F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L A R R Y B E A U C H A M P , Plaintiff-Appellant
,

v.

C I T Y O F L O N G B E A C H , Defendant-Appellee

. No. 11-55780

D.C. No. 2:10-cv-01270-RGK-J C

ORDER CERTI F YI

N G DETERMI

N ATI VE QUESTI O NS OF L AW TO THE CAL I F O RNI A SUPREME COURT

F iled September 17, 2013

B e fore: Consuelo M. Callahan, Sandra S. I kuta, and Andrew D. Hurwitz , Circuit J udg es.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 2

SUMMARY *

Certif ication of Questions to State Suprem e Court

The panel filed an order certify ing to the Califor n i a Supreme Court determinative q uestions of law reg arding the California Disabled Persons Act.

The panel certified the following questions:

Section 54.3(a) of the California Civil Code provides that

a person who violates the California Disabled Person s A c t, Cal. Civ. Code §§ 5 4
, 54.1, is liable for actual damag es for “each offense

. . . but in no case less t h a n o n e t housand d o l l a rs ($1,000).” Does the phrase “each offense” refer t o each occasion when a plaintiff e n counter s a barrier that denies the plaintiff full and equal access to a public facility
, or should a trial court construe “each offense” more narrowly
, p a r ticularly in situations where a plaintiff repeatedl y encounters the same barrier? I f the phrase “each offense” is
not susceptible to a narrower c onstruction, under what circumstances would the pena lty scheme in section 54.3 violate the due process clause of the state constitution?

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 3

ORDER

W e respectfully request th a t the Supreme Court o f California ex ercise its discretion to decide the certi f ied questions set forth in Part I I of this order.

I

Caption and Counsel

A. The caption of the case is:

No. 11-55780 L A RRY B EAUCHAMP

Plaintiff-Appellant

v.

CI TY OF L ONG B EACH

Defendant-Appellee

B

. The names and addresses of counsel for the parties are:

F or Plaintiff-Appellant :

J eff A. Harrison, B arbosa, Metz & Harrison, L L P 139 Richmond Street, El Seg undo, CA 90245

F or Defendant-Appellee :
Monte H. Machit, Principal Deputy City Attorney Office of the L ong B e a ch City Attorney 333 W e st Ocean B lvd., 11th F loor L ong B each, CA 90802B E A U C H A M P V

. C I T Y O F L O N G B E A C H 4

Timothy

T. Coates and L illie Hsu Greines, Martin, Stein & Richland, L L P 5900 W ilshire B lvd., 12th F loor L os Ang eles, CA 90036

C. D es i g nation of party to be deemed petitioner: PlaintiffAppellant

II

Question Certif

ied

Pursuant to Rule 8.548 of the California Rules of Court,

a panel of the United States Court o f Appeals for the Nin th Circuit, before which this appeal is pending
, requests that the Supreme Court of California answer the question presented below. This court will a c cept the California Supreme Court’s decision on this question. Our phrasing of the question is not intended to restrict th e California Supreme Court’s consideration of the case. The question c e r t i f i e d is a s follows.

Section 54.3(a) of the California Civil Code provides that a person who v iolates the Californi a D i s a

b l e d P e rsons Act (CDPA), Cal. Civ. C o d e § § 54, 54.1, is liable for actual d a m a g es for “each offense

. . . but in no cas e le ss than o ne thousand dollars ($1,000).” 1

1 Cal. Civ . Co d e § 5 4 .3 (a) p ro v id es, in relev an t p art:

A n y p erso n o r p erso n s, f

irm o r co rp o ratio n w

h o d en ies

o r in terf eres w ith ad m ittan ce to o r en j o y m en t o f th e p u b lic f acilities as sp ecif

ied in Sectio n s 5 4 an d 5 4 .1 orB E A U C H A M P V

. C I T Y O F L O N G B E A C H 5

Does the phrase “each offense” refer to e ach occasion when a plaintiff encounters a barrier that den i e s the plaintiff full and equal access to a public f

a c il i t y , or should a trial court construe “each offense” more n a rrowly
, particularly in situatio n s where a plaintiff repeatedly encounters the same barrier? I f the phrase “each offense” is no t s u s ceptible to a

n a r r o w e r c o n s t r u c t i o n , u n d e r w h a t circumstances would the penalty scheme in section 54.3 violate the due process clause o f the state constitution?

III

Statem ent of

F acts

L arry B e auchamp, a resi d en t of L ong B e ach and a quadripleg ic, sued the City of L ong B e a c h on F e bruary 19, 2010, for maintaining inaccessible sidewalks, curbs, and curb
ramps in violation of sections 51, 54
, 5 4.1, and 54.3 of the California Civil Code (among other claims )

. The district
court d etermined that B eauchamp was a “qualified individual with a disability ” for purposes of the CDPA, that the City ’s

o th erw i se in terf

er e s w ith th e rig h ts o f an in d iv id u al

w ith a d i s a b i lity u

n der Sectio n s 5 4
, 5 4 .1 an d 5 4 .2 is liab le f o r each o f

f en s e f o r th e actu al d am ag es an d an y

am o u n t as m ay b e d e t e r m in ed b y a j u ry , o r th e co u rt sittin g w ith o u

t a j u ry , u p to a m ax i m

u m o f th r e e tim es th e am o u n t o f actu a l d am ag es b u t in n o case less th an

o n e t h o u s a n d d o llars ($ 1,0 0 0 ), an d atto rn ey ’ s f ees as

m ay b e d eterm in ed b y th e co u rt in ad d itio n th ereto , su f f ered b y an y p erso n d en ied an y o f th e rig h ts p ro v id ed in Sectio n s 5 4 , 5 4 .1 , an d 5 4.2

.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 6

s t reets and sidewalks constituted “public facilities,” fo r purposes of section 54(a) o f the C a l i f o r n ia Civil Code, a

nd that certain barriers Beauchamp encountered on the City ’s
streets and sidewalks denied h im full and equal access to such public facilities. According l y , the district court concluded that B eauc h a mp w as entitled to statutory damag es under section 54.3 for barriers he encountered on the City ’s streets and sidewalks during

the relevant limitations period. 2

The district court held that B e auchamp established that he

was den i e d ac c ess by barriers at two specific locations a nd inconvenienced, if not also denied access, by barriers at two others. I t made the following finding s of fact:

11. Once per month wi t h in the relevant statutory period, Plaintiff attempted to use the curb ramp and sidewalk seg ments near t h e Piz z a Hut located at the intersection of Market Street and Orang e Avenue. Plaintiff was denied access because the intersection lacked

one cu r b cut, h ad three noncompliant curb cuts, and had raised sidewalk seg ments due to tree roots.

12. F our times a week within t h e relevant statutory period, Plaintiff attempted to use the curb ramp a

nd sidewalk seg ments near the bus stop at the intersection of Atlantic Avenue a nd 51st Street, which is loc a ted near his residence. Plai ntiff was d enied access

2 T h e d istrict co u

rt co n clu d ed th at th e relev an t lim itatio n s p erio d w as th e tw o y ear p erio d b ef

o re h is actio n

w as f iled o n Feb ru ary 1 9, 2 01 0

.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 7

b e c a u s e t h e i n t e r s e c t i o n h a d t h r e e noncompliant curb cuts.

13. W it h in the r elevant statutory period, Plaintiff frequently attempted to use Sout h Street b etween Atlantic Avenue and Cherry A v e n u e , but had to travel in the street due t o barriers in the sidewalk seg ments or a lack of curb cuts.

14. W ithin the r elevant statutory period, Plaintiff frequently a t t empted to use Atlantic Avenue between South Street a nd 36th Street, but had to travel in the street due to barriers in the sidewalk seg ments or a lack of curb cuts.

On the basis o f these finding s, the court concluded as follows:

The Court finds that Plaintiff is entitled to $5,000 f or e ach of the t w o barriers that Plai n tiff frequently encountered near his home, identified in p a r ag raphs 13 and 14 o f the Fi n d ing s of F act above. Additionally
, Plaintiff is entitled to $7,000 for the two barriers identified in parag r aphs 11 and 12 o f the F inding s of F a ct above. T hus in total, the Court a wards Plaintiff $ 17,000 in s t atutory damag es.

The district court did not ex p lain how it calculated these damag es o r how it identifie d what constituted an “offense” for purposes of section 54.3.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 8

B e auchamp timely appealed the district court’s dama g e award, claiming he was entitled to $ 440,000 i n statutory damag es because the district c ourt f ound th a t h e h ad encountered b arriers that de n i ed him access on 440 d istinct occasions. The City argu e s that the district court could

ex e r cise its discretion to ag g reg ate repeated encounters with the same barrier in order to ensure that d amag es under section 54.3 re m a in reasonable a nd commensurate with the defendant’s culpability

.

IV

Explanation of

Our Request

W e seek the California Supreme Court’s determination a s to the proper construction of “offense” for purposes of section 54.3, a n d specifically
, whether multiple incidents of denials of access d

ue to encounters with the same bar ri e r can constitute a sing le “offense.” W e ask f o r this assistance because the meaning

of “each offense” in the contex t of this

case is especially ambig uous and will have a s i gn i f icant impact on these and similarly -si tuated parties, and there is insufficient g u idance in the relevant statutes and case law to allow us to resolve this question.

A

Althoug h n o California court has y et construed the phrase “each offense” in section 54.3, the lang uag e and structure o f the CDPA indicates that each v i olation of a disabled individual’s rig ht “to full and equal access” to a public facility constitutes a separate “offense,” for which the individual is entitled to a minimum of $1,000 damag es.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 9

Section 54.1 of the California Civil Code sets out a rig ht

or e n titleme n t : I t provides that “ [ i] ndividuals with d isabilities shall be entitled to full and equal access” to public f a cilities. Section 54.3 of the California Civil Code states that persons, firms, or corporations that deny or interfere “with admittance
to or enjoy

ment o f the public facilities

. . . or otherwise interfere[ ] with t h e r ig hts o f an individual with a disability ”

are liable for “ e a ch offense for the actual damag es and any amount as may be determined by the jury
, or the court sitting without a jury
, up to a max im u m a m o u n t of three times the
amount of actual d amag es but in no c a s e l e ss than o ne thousand d ollars.” Althoug h the word “ offense” is n o t d e fined in the CDPA, the structure of this section sug g ests that e ach denial or interference with access constitutes an “offense.”

However, section 54.3 must be interp reted in lig ht o f section 55.56 of the California Civil Code, 3 which limited the

3 Sectio n s 5 5 .5 6 (a), (b ) an d (e) state, in relev an t p art:

(a) S tatu to ry d am ag es u n d e r eith er su b d iv isio n (a) of Sectio n 5 2 o r su

b div isio n ( a ) o f S ectio n 5 4 .3 m ay b e

reco v ered in a co n stru ctio n

- related access i b i lity claim
ag ain st a p lace o f p u

b lic acco m

m o d atio n o n ly if a

v i o l a t i o n o r v i o l a t i o n s o f o n e o r m o r e

c on stru ctio n

- related accessib i lity stan d ard s den ied th e p lain tif f f u ll a n d eq u al access t o th e place o f pu b l ic

acco m m o d atio n o n a p articu lar o ccasio n

. (b ) A plain tif

f is d en ied f

u ll an d eq u al access o n ly if th e p lain tif f p erso n ally en co u n tered th e v io latio n o n a p articu lar o ccasio n , o r th e plain tif f w as d eterred f

ro m accessin g a p lace o f p u b lic acco m

m o d atio n o n a p articu lar o ccasio n

.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 10

damag es available u n der section 54.3 for c ertain ty p es o f claims. Relevant here, section 55.56 provided that statutory d a m a ges under section 54.3(a) c ould b e recovered only i f a plaintiff personally encountered a barrier that denied the plaintiff full and equal a ccess, or w as personally deterred from a ccessing a p lace of public accommodation on a particular occasion. Cal. C iv. Code § 55.56(b). I t also provided that courts c o uld not assess damag es base d o n t h e number of violations that we re identified at a particular location, but only for “each particular occasion that a p laintiff

was denied full and equal access.” Id. § 55.56 ( e ). These restrictions sug g est that the L eg islature i ntended to prevent p l a i n t i f f s f r o m r e c o v e r i n g d a m a g e s f o r m u l t i p l e nonconforming barriers in a public facility if the plaintiff did
not actually encounter such barriers. T his lang uag e therefore raises the neg ative inference that w here a plaintiff is denied full and e qual access by b a r riers the pla i n t i ff personally

e n c o u n t ers, the plaintiff is entitled to $1,000 per e ach such denial of access.

(e) Statu to ry d am ag e s m a y b e assessed p u rsu an t to

su bd iv isio n (a) based on e a c h p articu lar o ccasio n th at th e p lain tif

f w as d en i ed f

u ll an d eq u al ac c e ss, an d n o t

u p o n th e n u m b er of v io latio n s o f co n stru ctio n

- related accessib ility stan d ard s id en tif ied at th e p lace o f

p u b l ic

acco m m o d ati o n w

h ere th e d en ial o f f

u ll an d eq u al

access o ccu rred

. If th e p lace o f p u blic acco m

m o datio n

co n s ists o f d istin ct f

acilities th at o f

f er d istin ct serv ices,
statu to ry d am ag es m ay b e assessed b ased o n each d en i al of f

u ll an d eq u al access to th e d is t i nct f acility
, an d n ot u

p o n th e n

u m ber o f v io latio n s of

co n s tru ctio n

- related accessib i l i t y s t a n d a r d s id en tif ied at th e p lace o f p u

b lic acco m

m o d atio n w

h ere th e d en ial of f u ll an d eq u al access o ccu rred

.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 11

B

Althoug h we believe it is r easonable to constru e s e ction 54.3 as requiring courts to impose $1,000 per each denial of
access, the California Supreme Court and state appell a te courts have sug g ested that penalty schemes such as those embodied in section 54.3 are to be construed narrowly

.

As a g e neral rule, the California Supreme Cour t h a s looked “with disfavor on ever

- m o u n ting penalties” and has “narrowly const r u ed the statutes w hich either require o r permit them.” Hale v. Morgan
, 22 Cal. 3d 388, 401 (1978). I n People ex rel. Y

ounger v. Superior Court
, 1 6 C a l. 3d 30 (1976), for instance, the Court considered a statute imposing

a $6,000 per day f

ine for each d ay a defend a n t “‘ c a u ses o r permits any o il

. . . to be deposited in or on any of the waters of the state.’” Id. at 43. To e n s ure that the penalties corresponded with the defendant’s cu l p ability
, the court applied a narrowing c onstruction to impose liability only for each day in which the defendant actively deposited oil on the water, not for each day during which the oil remained in the
water. Id. at 43–44; see also P e o p l e v

. Super. Ct. (

Jayhill Corp. ), 9 Cal. 3d 283, 288–89 (1973) (narrowly construing a statute imposing a $2,500 penalty for each violation of a false advertising statute by h o l d i n g that a “violation” should be based on “the number of persons to whom misrepresentations

w e re made,” rather than on “ the number of separ at el y identifiable misrepresentations involved”).

F ollowing the California Sup r e me Court’s lead, state appellate courts have likew i se narrowly construed statutes that impose penalties “per violation” or “per offense” where appropriate. I n interpreting a statu t e imposing a statutory penalty of $ 2 ,500 for “each violation” of reg ulations relatingB E A U C H A M P V

. C I T Y O F L O N G B E A C H 12

to nursing homes, f

o r i n stance, a state appellate court h eld that a trial court ha d discretion to construe “ violation” differently d epending on the particular f a cts of the case. See People v. Casa Blanca Convalescent Homes, Inc.
, 1 5 9 Cal. App. 3d 509, 5 35 (1984), abrogated on other g rounds by CalTech Commc’ns, Inc. v

. L.A. Cellular Tel. Co.
, 20 Cal. 4th 163 ( 1999). The court reasoned that “to interp r e t t h e words ‘each violation’ to authoriz e a $2,500 sanction for each a nd
every failure

. . . would resul t i n an unreasonable o r oppressive s t atutory penalty ,” w hile o n the other hand, “to take a ll v iolations constituting evidence of a b usiness practice in violation of a particular rule or reg ulation and count them

as only o ne violation would be equally unreasonable.” Id. at 534–35 (citing Hale
, 22 Cal. 3d a t 399). Therefore, the court concluded, a trial court should us e a c ircumstances-based analy sis to determine what penalties were justified based on the defendants’ conduct. Id .; se e a l s o Hewlett v. Squaw Valley Ski Corp
., 54 Cal. App. 4th 499, 536–3 7 ( 1 997) (holding that a trial court had discretion to construe an unfair

c ompetition statute, which imposed a minimum of $2,500 penalty f o r “ each violation,” as allowing it to impose damag es based on separate instances of wrongf ul tree harvesting rather than the number of trees removed).

W e further note t h at when a p e n alty scheme set forth in a state statute is not susceptible to a narrowing construction, the California Supreme Cour t has considered whether the imposition of mandatory
, ever-mounting penaltie s violates the due p rocess clause of the state a nd f ederal constitutions in

a particu l a r c ase. See Hale
, 22 Cal. 3d at 403–04 (holding that althoug h a mandatory $100-per-day penalty scheme was not n ece s s a r i ly facially unconstitutional, the imposition of a $17,300 penalty under the statute was c onstitutionally

ex c e ssive in that case, g iven the defendant’s lesser culpabilityB E A U C H A M P V

. C I T Y O F L O N G B E A C H 13

and the possibility

of an unmerited windfall to the plaintiff). The California Supreme Court has indicated that trial courts
must make this constitutional assessment on a c ase-by -c a s e basis. See Kinney v. Vaccari
, 27 Cal. 3d 348, 353, 3 56 (1980) (upholding a $36,000 penalt y under section 7 89.3 of the California Civil Code bec ause it was “proportioned to the landlord’s misconduct and necessary to a chieve the penalty ’s deterren t p urposes”); see a lso City and County of San Francisco v. S

ainez
, 77 Cal. App. 4th 1302, 1312–16 (2000) (conducting a n “ a s applied” analy sis to decide w hether a statute authoriz ing a $1,000 p er day penalty for violations o f the Housing Code violated due process, and concluding that the trial court did not a buse its discretion i n i m posing a $663,000 pen a l t y because it was not “impermissibly disprop o r t ionate ‘to the conduct’ or to the defendants’ ‘net worth’”).

I n sum, we read California cases to s ug g est that where a statute allows for the imposition of ever-mounting penalties,

a trial court should f

irst consider wh e t her the statute is susceptible to a narrowing construction i n a p articular c ase. Cf. People v. Toomey
, 157 Cal. App. 3d 1, 2 2 (1984) (ex plai n ing that where a statute “fails to specify what constitutes a sing le violation,” the courts should “determine appropriate p enalties on a case-by -case basis”). F urthermore, i f a s tatute is n ot susceptible to a narrowing construction, i t appears the trial court should consider whether t h e a pplication of the penalty provision is constitutionally ex c essive a s applied u nder the d

ue process clause of the state and federal constitutions. Hale , 22 Cal. 3d at 404.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 14

C

I n lig ht of our r ev iew, we are u ncertain about how to

co n strue “ each offense” in section 54.3 in a situation where

a plaintiff has encountered the same barrier on multi p l e occasions. I n deed, at least one district court that encountered this p recise question declined to a ddress the issue in the absence of a

ny g uidance from California courts. See Grutman v. Regents of Univ. o f Ca l

. , 8 0 7 F

. Supp. 2d 861, 870 (N.D. Ca l

. 2011) (declining to ex ercise supplemental jurisdiction over the question whether p laintiff was entitled to

recover f o r each occasion that she encountered the noncompl i a n t f

r ont door in her d ormitory
, and noting that plaintiff’s interpretation of “each o ffense” wo u l d result in a $2 million damag e award, while def e n d ant’s interpretation would “allow for an award of only a nominal $4,000”).

B e cause se c tion 54.3 does not directly define “each offense,” it may be susceptible to a narrowing construction. A trial court would not be compelled to construe that phrase
to mean each separate encounter with a b arrier, p a rticularly where a California c ourt h as stated that “[ n] ot every denial o f ‘full and equal access’ under secti o n 5 4

. 1

. . . g ives rise to a

cause of action for damag es under s e c t i on 54.3.” Urhausen

v. Longs D rug Stores Cal

. , Inc
., 155 Cal. App. 4th 254, 265 (2007). Given that section 54.3 imposes mand a t o ry , evermounting penalties, the cases reviewed above s u g g est that California courts may have the discretion to c onstrue section 54.3 narrowly in a

n appropriate case. F or instance, a tr ial
court c ould plau sibly define “ each offense” to mean e ach barrier personally encountered b y the p laintiff
, ra t h er than each occasion when the plaintiff encountered that barrier. Cf. Jayhill Corp. , 9 Cal. 3d at 289.B E A U C H A M P V

. C I T Y O F L O N G B E A C H 15

Moreover, if such an interpretation of “each offens e ”

were not p ermissible (f

o r ex ample, b ecause the California L eg islature’s enactment of section 55.56 indicated that it did
not intend any such lim i tation), then Hale sug g e sts trial
courts w ould still be r equired to determine whether imposing

a $1,000 penalty for “each offense” would be ex cessive under the state c onstitut ion. I t is not clear how the California Supreme Court would analy z e the situation in this c a s e : on the o ne hand, B eauchamp c ontinued to travel the same routes knowing there were barriers that denied him access; on the other hand, after 17 y ears, the City has still failed to remove the bar riers in the sidewalks in his neig hborhood. The Calif o r n i a cases we have reviewed do not provide clear
g uidance o n how to weig h, under California law, the need for compliance w ith the d e sire to avoi d awarding windfalls to plaintiffs in the CDPA c ontex t g enerally
, m u c h l ess in the specific situation where a plaintiff repeatedly encounters the same non-compliant barriers.

D

I n sum , a s w e read California law, we do not know whether the district court in this c ase was required to construe section 54.3 as awarding damag es for each of B eauchamp ’s 440 encounters with a barrier that denied him access, had the discretion to apply some narrowing c o n structi o n , o r could

r e duce the award to avoid due process concerns. T h e consequences of taking a ny o f t h ese approaches w ill have a sig nificant impact on both the fisc o f public entities and the ability of disabled individuals to enforce their righ t s. W e therefore submit that this question is worthy of a decision b y the C al ifornia Supreme Court, a nd that this case presents a suitable vehicle for the California Supreme Court to address this question. See Cal. Rules o f Court 8.548(a). The answerB E A U C H A M P V

. C I T Y O F L O N G B E A C H 16

g iven by the California Supreme Court will dispose of this appeal currently pending before the Ninth Circuit, a s well a s g uide the decisions in the other federal cases a pply ing California law.

V

Accom panying Materials

The clerk of this court is hereby directed to file in the California Supreme Court, under official seal of the United States Court o f Appeal s f o r the Ninth Circuit, copies of all relevant briefs and ex cerpts of the record, and an orig inal a nd
ten copies of the request with a certification of service on the parties, pursuant to California Rules of Court 8.548(c), (d).

F urther p roceeding s before us are stay ed p ending the California Supreme Court’s decision r eg arding certification,

a n d i n the event the California Supreme Court accepts certification, pending our r eceipt of the answers to the questions certified. Submission of this case is withdrawn.

After t h e California Supreme Court makes its determination whether to acc e pt certification of these question s , t h e parties shall f ile a joint report informing this
court of the decision. I f t h e California Supreme Court accepts the certified questions, the parties shal l f i l e a joint
status report to o ur court e very six months after th e d ate o f acceptance, or more frequently if circumstances warrant.

I f the California Supre m e C o u r t denies the request for certification, this case will be automatically resubmitted upon notice o f that denial. I f the California Supreme Court accepts the certified question, the case will b e aut omaticallyB E A U C H A M P V

. C I T Y O F L O N G B E A C H 17

r e submitted upon r eceipt of the California Supreme Court’ s answer to the certified question.

SO ORDERED.