United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MIGUEL CASTANEDA, KATHERINE

CORBETT, and JOSEPH WELLNER, on

behalf of themselves and others similarly

situated,

Plaintiffs,

 v.

BURGER KING CORPORATION,

Defendant. /

No. C 08-04262 WHA

TENTATIVE ORDER

GRANTING DEFENDANT’S

MOTION TO EXTEND

DISCOVERY CUT-OFF AND

TO TAKE INDIVIDUALIZED

DISCOVERY AS TO

OPT-IN PLAINTIFFS

The following tentative order grants defendant’s motion as follows. Plaintiffs shall file

a written response to the tentative order no later than NOON ON FEBRUARY 11, 2010. Any reply

shall be filed no later than NOON ON FEBRUARY 12, 2010.

* * *

This is an ADA action alleging barriers to access on behalf of mobility-impaired

customers of restaurants leased by defendant. Ten classes have been certified — one for each

of the restaurants at which a named plaintiff allegedly encountered an access barrier — with

separate trials scheduled for each class. Pursuant to a December 15 order, the fact discovery

cut-off for all ten trials was January 29, 2010, and the parties were each permitted to take 25

depositions. Class members are required to opt-in to be eligible to claim individualized

statutory damages pursuant to the Unruh Act and the CDPA. The deadline for persons to opt in

as class members is March 1, 2010. The first trial is scheduled to begin on April 19, 2010.

Case 3:08-cv-04262-WHA Document 295 Filed 02/08/10 Page 1 of 2
United States District Court

For the Northern District of California

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Defendant Burger King Corporation now moves to extend the fact discovery cut-off and

to expand the deposition limit so that it may take individualized discovery including depositions

from all claimants who affirmatively opt in to the classes and who are therefore eligible for

individualized statutory damages. It also seeks an order that plaintiffs be required to

supplement their Rule 26 disclosures and answers to written discovery as to all such claimants

who affirmatively opt in before the March 1 cut-off.

Defendant’s motion is (tentatively) GRANTED. These are claimants with substantial

potential claims and defendant could not previously depose them before the discovery cut-off

because their identities were unknown. Fairness requires that these claimants submit to

depositions so that defendant can learn the basis of their claims for damages. Each claimant

shall submit to a two-hour deposition and shall bring all documents bearing upon his or her

prayer for statutory damages to the deposition, including documentation of occasions on which

he or she visited the restaurants in question. Each claimant’s deposition should be held no later

than one week before the earliest trial corresponding to a restaurant at which the claimant

allegedly encountered a barrier to access. For example, depositions of claimants who allege

that they were customers of the restaurant at issue in the first trial (located at 6021 Central

Avenue, in El Cerrito) shall be held no later than APRIL 12, 2010. The Court expects counsel to

work cooperatively to maximize the number of depositions that can be scheduled for one day. 

These depositions shall be scheduled without the necessity of subpoenas to claimants and it

shall be plaintiffs’ counsel’s responsibility to ensure the availability of claimants and their

documents. Other than as stated, Rule 26(a) disclosures would not be required.

IT IS SO ORDERED.

Dated: February 8, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-04262-WHA Document 295 Filed 02/08/10 Page 2 of 2