Unintentional discrimination yields unexpected windfall: Disability access litigants can recover minimum statutory damages in California without proving discriminatory intent
In Munson v. Del Taco, Inc., No. S162818, 2009 Cal. LEXIS 5183 (Cal. June 11, 2009), the court settled two questions of California law submitted at the request of the United States Court of Appeals for the Ninth Circuit:
- Must a plaintiff who seeks damages under California Civil Code, Section 52, claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Civil Rights Act (Civ. Code, § 51) and the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), prove “intentional discrimination”?
- If the answer to Question 1 is “yes,” what does “intentional discrimination” mean in this context?
Adopting the holding in Lentini v. California Center for the Arts, 370 F.3d 837 (9th Cir. 2004), and overruling Gunther v. Lin, 144 Cal.App.4th 223 (2006), the California high court unequivocally and unanimously rejected the argument that the Unruh Act requires a disability access plaintiff to prove anything beyond a simple violation of the ADA—which includes the failure to remove architectural barriers where readily achievable—to trigger the $4,000 minimum statutory damages, plus attorneys’ fees, allowed under Section 52 of the Unruh Act.
The facts in Del Taco echo those common to most disability access cases: Plaintiff Kenneth Munson, who uses a wheelchair for mobility, allegedly encountered certain access barriers during a visit to a Del Taco restaurant. Munson specifically complained that the doorway to the restaurant’s restroom was too narrow to allow for wheelchair passage, that the restroom itself was not adequately designed for a wheelchair user, and that the entrance of the restaurant lacked a level landing. Munson claimed that such barriers denied him legally required access to the facility, in violation of both the ADA and the Unruh Act, and asserted a right to statutory damages accordingly.
The District Court, on cross-motions, granted partial summary judgment in Munson’s favor. The court found no genuine issue of material fact either as to the existence of the architectural barriers or as to whether the widening of the restroom doorway was readily achievable. The court thus concluded that Munson was entitled to statutory damages under the Unruh Act.
Del Taco appealed on the basis that Munson had not put forth any evidence that Del Taco had intentionally discriminated against him. In response, Munson denied that the Unruh Act required him to prove an intent to discriminate (i.e., that the barriers were the result of Del Taco’s animus against people with disabilities). Munson asserted alternatively that the restaurant’s failure to remove access barriers where readily achievable satisfied any intent requirement in the statute.
The California Supreme Court granted the Ninth Circuit’s request to resolve the “intent” issue as a matter of California law.
The Unruh Civil Rights Act and the Americans with Disabilities Act
Title III of the Americans with Disabilities Act prohibits, among other things, the “failure to remove architectural barriers … in existing facilities … where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). “Readily achievable,” in this context, means “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12101(a)(5). Since 1990, therefore, the ADA has obligated places of public accommodation to bring existing facilities into compliance with the accessibility design and construction standards known as the ADA Accessibility Guidelines (ADAAG) (28 C.F.R. part 36, Appx. A) to remedy the discriminatory effects of architectural access barriers, at least to the extent the modifications can be done relatively easily and inexpensively.
The ADA does not itself confer a private right of action for damages arising from a public accommodation’s failure to remove readily achievable disability access barriers, however. That right exists under the Unruh Act, which was amended in 1992 to provide additional redress for any violations of the ADA. Civ. Code § 51, subd. (f). The Unruh Act’s remedies are found in Section 52, which provides: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 … is liable for each and every offense for the actual damages … up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51[.]” Civ. Code § 52.
Del Taco resolved the open question arising from the Unruh Act’s intersection with the ADA by allowing an aggrieved plaintiff to recover damages by relying solely upon a public accommodation’s failure to remove readily achievable access barriers, without any additional showing of discriminatory intent. Consequently, an Unruh Act plaintiff’s right to monetary relief and fees attaches equally to irresponsible business owners and operators who have spurned their accessibility obligations, as well as to those who tried in good faith to bring their facilities into compliance but failed in some minor respect. Indeed, such technical oversights, given the ADAAG’s comprehensive reach (governing everything from door clearances and ramp slopes to the wall placement of toilet paper dispensers and restroom mirrors), are not only common but virtually certain to occur. What is now also certain is that those oversights will come at a minimum cost of $4,000 plus attorneys’ fees.
SB 1608: A new hope?
The California Supreme Court was not unmindful of or unsympathetic to the real-world impact of its holding on what the defendant charitably characterized as “an already troubled legal area.” Numerous state and federal courts, like the Del Taco court itself, have acknowledged the cottage industry of abusive litigation brought by serial plaintiffs or attorneys pursuing financial gain by exacting settlements from small (and not-so-small) businesses. The Del Taco court’s response to such concerns, however, was to leave the California legislature to strike the balance between protecting businesses against extortionate litigation and the act’s laudable goal of using private enforcement to achieve greater accessibility.
In that regard, the Del Taco court highlighted California’s 2008 enactment of Senate Bill No. 1608 (SB 1608), which amended the Civil Code to tackle “the challenge of improving compliance with access laws while protecting businesses from abusive access litigation.” Although the legislature had rejected proposals that would have required accessibility plaintiffs to provide pre-litigation notices of and an opportunity for businesses to cure alleged access violations, SB 1608 did add:
- A requirement that any attorney serving a complaint or sending a monetary demand for a construction-related accessibility claim must include a notice informing the recipient, among other things, that he or she is not required to pay any money until found liable by a court and may have a right to have the action stayed, pending an early evaluation conference (§ 55.3);
- Procedures for voluntary inspection of a property by a certified access specialist (§ 55.53);
- If a certified access specialist has already inspected the property, procedures to stay actions raising construction-related accessibility claims for 90 (or, if extended, up to 180) days in order to allow the plaintiff to provide details of the claims, damages, and attorney fees incurred, and to allow the court to hold an early evaluation conference during the stay to assess the site’s current condition, progress toward correcting any alleged violations, settlement possibilities, and any further sharing of information between the parties (§ 55.54); and
- Provisions for the court to consider written settlement offers made and rejected when determining the amount of reasonable attorney fees on a construction-related accessibility claim (§ 55.55).
SB 1608 also restricts the availability of statutory damages in Unruh Act/California Disabled Persons Act cases filed in 2009 or later to situations in which 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” (§ 55.56, subd. (b)). Statutory damages are also limited to one assessment per occasion of access denial, not the number of accessibility standards violated. (§ 55.56, subd. (e).)
Disability access litigation post–Del Taco
The Del Taco decision powerfully reinforces the need for businesses to ensure equal access to all members of the public by actively pursuing readily achievable barrier removal. SB 1608’s legislative compromise to protect businesses from litigation abuses, though imperfect, will prove entirely ineffectual if access inspections and other compliance efforts are not voluntarily undertaken. And, with the newfound allure of an assured damages floor of $4,000 plus attorneys’ fees, the potential escalation of access claims in the wake of Del Taco makes continued noncompliance a risky and costly gamble in already-challenging economic times.