FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY BEAUCHAMP,

Plaintiff-Appellant,

v.

CITY OF LONG BEACH,

Defendant-Appellee.

No. 11-55780

D.C. No.

2:10-cv-01270-RGK-JC

ORDER CERTIFYING

DETERMINATIVE

QUESTIONS OF LAW

TO THE CALIFORNIA

SUPREME COURT

Filed September 17, 2013

Before: Consuelo M. Callahan, Sandra S. Ikuta, and

Andrew D. Hurwitz, Circuit Judges.
2 BEAUCHAMP V. CITY OF LONG BEACH

SUMMARY*

Certification of Questions to State Supreme Court

The panel filed an order certifying to the California

Supreme Court determinative questions of law regarding 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 Persons Act,

Cal. Civ. Code §§ 54, 54.1, is liable for actual damages for

“each offense . . . but in no case less than one thousand

dollars ($1,000).” Does the phrase “each offense” refer to

each occasion when a plaintiff encounters a barrier that

denies the plaintiff full and equal access to a public facility,

or should a trial court construe “each offense” more narrowly,

particularly in situations where a plaintiff repeatedly

encounters the same barrier? If the phrase “each offense” is

not susceptible to a narrower construction, under what

circumstances would the penalty scheme in section 54.3

violate the due process clause of the state constitution?

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BEAUCHAMP V. CITY OF LONG BEACH 3

ORDER

We respectfully request that the Supreme Court of

California exercise its discretion to decide the certified

questions set forth in Part II of this order.

I

Caption and Counsel

A. The caption of the case is:

No. 11-55780

LARRY BEAUCHAMP

Plaintiff-Appellant

v.

CITY OF LONG BEACH

Defendant-Appellee

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

For Plaintiff-Appellant:

Jeff A. Harrison, Barbosa, Metz & Harrison, LLP

139 Richmond Street, El Segundo, CA 90245

For Defendant-Appellee:

Monte H. Machit, Principal Deputy City Attorney

Office of the Long Beach City Attorney

333 West Ocean Blvd., 11th Floor

Long Beach, CA 90802
4 BEAUCHAMP V. CITY OF LONG BEACH

Timothy T. Coates and Lillie Hsu

Greines, Martin, Stein & Richland, LLP

5900 Wilshire Blvd., 12th Floor

Los Angeles, CA 90036

C. Designation of party to be deemed petitioner: PlaintiffAppellant

II

Question Certified

Pursuant to Rule 8.548 of the California Rules of Court,

a panel of the United States Court of Appeals for the Ninth

Circuit, before which this appeal is pending, requests that the

Supreme Court of California answer the question presented

below. This court will accept the California Supreme Court’s

decision on this question. Our phrasing of the question is not

intended to restrict the California Supreme Court’s

consideration of the case. The question certified is as

follows.

Section 54.3(a) of the California Civil Code

provides that a person who violates the

CaliforniaDisabledPersons Act (CDPA), Cal.

Civ. Code §§ 54, 54.1, is liable for actual

damages for “each offense . . . but in no case

less than one thousand dollars ($1,000).”1

 

1

 Cal. Civ. Code § 54.3(a) provides, in relevant part:

Any person or persons, firm or corporation who denies

or interferes with admittance to or enjoyment of the

public facilities as specified in Sections 54 and 54.1 or
BEAUCHAMP V. CITY OF LONG BEACH 5

Does the phrase “each offense” refer to each

occasion when a plaintiff encounters a barrier

that denies the plaintiff full and equal access

to a public facility, or should a trial court

construe “each offense” more narrowly,

particularly in situations where a plaintiff

repeatedly encounters the same barrier? If the

phrase “each offense” is not susceptible to a

narrower construction, under what

circumstances would the penalty scheme in

section 54.3 violate the due process clause of

the state constitution?

III

Statement of Facts

Larry Beauchamp, a resident of Long Beach and a

quadriplegic, sued the City of Long Beach on February 19,

2010, for maintaining inaccessible sidewalks, curbs, and curb

ramps in violation of sections 51, 54, 54.1, and 54.3 of the

California Civil Code (among other claims). The district

court determined that Beauchamp was a “qualified individual

with a disability” for purposes of the CDPA, that the City’s

otherwise interferes with the rights of an individual

with a disability under Sections 54, 54.1 and 54.2 is

liable for each offense for the actual damages and any

amount as may be determined by a jury, or the court

sitting without a jury, up to a maximum of three times

the amount of actual damages but in no case less than

one thousand dollars ($1,000), and attorney’s fees as

may be determined by the court in addition thereto,

suffered by any person denied any of the rights

provided in Sections 54, 54.1, and 54.2.
6 BEAUCHAMP V. CITY OF LONG BEACH

streets and sidewalks constituted “public facilities,” for

purposes of section 54(a) of the California Civil Code, and

that certain barriers Beauchamp encountered on the City’s

streets and sidewalks denied him full and equal access to such

public facilities. Accordingly, the district court concluded

that Beauchamp was entitled to statutory damages 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 Beauchamp established that he

was denied access by barriers at two specific locations and

inconvenienced, if not also denied access, by barriers at two

others. It made the following findings of fact:

11. Once per month within the relevant

statutory period, Plaintiff attempted to use the

curb ramp and sidewalk segments near the

Pizza Hut located at the intersection of Market

Street and Orange Avenue. Plaintiff was

denied access because the intersection lacked

one curb cut, had three noncompliant curb

cuts, and had raised sidewalk segments due to

tree roots.

12. Four times a week within the relevant

statutory period, Plaintiff attempted to use the

curb ramp and sidewalk segments near the bus

stop at the intersection of Atlantic Avenue and

51st Street, which is located near his

residence. Plaintiff was denied access

2 The district court concluded that the relevant limitations period was the

two year period before his action was filed on February 19, 2010.
BEAUCHAMP V. CITY OF LONG BEACH 7

because the intersection had three

noncompliant curb cuts.

13. Within the relevant statutory period,

Plaintiff frequently attempted to use South

Street between Atlantic Avenue and Cherry

Avenue, but had to travel in the street due to

barriers in the sidewalk segments or a lack of

curb cuts.

14. Within the relevant statutory period,

Plaintiff frequently attempted to use Atlantic

Avenue between South Street and 36th Street,

but had to travel in the street due to barriers in

the sidewalk segments or a lack of curb cuts.

On the basis ofthese findings, the court concluded as follows:

The Court finds that Plaintiff is entitled to

$5,000 for each of the two barriers that

Plaintiff frequently encountered near his

home, identified in paragraphs 13 and 14 of

the Findings of Fact above. Additionally,

Plaintiff is entitled to $7,000 for the two

barriers identified in paragraphs 11 and 12 of

the Findings of Fact above. Thus in total, the

Court awards Plaintiff $17,000 in statutory

damages.

The district court did not explain how it calculated these

damages or how it identified what constituted an “offense”

for purposes of section 54.3.
8 BEAUCHAMP V. CITY OF LONG BEACH

Beauchamp timely appealed the district court’s damage

award, claiming he was entitled to $440,000 in statutory

damages because the district court found that he had

encountered barriers that denied him access on 440 distinct

occasions. The City argues that the district court could

exercise its discretion to aggregate repeated encounters with

the same barrier in order to ensure that damages under section

54.3 remain reasonable and commensurate with the

defendant’s culpability.

IV

Explanation of Our Request

We seek the California Supreme Court’s determination as

to the proper construction of “offense” for purposes of section

54.3, and specifically, whether multiple incidents of denials

of access due to encounters with the same barrier can

constitute a single “offense.” We ask for this assistance

because the meaning of “each offense” in the context of this

case is especially ambiguous and will have a significant

impact on these and similarly-situated parties, and there is

insufficient guidance in the relevant statutes and case law to

allow us to resolve this question.

A

Although no California court has yet construed the phrase

“each offense” in section 54.3, the language and structure of

the CDPA indicates that each violation of a disabled

individual’s right “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 damages.
BEAUCHAMP V. CITY OF LONG BEACH 9

Section 54.1 of the California Civil Code sets out a right

or entitlement: It provides that “[i]ndividuals with disabilities

shall be entitled to full and equal access” to public facilities. 

Section 54.3 of the California Civil Code states that persons,

firms, or corporations that deny or interfere “with admittance

to or enjoyment of the public facilities . . . or otherwise

interfere[] with the rights of an individual with a disability”

are liable for “each offense for the actual damages and any

amount as may be determined by the jury, or the court sitting

without a jury, up to a maximum amount of three times the

amount of actual damages but in no case less than one

thousand dollars.” Although the word “offense” is not

defined in the CDPA, the structure of this section suggests

that each denial or interference with access constitutes an

“offense.”

However, section 54.3 must be interpreted in light of

section 55.56 of the California Civil Code,3 which limited the

 

3

 Sections 55.56(a), (b) and (e) state, in relevant part:

(a) Statutory damages under either subdivision (a) of

Section 52 or subdivision (a) of Section 54.3 may be

recovered in a construction-related accessibility claim

against a place of public accommodation only if a

violation or violations of one or more

construction-related accessibility standards denied the

plaintiff full and equal access to the place of public

accommodation on a particular occasion.

(b) A plaintiff is denied full and equal access only if the

plaintiff personally encountered the violation on a

particular occasion, or the plaintiff was deterred from

accessing a place of public accommodation on a

particular occasion.
10 BEAUCHAMP V. CITY OF LONG BEACH

damages available under section 54.3 for certain types of

claims. Relevant here, section 55.56 provided that statutory

damages under section 54.3(a) could be recovered only if a

plaintiff personally encountered a barrier that denied the

plaintiff full and equal access, or was personally deterred

from accessing a place of public accommodation on a

particular occasion. Cal. Civ. Code § 55.56(b). It also

provided that courts could not assess damages based on the

number of violations that were identified at a particular

location, but only for “each particular occasion that a plaintiff

was denied full and equal access.” Id. § 55.56(e). These

restrictions suggest that the Legislature intended to prevent

plaintiffs from recovering damages for multiple

nonconforming barriers in a public facility if the plaintiff did

not actually encounter such barriers. This language therefore

raises the negative inference that where a plaintiff is denied

full and equal access by barriers the plaintiff personally

encounters, the plaintiff is entitled to $1,000 per each such

denial of access.

(e) Statutory damages may be assessed pursuant to

subdivision (a) based on each particular occasion that

the plaintiff was denied full and equal access, and not

upon the number of violations of construction-related

accessibility standards identified at the place of public

accommodation where the denial of full and equal

access occurred. If the place of public accommodation

consists of distinct facilities that offer distinct services,

statutory damages may be assessed based on each

denial of full and equal access to the distinct facility,

and not upon the number of violations of

construction-related accessibilitystandards identified at

the place of public accommodation where the denial of

full and equal access occurred.
BEAUCHAMP V. CITY OF LONG BEACH 11

B

Although we believe it is reasonable to construe section

54.3 as requiring courts to impose $1,000 per each denial of

access, the California Supreme Court and state appellate

courts have suggested that penalty schemes such as those

embodied in section 54.3 are to be construed narrowly.

As a general rule, the California Supreme Court has

looked “with disfavor on ever-mounting penalties” and has

“narrowly construed the statutes which either require or

permit them.” Hale v. Morgan, 22 Cal. 3d 388, 401 (1978). 

In People ex rel. Younger v. Superior Court, 16 Cal. 3d 30

(1976), for instance, the Court considered a statute imposing

a $6,000 per day fine for each day a defendant “‘causes or

permits any oil . . . to be deposited in or on any of the waters

of the state.’” Id. at 43. To ensure that the penalties

corresponded with the defendant’s culpability, the court

applied a narrowing construction 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 People 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 holding that a “violation” should be

based on “the number of persons to whom misrepresentations

were made,” rather than on “the number of separately

identifiable misrepresentations involved”).

Following the California Supreme Court’s lead, state

appellate courts have likewise narrowly construed statutes

that impose penalties “per violation” or “per offense” where

appropriate. In interpreting a statute imposing a statutory

penalty of $2,500 for “each violation” of regulations relating
12 BEAUCHAMP V. CITY OF LONG BEACH

to nursing homes, for instance, a state appellate court held

that a trial court had discretion to construe “violation”

differently depending on the particular facts of the case. See

People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.

App. 3d 509, 535 (1984), abrogated on other grounds by CalTech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th

163 (1999). The court reasoned that “to interpret the words

‘each violation’ to authorize a $2,500 sanction for each and

every failure . . . would result in an unreasonable or

oppressive statutory penalty,” while on the other hand, “to

take all violations constituting evidence of a business practice

in violation of a particular rule or regulation and count them

as only one violation would be equally unreasonable.” Id. at

534–35 (citing Hale, 22 Cal. 3d at 399). Therefore, the court

concluded, a trial court should use a circumstances-based

analysis to determine what penalties were justified based on

the defendants’ conduct. Id.; see also Hewlett v. Squaw

Valley Ski Corp., 54 Cal. App. 4th 499, 536–37 (1997)

(holding that a trial court had discretion to construe an unfair

competition statute, which imposed a minimum of $2,500

penalty for “each violation,” as allowing it to impose

damages based on separate instances of wrongful tree

harvesting rather than the number of trees removed).

We further note that when a penalty scheme set forth in

a state statute is not susceptible to a narrowing construction,

the California Supreme Court has considered whether the

imposition of mandatory, ever-mounting penalties violates

the due process clause of the state and federal constitutions in

a particular case. See Hale, 22 Cal. 3d at 403–04 (holding

that although a mandatory $100-per-day penalty scheme was

not necessarily facially unconstitutional, the imposition of a

$17,300 penalty under the statute was constitutionally

excessive in that case, given the defendant’s lesser culpability
BEAUCHAMP V. CITY OF LONG BEACH 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 case-by-case

basis. See Kinney v. Vaccari, 27 Cal. 3d 348, 353, 356 (1980)

(upholding a $36,000 penalty under section 789.3 of the

California Civil Code because it was “proportioned to the

landlord’s misconduct and necessary to achieve the penalty’s

deterrent purposes”); see also City and County of San

Francisco v. Sainez, 77 Cal. App. 4th 1302, 1312–16 (2000)

(conducting an “as applied” analysis to decide whether a

statute authorizing a $1,000 per day penalty for violations of

the Housing Code violated due process, and concluding that

the trial court did not abuse its discretion in imposing a

$663,000 penalty because it was not “impermissibly

disproportionate ‘to the conduct’ or to the defendants’ ‘net

worth’”).

In sum, we read California cases to suggest that where a

statute allows for the imposition of ever-mounting penalties,

a trial court should first consider whether the statute is

susceptible to a narrowing construction in a particular case. 

Cf. People v. Toomey, 157 Cal. App. 3d 1, 22 (1984)

(explaining that where a statute “fails to specify what

constitutes a single violation,” the courts should “determine

appropriate penalties on a case-by-case basis”). Furthermore,

if a statute is not susceptible to a narrowing construction, it

appears the trial court should consider whether the application

of the penalty provision is constitutionally excessive as

applied under the due process clause of the state and federal

constitutions. Hale, 22 Cal. 3d at 404.
14 BEAUCHAMP V. CITY OF LONG BEACH

C

In light of our review, we are uncertain about how to

construe “each offense” in section 54.3 in a situation where

a plaintiff has encountered the same barrier on multiple

occasions. Indeed, at least one district court that encountered

this precise question declined to address the issue in the

absence of any guidance from California courts. See

Grutman v. Regents of Univ. of Cal., 807 F. Supp. 2d 861,

870 (N.D. Cal. 2011) (declining to exercise supplemental

jurisdiction over the question whether plaintiff was entitled to

recover for each occasion that she encountered the noncompliant front door in her dormitory, and noting that

plaintiff’s interpretation of “each offense” would result in a

$2 million damage award, while defendant’s interpretation

would “allow for an award of only a nominal $4,000”).

Because section 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 barrier, particularly

where a California court has stated that “[n]ot every denial of

‘full and equal access’ under section 54.1 . . . gives rise to a

cause of action for damages under section 54.3.” Urhausen

v. Longs Drug Stores Cal., Inc., 155 Cal. App. 4th 254, 265

(2007). Given that section 54.3 imposes mandatory, evermounting penalties, the cases reviewed above suggest that

California courts may have the discretion to construe section

54.3 narrowly in an appropriate case. For instance, a trial

court could plausibly define “each offense” to mean each

barrier personally encountered by the plaintiff, rather than

each occasion when the plaintiff encountered that barrier. Cf.

Jayhill Corp., 9 Cal. 3d at 289.
BEAUCHAMP V. CITY OF LONG BEACH 15

Moreover, if such an interpretation of “each offense”

were not permissible (for example, because the California

Legislature’s enactment of section 55.56 indicated that it did

not intend any such limitation), then Hale suggests trial

courts would still be required to determine whether imposing

a $1,000 penalty for “each offense” would be excessive under

the state constitution. It is not clear how the California

Supreme Court would analyze the situation in this case: on

the one hand, Beauchamp continued to travel the same routes

knowing there were barriers that denied him access; on the

other hand, after 17 years, the City has still failed to remove

the barriers in the sidewalks in his neighborhood. The

California cases we have reviewed do not provide clear

guidance on how to weigh, under California law, the need for

compliance with the desire to avoid awarding windfalls to

plaintiffs in the CDPA context generally, much less in the

specific situation where a plaintiff repeatedly encounters the

same non-compliant barriers.

D

In sum, as we read California law, we do not know

whether the district court in this case was required to construe

section 54.3 as awarding damages for each of Beauchamp’s

440 encounters with a barrier that denied him access, had the

discretion to apply some narrowing construction, or could

reduce the award to avoid due process concerns. The

consequences of taking any of these approaches will have a

significant impact on both the fisc of public entities and the

ability of disabled individuals to enforce their rights. We

therefore submit that this question is worthy of a decision by

the California Supreme Court, and that this case presents a

suitable vehicle for the California Supreme Court to address

this question. See Cal. Rules of Court 8.548(a). The answer
16 BEAUCHAMP V. CITY OF LONG BEACH

given by the California Supreme Court will dispose of this

appeal currently pending before the Ninth Circuit, as well as

guide the decisions in the other federal cases applying

California law.

V

Accompanying Materials

The clerk of this court is hereby directed to file in the

California Supreme Court, under official seal of the United

States Court of Appeals for the Ninth Circuit, copies of all

relevant briefs and excerpts of the record, and an original and

ten copies of the request with a certification of service on the

parties, pursuant to California Rules of Court 8.548(c), (d).

Further proceedings before us are stayed pending the

California Supreme Court’s decision regarding certification,

and in the event the California Supreme Court accepts

certification, pending our receipt of the answers to the

questions certified. Submission of this case is withdrawn.

After the California Supreme Court makes its

determination whether to accept certification of these

questions, the parties shall file a joint report informing this

court of the decision. If the California Supreme Court

accepts the certified questions, the parties shall file a joint

status report to our court every six months after the date of

acceptance, or more frequently if circumstances warrant.

If the California Supreme Court denies the request for

certification, this case will be automatically resubmitted upon

notice of that denial. If the California Supreme Court accepts

the certified question, the case will be automatically
BEAUCHAMP V. CITY OF LONG BEACH 17

resubmitted upon receipt of the California Supreme Court’s

answer to the certified question.

SO ORDERED.