551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed to Add Witnesses Disclosed After Original Motion ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Afﬁdavit Declaration of Amy F. Robertson, # 2 Proposed Order)(Robertson, Amy) (Filed on 4/14/2011) (Entered: 04/14/2011)
563 REPLY (re 546 MOTION for Hearing to Exclude Expert Testimony Pursuant to Daubert V. Merrell Dow Pharmaceuticals, Inc.; Memorandum of Points and Authorities in Support Thereof ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
564 RESPONSE (re 555 MOTION in Limine ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 4/21/2011) (Entered: 04/21/2011)
565 Declaration of Timothy P. Fox in Support of 564 Opposition/Response to Motion in Limine ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas

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04/21/2011 04/21/2011 04/21/2011 04/21/2011 04/21/2011
04/27/2011
04/27/2011
05/02/2011 05/02/2011 05/03/2011 05/03/2011

CAND-ECF
Yates. (Related document(s) 564 ) (Fox, Timothy) (Filed on 4/21/2011) (Entered: 04/21/2011)
566 RESPONSE (re 551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
567 Declaration of Richard H. Hikida in Support of 566 Opposition/Response to Motion for Leave to Amend Motion in Limine to Add Witnesses Undisclosed After Original Motion ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Related document(s) 566 ) (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
568 RESPONSE (re 562 MOTION to Amend/Correct 551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed to Add Witnesses Disclosed After Original Motion MOTION to Amend/Correct 551 MOTION in Limine Re: Witnesses Who Were Not Timely or Properly Disclosed to Add Witnesses Disclosed After Original Motion ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
569 Declaration of Steven Elmer in Support of 568 Opposition/Response to Motion, Plaintiffs' Motion in Limine re Witnesses Who Were Not Timely or Properly Disclosed ﬁled byTaco Bell Corp.. (Related document(s) 568 ) (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
570 Declaration of Richard H. Hikida in Support of 568 Opposition/Response to Motion, in Opposition to Plaintiffs' Motion in Limine re Witnesses Who Were Not Timely or Properly Disclosed ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Supplement, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit) (Related document(s) 568 ) (Hurley, Gregory) (Filed on 4/21/2011) (Entered: 04/21/2011)
571 MOTION to Amend/Correct Witness List and Deposition Designations or to Present Testimony by Contemporaneous Transmission ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Afﬁdavit Declaration of Curtis Cone, # 2 Afﬁdavit Declaration of Amy F. Robertson, # 3 Proposed Order)(Robertson, Amy) (Filed on 4/27/2011) (Entered: 04/27/2011)
572 MOTION to Shorten Time to Respond to and Hear Motion to Amend Witness List and Deposition Designations or to Present Testimony by Contemporaneous Transmission ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 5/5/2011 02:00 PM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 4/27/2011) (Entered: 04/27/2011)
***Deadlines terminated. (nah, COURT STAFF) (Filed on 5/2/2011) (Entered: 05/02/2011)
573 CLERKS NOTICE CONTINUING PRETRIAL CONFERENCE. (nah, COURT STAFF) (Filed on 5/2/2011) (Entered: 05/02/2011)
574 RESPONSE (re 571 MOTION to Amend/Correct Witness List and Deposition Designations or to Present Testimony by Contemporaneous Transmission ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 5/3/2011) (Entered: 05/03/2011)
575 Declaration of Richard H. Hikida In Support of 574 Taco Bell Corp.'s Response in

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CAND-ECF
Opposition to Plaintiffs' Motion to Amend Witness List and Deposition Designations or to Present Testimony by Contemporaneous Transmission ﬁled by Taco Bell Corp.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Hurley, Gregory) (Filed on 5/3/2011) Modiﬁed on 5/4/2011 (vlk, COURT STAFF). (Entered: 05/03/2011)
576 NOTICE by Taco Bell Corp. OF USING EQUIPMENT AND DEMONSTRATIVE DEVICES AT TRIAL (Attachments: # 1 Proposed Order)(Hurley, Gregory) (Filed on 5/4/2011) (Entered: 05/04/2011)
577 ORDER GRANTING DEFENDANT'S NOTICE OF USING EQUIPMENT AND DEMONSTRATIVE DEVICES AT TRIAL re 576 Notice (Other) ﬁled by Taco Bell Corp. Signed by Judge Phyllis J. Hamilton on 5/10/11. (nah, COURT STAFF) (Filed on 5/10/2011) (Entered: 05/10/2011)
578 TRIAL RULES AND PROCEDURES. Signed by Judge Phyllis J. Hamilton on 5/10/11. (nah, COURT STAFF) (Filed on 5/10/2011) (Entered: 05/10/2011)
579 Minute Entry: Final Pretrial Conference held before the Honorable Phyllis J. Hamilton (Date Filed: 5/12/2011). (Court Reporter Raynee Mercado.) (nah, COURT STAFF) (Date Filed: 5/12/2011) (Entered: 05/13/2011)
580 FINAL PRETRIAL ORDER. Signed by Judge Hamilton on 5/16/2011. (pjhlc1, COURT STAFF) (Filed on 5/16/2011) (Entered: 05/16/2011)
581 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates of Using Equipment and Demonstrative Devices at Trial (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 5/17/2011) (Entered: 05/17/2011)
582 ORDER GRANTING REQUEST TO USE EQUIPMENT AND DEMONSTRATIVE DEVICES AT TRIAL re 581 Notice (Other) ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Phyllis J. Hamilton on 5/23/11. (nah, COURT STAFF) (Filed on 5/23/2011) (Entered: 05/23/2011)
583 NOTICE of Appearance by Michael Chilleen (Chilleen, Michael) (Filed on 6/1/2011) (Entered: 06/01/2011)
584 Minute Entry: Bench Trial (day 1) held on 6/6/2011 before Phyllis J. Hamilton (Date Filed: 6/6/2011). Bench Trial (day 2) set for 6/7/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/6/2011) (Entered: 06/06/2011)
585 Minute Entry: Bench Trial (day 2) held on 6/7/2011 before Phyllis J. Hamilton (Date Filed: 6/7/2011). Bench Trial (day 3) set for 6/9/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/7/2011) (Entered: 06/07/2011)
586 Minute Entry: Bench Trial (day 3) held on 6/9/2011 before Phyllis J. Hamilton (Date Filed: 6/9/2011). Bench Trial (day 4) set for 6/10/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/9/2011) (Entered: 06/09/2011)
589 Minute Entry: Bench Trial (day 4) held on 6/10/2011 before Phyllis J. Hamilton (Date Filed: 6/10/2011). Bench Trial (day 5) set for 6/13/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/10/2011) (Entered: 06/13/2011)
587 NOTICE of Appearance by Richard Hidehito Hikida, Esq John A. Makarewich (Hikida, Richard) (Filed on 6/12/2011) (Entered: 06/12/2011)

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06/12/2011 06/13/2011
06/14/2011
06/16/2011 06/16/2011 06/16/2011 06/16/2011 06/16/2011 06/16/2011 06/17/2011 06/17/2011
06/22/2011
06/27/2011 06/28/2011

CAND-ECF
588 NOTICE of Appearance by Richard Hidehito Hikida, Esq Richard L. Deleissegues (Hikida, Richard) (Filed on 6/12/2011) (Entered: 06/12/2011)
590 Minute Entry: Bench Trial (day 5) held on 6/13/2011 before Phyllis J. Hamilton (Date Filed: 6/13/2011). Bench Trial (day 6) set for 6/14/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/13/2011) (Entered: 06/13/2011)
591 Minute Entry: Bench Trial (day 6) held on 6/14/2011 before Phyllis J. Hamilton (Date Filed: 6/14/2011). Bench Trial (day 7) set for 6/16/2011 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/14/2011) (Entered: 06/14/2011)
592 OBJECTIONS to Plaintiffs' Designation of Deposition Excerpts for Jeffrie Kuan-Bone and Doug Henry by Taco Bell Corp.. (Hurley, Gregory) (Filed on 6/16/2011) (Entered: 06/16/2011)
593 Minute Entry: Bench Trial (day 7) completed on 6/16/2011 before Phyllis J. Hamilton (Date Filed: 6/16/2011). (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 6/16/2011) (Entered: 06/16/2011)
594 ORDER REFERRING CASE to Magistrate Judge Spero for Settlement. Signed by Judge Phyllis J. Hamilton on 6/16/11. (nah, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/16/2011)
595 Trial Log (Exhibit and Witness List). (nah, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/16/2011)
Exhibit Location: 1 plaintiff binder, 1 defendant binder located on shelf C-3. One box labeled A-86 submitted by defendant located on ﬂoor to the right of exhibit bins. (vlk, COURT STAFF) (Filed on 6/16/2011) (Entered: 07/12/2011)
Set Deadlines/Hearings: Bench Trial (Tentative) set for 12/12/2011 08:30 AM before Hon. Phyllis J. Hamilton. (nah, COURT STAFF) (Filed on 6/16/2011) (Entered: 09/07/2011)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Settlement. (lmh, COURT STAFF) (Filed on 6/17/2011) (Entered: 06/17/2011)
596 Notice of Settlement Conference and Order Setting Settlement Conference before Magistrate Judge Joseph C. Spero. Settlement Conference set for 7/6/2011 09:30 AM in Courtroom G, 15th Floor, San Francisco. Conﬁdential statements due 6/29/11. Signed by Judge Joseph C. Spero on 6/17/2011. (klhS, COURT STAFF) (Filed on 6/17/2011) (Entered: 06/17/2011)
597 RESPONSE to re 592 Objection to Plaintiffs' Designation of Deposition Excerpts for Jeffrie Kuan-Bone and Doug Henry by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Plaintiffs' Amended Deposition Designations for Jeffrie Kuan-Bone, # 2 Plaintiffs' Amended Deposition Designations for Doug Henry)(Fox, Timothy) (Filed on 6/22/2011) (Entered: 06/22/2011)
598 Letter from Timothy P. Fox regarding Settlement Conference. (Fox, Timothy) (Filed on 6/27/2011) (Entered: 06/27/2011)
599 ORDER GRANTING re 598 Letter ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates for Ed Muegge to particpate by phone at the 7/6/11 Settlement Conference. Signed by Judge Joseph C. Spero on 6/28/11. (klhS, COURT STAFF) (Filed on 6/28/2011) (Entered: 06/28/2011)

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07/01/2011 07/01/2011
07/06/2011 07/07/2011 07/08/2011 07/11/2011 07/13/2011 07/13/2011 07/14/2011 07/14/2011 07/25/2011 08/03/2011
08/04/2011
08/05/2011 08/05/2011

CAND-ECF
600 Proposed Findings of Fact by Taco Bell Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Hurley, Gregory) (Filed on 7/1/2011) (Entered: 07/01/2011)
601 Proposed Findings of Fact by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Appendix A: Plaintiffs' Chart of Applicable Standards, # 2 Appendix B: Excerpts from Title 24 (1989), # 3 Appendix C: Excerpts from Title 24 (2002))(Robertson, Amy) (Filed on 7/1/2011) (Entered: 07/01/2011)
602 Minute Entry: Settlement Conference held on 7/6/2011. Case did not settle. (Court Reporter Not Reported.) (klhS, COURT STAFF) (Date Filed: 7/6/2011) (Entered: 07/06/2011)
603 Letter from Brad Seligman re Supreme Court Decision. (Seligman, Brad) (Filed on 7/7/2011) Modiﬁed on 7/8/2011 (vlk, COURT STAFF). (Entered: 07/07/2011)
604 Letter from Gregory F. Hurley. (Hurley, Gregory) (Filed on 7/8/2011) (Entered: 07/08/2011)
605 CLERKS NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 7/13/2011. Case Management Conference set for 7/14/2011 02:00 PM. (nah, COURT STAFF) (Filed on 7/11/2011) (Entered: 07/11/2011)
606 CASE MANAGEMENT STATEMENT ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 7/13/2011) (Entered: 07/13/2011)
607 CASE MANAGEMENT STATEMENT ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 US v. City of New York)(Fox, Timothy) (Filed on 7/13/2011) (Entered: 07/13/2011)
608 EXHIBITS re 606 Case Management Statement Cruz v. Dollar Tree Opinion of Judge Conti ﬁled byTaco Bell Corp.. (Related document(s) 606 ) (Hurley, Gregory) (Filed on 7/14/2011) (Entered: 07/14/2011)
609 Minute Entry: Further Case Management Conference held on 7/14/2011 before Phyllis J. Hamilton (Date Filed: 7/14/2011). (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 7/14/2011) (Entered: 07/15/2011)
610 NOTICE of Unavailability by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates (Fox, Timothy) (Filed on 7/25/2011) Modiﬁed on 7/26/2011 (vlk, COURT STAFF). (Entered: 07/25/2011)
611 MOTION Decertiﬁcation of Class ﬁled by Taco Bell Corp.. Motion Hearing set for 9/7/2011 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 8/17/2011. Replies due by 8/24/2011. (Attachments: # 1 Declaration of Richard H. Hikida in Support of Taco Bell Corp.'s Motion for Decertiﬁcation)(Hurley, Gregory) (Filed on 8/3/2011) (Entered: 08/03/2011)
612 MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Enlargement of Time to Respond to Defendant's Motion for Decertiﬁcation ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Declaration of Brad Seligman, # 3 Proposed Order)(Fox, Timothy) (Filed on 8/4/2011) (Entered: 08/04/2011)
613 ORDER by Judge Hamilton granting 612 Motion for Extension of Time to File Response/Reply; vacating date for hearing on 611 Motion for Decertiﬁcation (pjhlc1, COURT STAFF) (Filed on 8/5/2011) (Entered: 08/05/2011)
***Hearing terminated re 611 MOTION Decertiﬁcation of Class ﬁled by Taco Bell Corp.. (vlk, COURT STAFF) (Filed on 8/5/2011) (Entered: 08/08/2011)

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08/19/2011
08/31/2011 09/02/2011 09/07/2011 09/08/2011 09/08/2011 09/08/2011 09/09/2011 09/16/2011 09/16/2011 09/20/2011 09/21/2011 09/21/2011

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614 Notice of Supplemental Case Authority in Support of (1) Taco Bell Corp.'s [Proposed] Findings of Fact and Conclusions of Law and (2) Motion for Decertiﬁcation by Taco Bell Corp. re 611 MOTION Decertiﬁcation of Class, 600 Proposed Findings of Fact (Hurley, Gregory) (Filed on 8/19/2011) Modiﬁed on 8/22/2011 (vlk, COURT STAFF). (Entered: 08/19/2011)
615 RESPONSE to re 614 Taco Bell Corp.'s Supplemental Case Authority by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 8/31/2011) Modiﬁed on 9/1/2011 (vlk, COURT STAFF). (Entered: 08/31/2011)
616 MOTION to Quash ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Responses due by 9/16/2011. Replies due by 9/23/2011. (Attachments: # 1 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 9/2/2011) (Entered: 09/02/2011)
617 MOTION to Continue Plaintiffs' Motion for Continuance of December 12, 2011 Trial Date and Stay of Discovery ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 9/7/2011) (Entered: 09/07/2011)
618 ORDER Shortening Time for Opposition re 616 Motion to Quash. Signed by Judge Nathanael M. Cousins on 9/8/11. (nclc1, COURT STAFF) (Filed on 9/8/2011) (Entered: 09/08/2011)
619 RESPONSE (re 616 MOTION to Quash ) Taco Bell Corporation's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Quash ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 9/8/2011) (Entered: 09/08/2011)
620 DECLARATION of Stacey A. Sautter in Support of 619 Taco Bell Corporation's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Quash ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 9/8/2011) Modiﬁed on 9/9/2011 (vlk, COURT STAFF). (Entered: 09/08/2011)
621 REPLY (re 616 MOTION to Quash ) Reply Memorandum in Support of Plaintiffs' Motion to Quash ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/9/2011) (Entered: 09/09/2011)
622 RESPONSE (re 617 MOTION to Continue Plaintiffs' Motion for Continuance of December 12, 2011 Trial Date and Stay of Discovery ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 9/16/2011) (Entered: 09/16/2011)
623 REPLY (re 616 MOTION to Quash ) Urgent Supplemental Submission in Support of Plaintiffs' Motion to Quash ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson) (Robertson, Amy) (Filed on 9/16/2011) (Entered: 09/16/2011)
624 REPLY (re 617 MOTION to Continue Plaintiffs' Motion for Continuance of December 12, 2011 Trial Date and Stay of Discovery ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 9/20/2011) (Entered: 09/20/2011)
625 ORDER by Judge Hamilton granting in part and denying in part 617 Motion to Continue and Motion for Stay of Discovery (pjhlc1, COURT STAFF) (Filed on 9/21/2011) (Entered: 09/21/2011)
***12/12/11 trial date terminated. (vlk, COURT STAFF) (Filed on 9/21/2011) (Entered: 09/22/2011)

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626 Statement of Issues re Motion to Quash 10/07/11 Deposition Notices and Subpoenas ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 9/28/2011) Modiﬁed on 9/30/2011 (jlm, COURT STAFF). Modiﬁed on 9/30/2011 (jlm, COURT STAFF). (Entered: 09/28/2011)
627 MOTION for Sanctions ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 11/2/2011 09:00 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Nathanael M. Cousins. Responses due by 10/12/2011. Replies due by 10/19/2011. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 9/28/2011) (Entered: 09/28/2011)
628 Declaration of Amy F. Robertson in Support of 627 MOTION for Sanctions ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit 1-39, # 2 Exhibit 40-50)(Related document(s) 627 ) (Robertson, Amy) (Filed on 9/28/2011) (Entered: 09/28/2011)
629 Order taking under advisement 627 Motion for Sanctions entered by Magistrate Judge Nathanael M. Cousins. The Court will hold a telephonic discovery conference in this case today at 2:00 p.m. Lead counsel are to contact Courtroom Deputy Lili Harrell (415.522.2039) to conﬁrm their participation. At the conference, plaintiffs' counsel will be prepared to disclose their availability for depositions for each day from tomorrow until the end of 2011. Defendants' counsel will be prepared to disclose the witnesses they intend to depose in this case and the dates and locations they propose for the depositions. Defendants' counsel will show cause why they and their client should not be sanctioned for failure to abide by Order Shortening Time, docket entry 618, in this case. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 09/29/2011)
630 Statement re Motion to Quash 10/07/11 Deposition Notices and Subpoenas, ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 9/29/2011) Modiﬁed on 9/30/2011 (jlm, COURT STAFF). (Entered: 09/29/2011)
631 Minute Entry: Telephonic Discovery Hearing held on 9/29/2011 before Nathanael Cousins. Plaintiffs' Motion to Quash is GRANTED 616 . Parties shall meet and confer and submit joint statement, or separate statements, by 5pm on 10/3/2011. (FTR: 2:04pm2:44pm.) (lmh, COURT STAFF) (Date Filed: 9/29/2011) (Entered: 09/30/2011)
632 Transcript of Proceedings of the Ofﬁcial Electronic Sound Recording held on September 29, 2011, before Magistrate Judge Nathanael Cousins. Transcriber Stacy Wegner, email address: smwtyping@yahoo.com; telephone number (859) 539-2802. 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 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 1/3/2012. (djc, COURT STAFF) (Filed on 10/3/2011) (Entered: 10/03/2011)
633 RESPONSE to re 631 Discovery Hearing 627 MOTION for Sanctions (1) OSC Re Sanctions; and (2) Plaintiff's Motion for Sanctions by Taco Bell Corp.. (Attachments: # 1 Appendix of Evidence in Support of Joint Statement re Joint Status Report and Taco Bell Corp.'s Response to OSC Re Sanctions and Plaintiffs' Motion for Sanctions)(Hurley, Gregory) (Filed on 10/3/2011) Modiﬁed on 10/4/2011 (vlk, COURT STAFF). (Entered: 10/03/2011)
634 Joint Statement Concerning Depositions by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp. . (Fox, Timothy) (Filed on 10/3/2011) Modiﬁed on 10/4/2011 (vlk, COURT STAFF). (Entered: 10/03/2011)

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10/04/2011 10/04/2011 10/04/2011 10/04/2011 10/04/2011 10/05/2011
10/05/2011 10/17/2011 10/17/2011 10/17/2011 10/19/2011

CAND-ECF
635 Appendix re 633 Response Appendix of Evidence in Support of (1) Taco Bell Corp.'s Portion of Joint Statement Re: Joint Status Report; and (2) Taco Bell Corp.'s Response to OSC Re Sanctions and Plaintiff's Motion for Sanctions ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit)(Related document(s) 633 ) (Hurley, Gregory) (Filed on 10/3/2011) Modiﬁed on 10/4/2011 (vlk, COURT STAFF). (Entered: 10/03/2011)
636 MOTION for Leave to File Three-Page Reply Brief in Support of Motion for Sanctions ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Plaintiffs' Reply Brief in Support of Motion for Sanctions, # 2 Proposed Order)(Robertson, Amy) (Filed on 10/4/2011) (Entered: 10/04/2011)
637 ERRATA re 634 Statement by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Corrected Joint Statement Concerning Depositions)(Robertson, Amy) (Filed on 10/4/2011) (Entered: 10/04/2011)
638 ORDER Granting Motion for Leave to File Reply Brief 636 . Signed by Judge Nathanael M. Cousins. (nclc1, COURT STAFF) (Filed on 10/4/2011) (Entered: 10/04/2011)
639 MOTION for Leave to File Sur-Reply ﬁled by Taco Bell Corp.. (Attachments: # 1 Proposed Order, # 2 Supplement sur-reply)(Hurley, Gregory) (Filed on 10/4/2011) (Entered: 10/04/2011)
640 Order DENYING 639 Motion for Leave to File entered by Magistrate Judge Nathanael M. Cousins, due to lack of good cause for additional brieﬁng. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 10/05/2011)
641 Order GRANTING in part 627 Plaintiffs' Motion for Sanctions, entered by Magistrate Judge Nathanael M. Cousins. As to the request in this Motion and in docket entry 626 that the Court quash the depositions noticed by Taco Bell for October 7, 2011, the Motion is granted, given that Plaintiffs' counsel is not available to defend the depositions on that date. The parties are ordered to meet and confer concerning the depositions noticed for October 7, and to agree on alternate dates and locations for the depositions. The October 7 depositions are to be rescheduled for date(s) on or before November 10, 2011. If the parties are unable to agree upon rescheduled dates and locations for the depositions, they shall notify the Court in a joint status report, not to exceed two pages in length, by October 14, 2011. The Court reserves ruling on the remaining issues asserted in Plaintiffs' Motion for Sanctions. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 10/05/2011)
642 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Hamilton on 10/5/2011. (pjhlc1, COURT STAFF) (Filed on 10/5/2011) (Entered: 10/05/2011)
643 Statement of Issues re: Motion to Quash Subpoena for Deposition of Darlene York by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 10/17/2011) (Entered: 10/17/2011)
644 RESPONSE to Taco Bell Statement re Plaintiffs' Motion to Quash Subpoena for Deposition of Darlene York by Taco Bell Corp.. (Hurley, Gregory) (Filed on 10/17/2011) (Entered: 10/17/2011)
645 ORDER re: Deposition of Darlene York 643 644 . Signed by Judge Nathanael M. Cousins on 10/17/11. (nclc1, COURT STAFF) (Filed on 10/17/2011) (Entered: 10/17/2011)
646 MOTION to Certify Class Plaintiffs' Notice of Motion And Motion to Alter and Amend the Class Certiﬁcation Order ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Responses due by 11/2/2011. Replies due by 11/9/2011.

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(Attachments: # 1 Plaintiffs' Memorandum in Support of Motion to Alter and Amend the Class Certiﬁcation Order and in Response to Defendants Motion for Decertiﬁcation, # 2 Declaration of Amy F. Robertson, # 3 Proposed Order)(Fox, Timothy) (Filed on 10/19/2011) (Entered: 10/19/2011)

11/09/2011

647 ORDER Modifying Discovery Procedures 634 and Denying Motion for Sanctions 627 . Signed by Judge Nathanael M. Cousins on 11/9/11. (nclc1, COURT STAFF) (Filed on 11/9/2011) (Entered: 11/09/2011)

11/16/2011

648 MOTION Brieﬁng Schedule Plaintiffs' Administrative Motion for Brieﬁng Schedule ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Responses due by 11/22/2011. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Proposed Order)(Fox, Timothy) (Filed on 11/16/2011) (Entered: 11/16/2011)

11/18/2011

649 Witness List by Craig Thomas Yates, Katherine Corbett, Edward Muegge, Francie E. Moeller. (Attachments: # 1 Witness List)(Fox, Timothy) (Filed on 11/18/2011) (Entered: 11/18/2011)

11/21/2011

650 RESPONSE (re 648 MOTION Brieﬁng Schedule Plaintiffs' Administrative Motion for Brieﬁng Schedule ) ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Roger Scott in Support of Taco Bell Corp.'s Opposition to Plaintiffs' Administrative Motion for Brieﬁng Schedule)(Hurley, Gregory) (Filed on 11/21/2011) (Entered: 11/21/2011)

11/22/2011

651 REPLY (re 648 MOTION Brieﬁng Schedule Plaintiffs' Administrative Motion for Brieﬁng Schedule ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 11/22/2011) (Entered: 11/22/2011)

11/25/2011

652 RESPONSE to re 647 Order Providing Its List of Perons it Intends to Depose by Taco Bell Corp.. (Hurley, Gregory) (Filed on 11/25/2011) (Entered: 11/25/2011)

11/28/2011

653 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates re 648 MOTION Brieﬁng Schedule Plaintiffs' Administrative Motion for Brieﬁng Schedule - Plaintiffs' Supplemental Brief (Fox, Timothy) (Filed on 11/28/2011) (Entered: 11/28/2011)

11/28/2011

654 ORDER re 648 MOTION Brieﬁng Schedule Plaintiffs' Administrative Motion for Brieﬁng Schedule ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Hamilton on 11/28/2011. (pjhlc1, COURT STAFF) (Filed on 11/28/2011) (Entered: 11/28/2011)

11/29/2011

655 Plaintiffs' Request for Case Management Conference ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 11/29/2011) Modiﬁed on 11/30/2011 (vlk, COURT STAFF). (Entered: 11/29/2011)

11/30/2011

656 ORDER SETTING DISCOVERY STATUS CONFERENCE Re: 654 . Signed by Judge Nathanael M. Cousins on 11/30/11. (nclc1, COURT STAFF) (Filed on 11/30/2011) (Entered: 11/30/2011)

12/05/2011

657 JOINT CASE MANAGEMENT STATEMENT ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp.. (Fox, Timothy) (Filed on 12/5/2011) Modiﬁed on 12/6/2011 (vlk, COURT STAFF). (Entered: 12/05/2011)

12/07/2011

658 Minute Entry: Discovery Hearing held on 12/7/2011 before Nathanael Cousins. Court to issue order. Telephonic status conference re discovery set for 1/11/2012 02:00 PM. (Court Reporter Joan Columbini) (lmh, COURT STAFF) (Date Filed: 12/7/2011) (Entered: 12/07/2011)

12/07/2011

659 ORDER Re: Discovery Status Conference 656 . Signed by Judge Nathanael M. Cousins on 12/7/11. (nclc1, COURT STAFF) (Filed on 12/7/2011) (Entered: 12/07/2011)

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660 Transcript of Proceedings held on December 7, 2011, before Judge Nathanael Cousins. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415-255-6842. 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 1/19/2012. Redacted Transcript Deadline set for 1/30/2012. Release of Transcript Restriction set for 3/28/2012. (Columbini, Joan) (Filed on 12/29/2011) (Entered: 12/29/2011)

01/09/2012

661 STATUS REPORT Concerning Deposition Scheduling by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 1/9/2012) (Entered: 01/09/2012)

01/10/2012

662 Joint Statement Concerning Plaintiffs' Request for One Additional Interrogatory And One Request for Production by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp.. (Fox, Timothy) (Filed on 1/10/2012) Modiﬁed on 1/11/2012 (vlk, COURT STAFF). (Entered: 01/10/2012)

01/11/2012

663 Minute Entry: Telephonic Discovery Hearing held on 1/11/2012 before Nathanael Cousins. Plaintiffs shall ﬁle a status report on the scheduling of depositions and any other disputed issues by 1/18/2012. (Court Reporter Jim Yeomans) (lmh, COURT STAFF) (Date Filed: 1/11/2012) (Entered: 01/11/2012)

01/18/2012

664 STATUS REPORT Concerning Deposition Scheduling by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 1/18/2012) (Entered: 01/18/2012)

01/19/2012

665 SUPPLEMENTAL ORDER RE: CLASS DEPOSITIONS 659 664 . Signed by Judge Nathanael M. Cousins on 1/19/12. (nclc1, COURT STAFF) (Filed on 1/19/2012) (Entered: 01/19/2012)

01/27/2012

666 STATUS REPORT Concerning Deposition Scheduling by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 1/27/2012) (Entered: 01/27/2012)

02/02/2012

667 Transcript of Proceedings held on 01/11/12, before Judge Nathanael M. Cousins. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863-5179. 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 5/2/2012. (jjy, COURT STAFF) (Filed on 2/2/2012) (Entered: 02/02/2012)

03/05/2012

668 STIPULATION WITH PROPOSED ORDER RE: EXTENSION OF PAGE LIMIT ON DEFENDANTS REPLY BRIEF RE: DECERTIFICATION OF CLASS ﬁled by Taco Bell Corp.. (Attachments: # 1 Proposed Order)(Hurley, Gregory) (Filed on 3/5/2012) (Entered: 03/05/2012)

03/08/2012

669 MOTION for Leave to File Excess Pages on Reply Brief Re: Motion to Decertify Class ﬁled by Taco Bell Corp.. (Attachments: # 1 Proposed Order)(Hurley, Gregory) (Filed on 3/8/2012) (Entered: 03/08/2012)

03/12/2012 670 AMENDED DOCUMENT Amendment to 669 MOTION for Leave to File Excess Pages on Reply Brief Re: Motion to Decertify Class by Taco Bell Corp.. (Attachments: # 1

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03/16/2012
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03/23/2012 04/06/2012
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08/31/2012 08/31/2012 08/31/2012

CAND-ECF
Proposed Order)(Hurley, Gregory) (Filed on 3/12/2012) Modiﬁed on 3/13/2012 (vlk, COURT STAFF). (Entered: 03/12/2012)
671 Proposed Order re 669 MOTION for Leave to File Excess Pages on Reply Brief Re: Motion to Decertify Class, 670 Amended Document by Taco Bell Corp.. (Hurley, Gregory) (Filed on 3/12/2012) (Entered: 03/12/2012)
672 ORDER GRANTING REQUEST TO EXTEND PAGE LIMITS ON REPLY BRIEF TO 25 PAGES by Judge Phyllis J. Hamilton terminating 668 Stipulation; granting 669 Motion for Leave to File Excess Pages (nah, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)
673 RESPONSE (re 646 MOTION to Certify Class Plaintiffs' Notice of Motion And Motion to Alter and Amend the Class Certiﬁcation Order ) ﬁled byTaco Bell Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Hurley, Gregory) (Filed on 3/16/2012) (Entered: 03/16/2012)
674 REPLY (re 611 MOTION Decertiﬁcation of Class ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 3/16/2012) (Entered: 03/16/2012)
675 NOTICE of Appearance by Gregory F. Hurley for Roger L. Scott (Hurley, Gregory) (Filed on 3/16/2012) (Entered: 03/16/2012)
676 Declaration of Roger L. Scott in Support of 673 Opposition/Response to Motion, ﬁled byTaco Bell Corp.. (Related document(s) 673 ) (Hurley, Gregory) (Filed on 3/18/2012) (Entered: 03/18/2012)
677 MOTION for Leave to File Excess Pages Unopposed Motion to Extend Length of Reply Brief ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 3/21/2012) (Entered: 03/21/2012)
678 Order by Hon. Phyllis J. Hamilton granting 677 Motion for Leave to File Excess Pages. (nah, COURT STAFF) (Filed on 3/23/2012) (Entered: 03/23/2012)
679 REPLY (re 646 MOTION to Certify Class Plaintiffs' Notice of Motion And Motion to Alter and Amend the Class Certiﬁcation Order ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 4/6/2012) (Entered: 04/06/2012)
680 ORDER by Judge Hamilton granting in part and denying in part 611 Motion to Decertify Class; denying 646 Motion to Amend/Alter Certiﬁcation (pjhlc1, COURT STAFF) (Filed on 7/26/2012) (Entered: 07/26/2012)
681 First MOTION for Leave to File Motion to Reconsider Imposition of Class-Wide Injunctive Relief ﬁled by Taco Bell Corp.. (Attachments: # 1 Exhibit 1 Proposed Notice of Motion to Reconsider, # 2 Exhibit 2 Declaration of Matthew Shaw)(Hurley, Gregory) (Filed on 8/29/2012) (Entered: 08/29/2012)
682 Status Statement Concerning Named Plaintiffs' Damages Trial by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 8/31/2012) Modiﬁed on 9/4/2012 (vlk, COURT STAFF). (Entered: 08/31/2012)
683 ORDER by Judge Hamilton denying 681 Motion for Leave to File Motion for Reconsideration (pjhlc1, COURT STAFF) (Filed on 8/31/2012) (Entered: 08/31/2012)
684 Proposed Order Proposed Permanent Injunction by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 8/31/2012) (Entered: 08/31/2012)

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08/31/2012 09/05/2012
09/11/2012 09/12/2012 09/13/2012 09/17/2012 09/17/2012 09/20/2012 09/25/2012
09/25/2012 09/28/2012 10/03/2012 10/24/2012 10/24/2012

CAND-ECF
685 Statement Regarding Individual Named Plaintiff Damages Trials by Taco Bell Corp.. (Attachments: # 1 Exhibit 1)(Hurley, Gregory) (Filed on 8/31/2012) (Entered: 08/31/2012)
686 CLERKS NOTICE. YOU ARE HEREBY NOTIFIED that on September 13, 2012 at 2:00 p.m., the HONORABLE PHYLLIS J. HAMILTON will conduct a case management conference, in this matter. No case management statement needs to be ﬁled. Case Management Conference set for 9/13/2012 02:00 PM. (THIS IS A TEXT ONLY DOCKET ENTRY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE) (nah, COURT STAFF) (Filed on 9/5/2012) (Entered: 09/05/2012)
687 OBJECTIONS to re 684 Proposed Order by Taco Bell Corp.. (Hurley, Gregory) (Filed on 9/11/2012) (Entered: 09/11/2012)
688 CASE MANAGEMENT STATEMENT ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 9/12/2012) (Entered: 09/12/2012)
689 Minute Entry: Case Mangement Conference Hearing held on 9/13/2012 before Judge Hamilton. (Court Reporter Diane Skillman) (pjhlc1, COURT STAFF) (Filed on 9/17/2012) Modiﬁed on 9/18/2012 (vlk, COURT STAFF). (Entered: 09/17/2012)
690 ORDER MODIFYING CASE MANAGEMENT PLAN. Signed by Judge Hamilton on 9/17/2012. (pjhlc1, COURT STAFF) (Filed on 9/17/2012) (Entered: 09/17/2012)
691 ORDER re 642 Findings of Fact & Conclusions of Law. Signed by Judge Hamilton on 9/17/2012. (pjhlc1, COURT STAFF) (Filed on 9/17/2012) (Entered: 09/17/2012)
692 Witness List by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates . (Robertson, Amy) (Filed on 9/20/2012) (Entered: 09/20/2012)
693 NOTICE OF APPEAL to the 9th CCA Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Appeal fee PAID.) Appeal Fee paid, tracking ID 09717149235 (Attachments: # 1 Representation Statement)(Fox, Timothy) (Filed on 9/25/2012) Modiﬁed on 9/25/2012 (vlk, COURT STAFF). (Entered: 09/25/2012)
694 USCA Case Number 12-17144 Ninth Circuit Court of Appeals for 693 Notice of Appeal, ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (kk, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)
695 Witness List by Taco Bell Corp. . (Hurley, Gregory) (Filed on 9/28/2012) (Entered: 09/28/2012)
696 NOTICE of Change In Counsel by Richard Hidehito Hikida, Esq (Hikida, Richard) (Filed on 10/3/2012) (Entered: 10/03/2012)
697 Transcript Designation and Ordering Form (Robertson, Amy) (Filed on 10/24/2012) (Entered: 10/24/2012)
698 Transcript of Proceedings held on June 6, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

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699 Transcript of Proceedings held on June 7, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

10/24/2012

700 Transcript of Proceedings held on June 9, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

10/24/2012

701 Transcript of Proceedings held on June 10, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

10/24/2012

702 Transcript of Proceedings held on June 13, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

10/24/2012

703 Transcript of Proceedings held on June 14, 2011, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)

10/24/2012 704 Transcript of Proceedings held on June 16, 2011, before Judge Phyllis J. Hamilton. Court

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CAND-ECF
Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)
705 Transcript of Proceedings held on December 16, 2009, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)
706 Transcript of Proceedings held on September 13, 2012, before Judge Phyllis J. Hamilton. Court Reporter Diane E. Skillman, Telephone number 510-451-2930 Diane_Skillman@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 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 11/14/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013. (Skillman, Diane) (Filed on 10/24/2012) (Entered: 10/24/2012)
707 MOTION to Withdraw as Attorney for Plaintiffs ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Responses due by 1/18/2013. Replies due by 1/25/2013. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 1/4/2013) (Entered: 01/04/2013)
708 Order by Hon. Phyllis J. Hamilton granting 707 Motion to Withdraw as Attorney. Attorney Brad Seligman terminated.(nah, COURT STAFF) (Filed on 1/8/2013) (Entered: 01/08/2013)
709 Plaintiffs' Statement Concerning (1) Plaintiffs' Motion for a Protective Order Barring Certain Depositions; and (2) Plaintiffs' Motion to Compel Production of Information Relating to Mootness ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 1/22/2013) Modiﬁed on 1/23/2013 (vlk, COURT STAFF). (Entered: 01/22/2013)
710 ORDER re 709 Discovery Letter Brief. Signed by Judge Nathanael M. Cousins on 01/22/2013. (nclc1, COURT STAFF) (Filed on 1/22/2013) (Entered: 01/22/2013)
711 Statement of Interested Parties in Support of [] Motion for Protective Order, ﬁled by Marie Hill. (Campins, Julia) (Filed on 1/23/2013) Modiﬁed on 1/24/2013 (jlm, COURT STAFF). (Entered: 01/23/2013)
712 Supplemental Statement Concerning (1) Plaintiffs' Motion for a Protective Order Barring Certain Depositions; and (2) Plaintiffs' Motion to Compel Production of Information Relating to Mootness, ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge,

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03/04/2013 03/05/2013

CAND-ECF
Craig Thomas Yates. (Fox, Timothy) (Filed on 1/23/2013) Modiﬁed on 1/24/2013 (jlm, COURT STAFF). (Entered: 01/23/2013)
713 Joint Statement Concerning (1) Plaintiffs' Motion for a Protective Order Barring Certain Depositions; and (2) Plaintiffs' Motion to Compel Production of Information Relating to Mootness ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 1/24/2013) Modiﬁed on 1/25/2013 (vlk, COURT STAFF). (Entered: 01/24/2013)
714 Plaintiffs' Request for Leave to Respond to Defendant's Statement Concerning (1) Plaintiffs' Motion for a Protective Order Barring Certain Depositions; and (2) Plaintiffs' Motion to Compel Production of Information Relating to Mootness ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 1/25/2013) Modiﬁed on 1/28/2013 (vlk, COURT STAFF). (Entered: 01/25/2013)
715 ORDER re: Discovery Letter Briefs 709 , 711 , 712 , 713 , and 714 . Discovery Hearing set for 2/6/2013 01:00 PM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Nathanael M. Cousins.. Signed by Judge Nathanael M. Cousins on 1/29/2013. (nclc1, COURT STAFF) (Filed on 1/29/2013) (Entered: 01/29/2013)
716 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates Plaintiffs' Submission of Named Plaintiff Testimony from 2003 Depositions (Fox, Timothy) (Filed on 1/30/2013) (Entered: 01/30/2013)
717 Discovery Letter Brief Plaintiffs' Statement Concerning Additional Discovery Disputes ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 2/5/2013) Modiﬁed on 2/6/2013 (vlk, COURT STAFF). (Entered: 02/05/2013)
718 STIPULATION WITH PROPOSED ORDER ﬁled by Taco Bell Corp.. (Attachments: # 1 Proposed Order Granting Stipulation re Modiﬁcation of Cut-Off Dates)(Hurley, Gregory) (Filed on 2/5/2013) (Entered: 02/05/2013)
719 ORDER re Discovery Hearing and 717 Discovery Letter BriefPlaintiffs' Statement Concerning Additional Discovery Disputes ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates.. Signed by Judge Nathanael M. Cousins on 02/07/2013. (nclc1, COURT STAFF) (Filed on 2/7/2013) (Entered: 02/07/2013)
720 Minute Entry: Discovery Hearing re Dkt. 717 held on 2/6/2013 before Nathanael Cousins. (Court Reporter Belle Ball) (lmh, COURT STAFF) (Date Filed: 2/8/2013) (Entered: 02/08/2013)
721 Transcript of Proceedings held on February 6, 2013, before Judge Nathanael M. Cousins. Court Reporter/Transcriber Belle Ball, CSR, CRR, RDR, Telephone number (415)3732529, belle_ball@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. Release of Transcript Restriction set for 5/16/2013. (Ball, Belle) (Filed on 2/15/2013) (Entered: 02/15/2013)
722 MOTION for Partial Summary Judgment ﬁled by Taco Bell Corp.. Responses due by 3/18/2013. Replies due by 3/25/2013. (Attachments: # 1 Declaration of Gregory F. Hurley, # 2 Exhibit 1 to Gregory F. Huley Declaration, # 3 Proposed Order Re: Motion for Partial Summary Judgment)(Hurley, Gregory) (Filed on 3/4/2013) (Entered: 03/04/2013)
723 ERRATA re 722 MOTION for Partial Summary Judgment by Taco Bell Corp..

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(Attachments: # 1 Exhibit A - Taco Bell's Motion for Partial Summary Judgment, # 2 Exhibit B - Taco Bell's Proposed Order Re: Motion for Partial Summary Judgment) (Hurley, Gregory) (Filed on 3/5/2013) (Entered: 03/05/2013)

03/18/2013

724 RESPONSE (re 722 MOTION for Partial Summary Judgment ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 3/18/2013) (Entered: 03/18/2013)

03/25/2013 725 REPLY (re 722 MOTION for Partial Summary Judgment ) ﬁled byTaco Bell Corp.. (Hurley, Gregory) (Filed on 3/25/2013) (Entered: 03/25/2013)

03/26/2013 726 NOTICE by Ronald Elsberry Of Related Cases (Elsberry, Ronald) (Filed on 3/26/2013) (Entered: 03/26/2013)

04/22/2013

727 ORDER RE Motion for Partial Summary Judgment. Signed by Judge Hamilton on 4/22/2013. (pjhlc1, COURT STAFF) (Filed on 4/22/2013) Modiﬁed on 4/23/2013 (vlk, COURT STAFF). (Entered: 04/22/2013)

04/30/2013

728 Joint Statement in Response to April 22, 2013 Order by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp. (Fox, Timothy) (Filed on 4/30/2013) Modiﬁed on 5/1/2013 (vlk, COURT STAFF). (Entered: 04/30/2013)

05/14/2013 729 Order by Hon. Phyllis J. Hamilton granting 718 Stipulation.(nah, COURT STAFF) (Filed on 5/14/2013) (Entered: 05/14/2013)

06/24/2013

730 USCA Memorandum as to 693 Notice of Appeal, ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. DISMISSED. (vlk, COURT STAFF) (Filed on 6/24/2013) (Entered: 06/25/2013)

07/17/2013

731 MANDATE of USCA as to 693 Notice of Appeal, ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates (vlk, COURT STAFF) (Filed on 7/17/2013) (Entered: 07/19/2013)

08/05/2013 732 ORDER by Judge Hamilton granting 722 Motion for Partial Summary Judgment (pjhlc1, COURT STAFF) (Filed on 8/5/2013) (Entered: 08/05/2013)

08/07/2013 733 NOTICE of Change of Address by Amy F. Robertson (Robertson, Amy) (Filed on 8/7/2013) (Entered: 08/07/2013)

08/12/2013

734 ORDER SCHEDULING CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 9/5/2013. Initial Case Management Conference set for 9/12/2013 02:00 PM. Signed by Judge Phyllis J. Hamilton on 8/12/13. (nah, COURT STAFF) (Filed on 8/12/2013) (Entered: 08/12/2013)

08/14/2013

735 MOTION for Leave to File Motion for Interim Award of Attorneys' Fees ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 8/14/2013) (Entered: 08/14/2013)

08/14/2013

736 Proposed Order Granting Plaintiffs' Motion for Leave to File Motion for Interim Award of Attorneys' Fees by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 8/14/2013) (Entered: 08/14/2013)

08/15/2013

737 Joint MOTION to Continue Case Management Conference ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 8/15/2013) (Entered: 08/15/2013)

08/16/2013

738 ORDER by Judge Hamilton vacating October 16, 2013 hearing date; terminating 737 Motion to Continue (pjhlc1, COURT STAFF) (Filed on 8/16/2013) (Entered: 08/16/2013)

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08/20/2013 08/21/2013 08/21/2013 08/28/2013
09/03/2013 09/27/2013 10/07/2013 10/07/2013 10/09/2013
10/10/2013 10/23/2013 10/30/2013 11/07/2013

CAND-ECF
739 Joint MOTION to Continue Case Management Conference ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 8/20/2013) (Entered: 08/20/2013)
740 ORDER SETTING CASE MANAGEMENT CONFERENCE by Hon. Phyllis J. Hamilton granting 739 Motion to Continue.(nah, COURT STAFF) (Filed on 8/21/2013) (Entered: 08/21/2013)
Set Deadlines/Hearings: Joint Case Management Statement due by 11/7/2013. Further Case Management Conference set for 11/14/2013 02:00 PM. (nah, COURT STAFF) (Filed on 8/21/2013) (Entered: 08/21/2013)
741 RESPONSE (re 735 MOTION for Leave to File Motion for Interim Award of Attorneys' Fees ) In Opposition to Plaintiffs' Motion for Leave to File Motion for Interim Award of Attorney's Fees ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Gregory F. Hurley, # 2 Declaration of Richard Deleissegues)(Hurley, Gregory) (Filed on 8/28/2013) (Entered: 08/28/2013)
742 REPLY (re 735 MOTION for Leave to File Motion for Interim Award of Attorneys' Fees ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Fox, Timothy) (Filed on 9/3/2013) (Entered: 09/03/2013)
743 ORDER by Judge Hamilton denying 735 Motion for Leave to File Motion for Interim Award of Attorney's Fees (pjhlc1, COURT STAFF) (Filed on 9/27/2013) (Entered: 09/27/2013)
744 MOTION to Substitute Attorney ﬁled by Taco Bell Corp.. (Attachments: # 1 Proposed Order Granting Substitution of Attorney)(Chilleen, Michael) (Filed on 10/7/2013) (Entered: 10/07/2013)
745 Order by Hon. Phyllis J. Hamilton granting 744 Motion to Substitute Attorney. (nah, COURT STAFF) (Filed on 10/7/2013) (Entered: 10/07/2013)
746 MOTION for Leave to File Second Amended Class Action Complaint ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Second Amended Complaint, # 3 Exhibits 1-7 to Second Amended Complaint, # 4 Exhibits 8-9 to Second Amended Complaint, # 5 Exhibits 10-23 to Second Amended Complaint, # 6 Proposed Order)(Robertson, Amy) (Filed on 10/9/2013) (Entered: 10/09/2013)
Set/Reset Deadlines as to 746 MOTION for Leave to File Second Amended Class Action Complaint. Response due by 10/23/2013. Reply due by 10/30/2013. Motion Hearing set for 11/13/2013 09:00 AM before Hon. Phyllis J. Hamilton. (nah, COURT STAFF) (Filed on 10/10/2013) (Entered: 10/10/2013)
747 RESPONSE (re 746 MOTION for Leave to File Second Amended Class Action Complaint ) ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Gregory Hurley (Exs. A-B) In Support of Opposition)(Hurley, Gregory) (Filed on 10/23/2013) (Entered: 10/23/2013)
748 REPLY (re 746 MOTION for Leave to File Second Amended Class Action Complaint ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 10/30/2013) (Entered: 10/30/2013)
749 CLERKS NOTICE ADVANCING DATE AND TIME OF CASE MANAGEMENT CONFERENCE. You are hereby notiﬁed that the November 14, 2013 case management conference is advanced to November 13, 2013 at 9:00 a.m. Further Case Management Conference set for 11/13/2013 09:00 AM. (THIS IS A TEXT ONLY DOCKET ENTRY,

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12/05/2013 01/15/2014
01/15/2014
01/15/2014 02/12/2014

CAND-ECF
THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE)(nah, COURT STAFF) (Filed on 11/7/2013) (Entered: 11/07/2013)
750 JOINT CASE MANAGEMENT STATEMENT ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp.. (Robertson, Amy) (Filed on 11/7/2013) Modiﬁed on 11/8/2013 (vlkS, COURT STAFF). (Entered: 11/07/2013)
751 Minute Entry: Motion Hearing held on 11/13/2013 before Phyllis J. Hamilton (Date Filed: 11/13/2013) re 746 MOTION for Leave to File Second Amended Class Action Complaint ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Raynee Mercado.) (nah, COURT STAFF) (Date Filed: 11/13/2013) (Entered: 11/13/2013)
Set/Reset Hearing re 751 Motion Hearing. Evidentiary Hearing set for 3/21/2014 08:30 AM before Hon. Phyllis J. Hamilton. (nah, COURT STAFF) (Filed on 11/13/2013) (Entered: 11/13/2013)
752 ORDER by Judge Hamilton granting in part and denying in part 746 Motion for Leave to File (pjhlc1, COURT STAFF) (Filed on 11/21/2013) (Entered: 11/21/2013)
753 AMENDED COMPLAINT Second Amended Class Action Complaint against Taco Bell Corp.. Filed byKatherine Corbett, Francie E. Moeller, Craig Thomas Yates, Edward Muegge. (Fox, Timothy) (Filed on 11/21/2013) (Entered: 11/21/2013)
754 Transcript of Proceedings held on 11-13-13, before Judge Phyllis Hamilton. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925-212-5224. 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 2/24/2014. (kpw, COURT STAFF) (Filed on 11/24/2013) (Entered: 11/24/2013)
755 ANSWER to Amended Complaint byTaco Bell Corp.. (Hurley, Gregory) (Filed on 12/5/2013) (Entered: 12/05/2013)
756 MOTION for Permanent Injunction ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 3/21/2014 08:30 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 2/12/2014. Replies due by 2/19/2014. (Attachments: # 1 Declaration of Timothy P. Fox and Exhibits 1-11, # 2 Exhibits 12-25 to Fox Declaration, # 3 Proposed Permanent Injunction)(Fox, Timothy) (Filed on 1/15/2014) (Entered: 01/15/2014)
757 MOTION re Injunctive Relief ﬁled by Taco Bell Corp.. Responses due by 1/29/2014. Replies due by 2/5/2014. (Attachments: # 1 Notice of Motion Re Injunctive Relief Per Docket #751, # 2 Declaration of Elmer in Support of Motion Re Injunctive Relief Per Docket #751, # 3 Declaration of Hurley in Support of Motion Re Injunctive Relief Per Docket #751, # 4 Proposed Order Granting Motion Re Injunctive Relief Per Docket #751) (Hurley, Gregory) (Filed on 1/15/2014) Modiﬁed on 1/16/2014 (vlkS, COURT STAFF). (Entered: 01/15/2014)
Set Motion Hearing as to 757 MOTION re Injunctive Relief. Motion Hearing set for 3/21/2014 08:30 AM before Hon. Phyllis J. Hamilton. (vlkS, COURT STAFF) (Filed on 1/15/2014) (Entered: 01/16/2014)
758 RESPONSE (re 757 MOTION re Injunctive Relief ) ﬁled byKatherine Corbett, Francie E.

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03/18/2014 03/18/2014 03/26/2014
03/27/2014 03/27/2014 04/01/2014

CAND-ECF
Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Declaration of Amy F. Robertson)(Fox, Timothy) (Filed on 2/12/2014) (Entered: 02/12/2014)
759 RESPONSE (re 756 MOTION for Permanent Injunction ) ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Elmer in Support of Opposition to Motion for Entry of Permanent Injunction, # 2 Declaration of Hurley in Support of Motion for Entry of Permanent Injunction, # 3 Exhibit A to Hurley Declaration, # 4 Exhibit B to Hurley Declaration)(Hurley, Gregory) (Filed on 2/12/2014) (Entered: 02/12/2014)
760 REPLY (re 757 MOTION re Injunctive Relief ) ﬁled byTaco Bell Corp.. (Attachments: # 1 Declaration of Hurley in Support of Reply in Support of Its Motion Re Injunctive Relief Per Docket #751)(Hurley, Gregory) (Filed on 2/19/2014) (Entered: 02/19/2014)
761 MOTION to Strike 760 Reply to Opposition/Response, ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 3/21/2014 08:30 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 3/5/2014. Replies due by 3/12/2014. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 2/19/2014) (Entered: 02/19/2014)
762 Joint Statement re: March 21, 2014 Hearing by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp.. (Fox, Timothy) (Filed on 3/4/2014) Modiﬁed on 3/5/2014 (vlkS, COURT STAFF). (Entered: 03/04/2014)
763 CLERKS NOTICE. You are hereby notiﬁed that the March 21, 2014 Evidentiary Hearing is VACATED. The court will hear argument on Cross Motions Re: Injunctive Relief on March 26, 2014 at 9:00 a.m., Set/Reset Deadlines as to 757 MOTION re Injunctive Relief, 756 MOTION for Permanent Injunction , 761 MOTION to Strike . Motion Hearing set for 3/26/2014 09:00 AM before Hon. Phyllis J. Hamilton. (THIS IS A TEXT ONLY DOCKET ENTRY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE)(nahS, COURT STAFF) (Filed on 3/4/2014) Modiﬁed on 3/4/2014 (nahS, COURT STAFF). (Entered: 03/04/2014)
764 REPLY (re 756 MOTION for Permanent Injunction ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 3/18/2014) (Entered: 03/18/2014)
765 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates re 761 MOTION to Strike 760 Reply to Opposition/Response, (Fox, Timothy) (Filed on 3/18/2014) (Entered: 03/18/2014)
766 Minute Entry: Motion Hearing held on 3/26/2014 before Phyllis J. Hamilton (Date Filed: 3/26/2014) re 756 MOTION for Permanent Injunction ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates, 757 MOTION re Injunctive Relief ﬁled by Taco Bell Corp. Bench Trial set for 4/25/2014 09:00 AM before Hon. Phyllis J. Hamilton. (Court Reporter Raynee Mercado.) (nahS, COURT STAFF) (Date Filed: 3/26/2014) (Entered: 03/26/2014)
767 TRANSCRIPT ORDER by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates for Court Reporter Raynee Mercado. (Robertson, Amy) (Filed on 3/27/2014) (Entered: 03/27/2014)
768 TRANSCRIPT ORDER by Taco Bell Corp. for Court Reporter Raynee Mercado. (Hurley, Gregory) (Filed on 3/27/2014) (Entered: 03/27/2014)
769 NOTICE of Supplemental Authority in Support of Motion Re Injunctive Relief Per Docket 751 by Taco Bell Corp. (Attachments: # 1 Exhibit A to Notice of Supplemental

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CAND-ECF
Authority)(Hurley, Gregory) (Filed on 4/1/2014) Modiﬁed on 4/2/2014 (vlkS, COURT STAFF). (Entered: 04/01/2014)
770 STIPULATION WITH PROPOSED ORDER Stipulation to Extend Deadlines to File Witness and Exhibit Lists ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration Declaration of Timothy P. Fox in Support of Stipulation to Extend Deadlines to File Witness and Exhibit Lists, # 2 Proposed Order)(Fox, Timothy) (Filed on 4/2/2014) (Entered: 04/02/2014)
771 ORDER GRANTING STIPULATION TO EXTEND DEADLINES TO FILE WITNESS AND EXHIBIT LISTS by Hon. Phyllis J. Hamilton granting 770 Stipulation.(nahS, COURT STAFF) (Filed on 4/2/2014) (Entered: 04/02/2014)
772 Ex Parte Application for a Ruling on Motion to Dismiss Prior to Trial ﬁled by Taco Bell Corp.. (Attachments: # 1 Declaration of Hurley in Support of Ex Parte Application for a Ruling on Motion to Dismiss Prior to Trial, # 2 Exhibit A to Declaration of Hurley, # 3 Proposed Order Granting Ex Parte Application for a Ruling on Motion to)(Hurley, Gregory) (Filed on 4/9/2014) (Entered: 04/09/2014)
773 Transcript of Proceedings held on March 26, 2014, before Judge Phyllis J. Hamilton. Court Reporter Raynee H. Mercado, CSR, Telephone number 510-502-6175, cacsr8258@gmail.com, raynee_mercado@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 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 7/9/2014. (Related document(s) 768 , 767 ) (rhm) (Filed on 4/10/2014) (Entered: 04/10/2014)
774 RESPONSE (re 772 Ex Parte Application for a Ruling on Motion to Dismiss Prior to Trial ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 4/11/2014) (Entered: 04/11/2014)
775 MOTION Clariﬁcation and Request for Pretrial Conference ﬁled by Taco Bell Corp.. (Attachments: # 1 Declaration of Hurley in Support of Administrative Motion for Clariﬁcation and Request for Pretrial Conference, # 2 Exhibit A in Support of Hurley Declaration, # 3 Proposed Order Granting Taco Bell's Administrative Motion for Clariﬁcation and Request for Pretrial Conference)(Hurley, Gregory) (Filed on 4/11/2014) Modiﬁed on 4/11/2014 (vlkS, COURT STAFF). (Entered: 04/11/2014)
776 RESPONSE (re 775 MOTION Clariﬁcation and Request for Pretrial Conference ) ﬁled byKatherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/14/2014) (Entered: 04/14/2014)
777 MOTION for leave to appear in Pro Hac Vice by Sarah Morris ( Filing fee $ 305, receipt number 0971-8531625.) ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing)(Morris, Sarah) (Filed on 4/14/2014) (Entered: 04/14/2014)
778 Order by Hon. Phyllis J. Hamilton granting 777 Motion for Pro Hac Vice for Sarah M. Morris.(nahS, COURT STAFF) (Filed on 4/15/2014) (Entered: 04/15/2014)
779 ORDER by Judge Hamilton denying 772 Ex Parte Application ; granting in part and denying in part 775 Motion for Clariﬁcation and for Pretrial Conference (pjhlc1, COURT STAFF) (Filed on 4/15/2014) (Entered: 04/15/2014)
780 NOTICE of Appearance by Michael Chilleen (Chilleen, Michael) (Filed on 4/15/2014)

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(Entered: 04/15/2014)

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04/16/2014

781 Proposed Order [Proposed] Revised Permanent Injunction by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Robertson, Amy) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/16/2014

782 Exhibit List Plaintiffs Exhibit List by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates.. (Robertson, Amy) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/16/2014

783 Witness List by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates Plaintiffs Witness List. (Robertson, Amy) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/16/2014

784 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates Plaintiffs Designation of Deposition and Trial Transcript Excerpts for Witnesses Who May Not Testify in Person and Other Discovery Responses That May Be Offered at Trial (Robertson, Amy) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/16/2014 785 Exhibit List by Taco Bell Corp... (Hurley, Gregory) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/16/2014 786 Witness List by Taco Bell Corp. . (Hurley, Gregory) (Filed on 4/16/2014) (Entered: 04/16/2014)

04/17/2014 787 NOTICE of Lodging Trial Exhibits, ﬁled by Taco Bell Corp.. (Hurley, Gregory) (Filed on 4/17/2014) Modiﬁed on 4/18/2014 (jlmS, COURT STAFF). (Entered: 04/17/2014)

04/21/2014

788 Exhibit List Plaintiffs' Submission of Revised Exhibits in Response to Defendant's Disclosure of Current List of Restaurants by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates.. (Robertson, Amy) (Filed on 4/21/2014) (Entered: 04/21/2014)

04/21/2014

789 NOTICE of Withdrawal of Revised Exhibits re 788 Exhibit List by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates (Robertson, Amy) (Filed on 4/21/2014) Modiﬁed on 4/22/2014 (vlkS, COURT STAFF). (Entered: 04/21/2014)

04/21/2014

790 MOTION in Limine ﬁled by Taco Bell Corp.. Responses due by 5/5/2014. Replies due by 5/12/2014. (Attachments: # 1 Declaration of Hurley in Support of Taco Bell's Motions in Limine, # 2 Exhibit A to Hurley Declaration, # 3 Exhibit B to Hurley Declaration, # 4 Exhibit C to Hurley Declaration, # 5 Exhibit D to Hurley Declaration, # 6 Exhibit E to Hurley Declaration)(Hurley, Gregory) (Filed on 4/21/2014) (Entered: 04/21/2014)

04/21/2014 791 OBJECTIONS to Plaintiffs' Designation of Deposition Excerpts by Taco Bell Corp.. (Hurley, Gregory) (Filed on 4/21/2014) (Entered: 04/21/2014)

04/24/2014

792 CLERKS NOTICE. You are hereby notiﬁed that the April 25, 2014 Bench Trial is VACATED. (THIS IS A TEXT ONLY DOCKET ENTRY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE) (nahS, COURT STAFF) (Filed on 4/24/2014) (Entered: 04/24/2014)

05/06/2014

793 Joint MOTION for Extension of Time to File Papers in Support of Preliminary Approval of Class Settlement ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp. (Attachments: # 1 Proposed Order)(Morris, Sarah) (Filed on 5/6/2014) Modiﬁed on 5/7/2014 (kcS, COURT STAFF). (Entered: 05/06/2014)

05/07/2014 794 Order by Hon. Phyllis J. Hamilton granting 793 Motion for Extension of Time to File.(nah, COURT STAFF) (Filed on 5/7/2014) (Entered: 05/07/2014)

05/20/2014 795 Joint MOTION for preliminary approval ﬁled by Katherine Corbett, Francie E. Moeller,

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CAND-ECF
Edward Muegge, Craig Thomas Yates. Motion Hearing set for 6/4/2014 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 6/2/2014. Replies due by 6/3/2014. (Attachments: # 1 Declaration, # 2 Proposed Order) (Fox, Timothy) (Filed on 5/20/2014) (Entered: 05/20/2014)

06/04/2014

796 Minute Entry: Motion Hearing held on 6/4/2014 before Phyllis J. Hamilton (Date Filed: 6/4/2014) re 795 Joint MOTION for preliminary approval ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Kathy Wyatt.) (nahS, COURT STAFF) (Date Filed: 6/4/2014) (Entered: 06/04/2014)

06/04/2014

Set/Reset Hearing re 796 Motion Hearing. Final Hearing set for 9/24/2014 09:00 AM. (nahS, COURT STAFF) (Filed on 6/4/2014) (Entered: 06/04/2014)

06/04/2014

797 Proposed Order re 795 Joint MOTION for preliminary approval [Proposed] Amended Order Preliminarily Approving Class Settlement by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larkin, Jocelyn) (Filed on 6/4/2014) (Entered: 06/04/2014)

06/04/2014

798 ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT by Hon. Phyllis J. Hamilton granting 795 Motion for Preliminary Approval of Class Action Settlement.(nahS, COURT STAFF) (Filed on 6/4/2014) (Entered: 06/04/2014)

06/23/2014 799 OBJECTION to Settlement Agreement ﬁled by Diane Michna. (Attachments: # 1 Envelope)(vlk, COURT STAFF) (Filed on 6/23/2014) (Entered: 06/26/2014)

06/23/2014 800 Letter from Elvis Singleton dated 6/18/2014 re no objection to settlement agreement. (vlk, COURT STAFF) (Filed on 6/23/2014) (Entered: 06/26/2014)

06/23/2014 801 OBJECTIONS to Settlement Agreement ﬁled by Sharon Powers. (Attachments: # 1 Envelope)(vlk, COURT STAFF) (Filed on 6/23/2014) (Entered: 06/26/2014)

07/11/2014

802 Letter from Michael Jones dated 7/8/2014 re objection to proposed settlement. (Attachments: # 1 Envelope)(vlk, COURT STAFF) (Filed on 7/11/2014) (Entered: 07/11/2014)

08/01/2014

803 Consent MOTION for Attorney Fees ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 9/24/2014 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. (Attachments: # 1 Declaration of Amy Robertson, # 2 Declaration of Antonio Lawson, # 3 Declaration of Jocelyn Larkin, # 4 Declaration of Mari Mayeda, # 5 Declaration of Linda Dardarian, # 6 Proposed Order Granting Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees and Costs)(Robertson, Amy) (Filed on 8/1/2014) Modiﬁed on 8/4/2014 (vlkS, COURT STAFF). (Entered: 08/01/2014)

08/29/2014

804 Consent MOTION for Settlement Motion for Final Approval of Class Settlement ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates. Motion Hearing set for 9/24/2014 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 9/12/2014. Replies due by 9/19/2014. (Attachments: # 1 Declaration Declaration of Timothy P. Fox in Support of Unopposed Motion for Final Approval of Class Settlement, # 2 Declaration Declaration of Ann Dickinson, # 3 Proposed Order)(Fox, Timothy) (Filed on 8/29/2014) (Entered: 08/29/2014)

09/03/2014 805 OBJECTIONS to Settlement Agreement. (Attachments: # 1 Envelope)(vlk, COURT STAFF) (Filed on 9/3/2014) (Entered: 09/03/2014)

09/04/2014

806 NOTICE by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates of Class Counsel's Response to Objection of William Earle Sheehan and Virginia Helen Sheehan (Fox, Timothy) (Filed on 9/4/2014) (Entered: 09/04/2014)

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807 Minute Entry: Motion Hearing held on 9/24/2014 before Phyllis J. Hamilton (Date Filed: 9/24/2014) re 804 Consent MOTION for Settlement Motion for Final Approval of Class Settlement ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates, 803 Consent MOTION for Attorney Fees ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. (Court Reporter Diane Skillman.) (nahS, COURT STAFF) (Date Filed: 9/24/2014) (Entered: 09/24/2014)
808 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS by Hon. Phyllis J. Hamilton granting 803 Motion for Attorney Fees.(nahS, COURT STAFF) (Filed on 9/24/2014) (Entered: 09/24/2014)
809 ORDER GRANTING FINAL APPROVAL TO CLASS SETTLEMENT by Hon. Phyllis J. Hamilton granting 804 Motion for Settlement.(nahS, COURT STAFF) (Filed on 9/24/2014) (Entered: 09/24/2014)
810 STIPULATION AND MOTION WITH PROPOSED ORDER for Entry of Judgment and Dismissal with Prejudice, ﬁled by Katherine Corbett, Francie E. Moeller, Edward Muegge, Craig Thomas Yates, Taco Bell Corp. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Filed on 9/29/2014) Modiﬁed on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)
811 JUDGMENT and ORDER of Dismissal With Prejudice. Motions terminated: 810 STIPULATION WITH PROPOSED ORDER Stipulated Motion for Entry of Judgment and Dismissal with Prejudice ﬁled by Edward Muegge, Francie E. Moeller, Katherine Corbett, Craig Thomas Yates. Signed by Judge Phyllis J. Hamilton on 9/29/2014. (pjhlc3, COURT STAFF) (Filed on 9/29/2014) (Entered: 09/29/2014)
812 Letter from Sharon Powers dated 9/30/2014 re judgment. (Attachments: # 1 Envelope) (vlkS, COURT STAFF) (Filed on 10/3/2014) (Entered: 10/06/2014)
813 Letter from Beverly Leary dated 11/4/2014 re judgment. (Attachments: # 1 Envelope) (vlkS, COURT STAFF) (Filed on 11/14/2014) (Entered: 11/14/2014)
814 CLERK'S NOTICE Retrieval of Submitted Documents (vlk, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

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