Cal.NS FOR DISABILITY RIGHTS v. MERVYN'S LLC., No. A106199.

• Court: California Court of Appeals
• Citation: 81 Cal.Rptr.3d 144,165 Cal.App.4th 571
• Docket Number: No. A106199.
• Decision Date: 29 July 2008
• Parties: CALIFORNIANS FOR DISABILITY RIGHTS, Plaintiff and Appellant, v. MERVYN'S LLC, Defendant and Respondent.

165 Cal.App.4th 571
81 Cal.Rptr.3d 144

CALIFORNIANS FOR DISABILITY RIGHTS, Plaintiff and Appellant,
v.
MERVYN'S LLC, Defendant and Respondent.

No. A106199.

Court of Appeal, First District, Division 4, California.

July 29, 2008.

81 Cal.Rptr.3d 145

COPYRIGHT MATERIAL OMITTED.

81 Cal.Rptr.3d 146

COPYRIGHT MATERIAL OMITTED.

81 Cal.Rptr.3d 147

Rosen, Bien & Asaro, Andrea G. Asaro, San Francisco, Holly M. Baldwin; Zelle, Hofmann, Voelbel, Mason & Gette, Daniel S. Mason, San Francisco; Disability Rights Advocates, Sidney Wolinsky, Oakland, Monica Goracke; The Sturdevant Law Firm, James C. Sturdevant, Monique Olivier, San Francisco; Rosen Bien & Galvan and Sanford J. Rosen, San Francisco, for Plaintiff and Appellant Californians for Disability Rights.

Robinson, Calcagnie & Robinson and Sharon J. Arkin for amicus curiae Consumer Attorneys of California, on behalf of Plaintiff and Respondent.

Chavez & Gertler, Mill Valley, and Nance F. Becker, San Francisco, for California Foundation for amici curiae Independent Living Centers, and American Association of People with Disabilities, on behalf of Plaintiff and Appellant.

Edmund G. Brown Jr., Attorney General, Janet Gaard, Acting Chief Assistant Attorney General, Louis Verdugo Jr., Senior Assistant Attorney General, Angela Sierra, Supervising Deputy Attorney General and Timothy M. Muscat, Deputy Attorney General, for Amici Curiae Attorney General of California, on behalf of Plaintiff and Appellant.

Morrison & Foerster, David F. McDowell, Samantha P. Goodman, Linda E. Shostak, San Francisco, and Gloria Y. Lee, for Defendant and Respondent Mervyn's, LLC.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and David N. Makous, Los Angeles, for ReadyLink HealthCare, Inc., for Amicus Curiae on behalf of Defendant and Respondent.

SEPULVEDA, J.

165 Cal.App.4th 577

An organization representing disabled individuals sued an operator of retail department stores for maintaining narrow pathways between merchandise display racks that block shoppers with wheelchairs and other mobility aids from reaching the merchandise. In a bench trial, the court found that the retailer denied access to disabled individuals but concluded that widening the merchandise pathways to allow access was not legally mandated because wider pathways would cause a significant loss of selling space and profit. The court also found that the retailer provided an adequate alternative method for making its merchandise available to disabled individuals by designing new and remodeled stores to be physically accessible. The court entered judgment for the retailer.

We reverse the judgment. A retailer must remove architectural barriers to access where such removal is “readily achievable” and, if not readily achievable because of great difficulty or expense, must adopt alternative methods for making its merchandise available to disabled

81 Cal.Rptr.3d 148

individuals by the provision of customer assistance or other means. (42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv), (v).) We find sufficient evidence to support the trial court's finding that the removal of barriers to access is not readily achievable in this instance, and thus not legally mandated. However, we conclude that a retailer does not meet its obligation to make its merchandise available to disabled individuals denied access to the retailer's existing stores by constructing new and geographically distant stores that are accessible. Accordingly, we remand the case for consideration of appropriate alternative means for making merchandise available to disabled individuals who are denied physical access.

I. PROCEDURAL BACKGROUND

Appellant Californians for Disability Rights (CDR) is a nonprofit corporation organized to protect the interests of persons with disabilities. On May 21, 2002, CDR filed a lawsuit against respondent Mervyn's, LLC (Mervyn's), a corporation that operates 125 retail department stores throughout the State of

165 Cal.App.4th 578

California. ¹ CDR alleged that Mervyn's denied store access to persons with mobility disabilities by failing to provide adequate pathway space between merchandise displays for wheelchairs and other mobility aids. CDR pleaded a single cause of action for injunctive relief under California's unfair competition law, which defines unfair competition to include any unlawful business act or practice. ( Bus. & Prof.Code, § 17200 et seq. (the UCL).) CDR alleged that Mervyn's practice of denying access to disabled individuals was unlawful because it violated California's Unruh Civil Rights Act ( Civ.Code, § 51 et seq.) and California's Disabled Persons Act ( Civ.Code, § 54 et seq.).

The case proceeded to an 18-day bench trial that began in August 2003. The trial court denied relief to CDR and entered judgment in favor of Mervyn's on February 2, 2004. The trial court found that 15 to 20 percent of Mervyn's merchandise is inaccessible to persons using mobility aids, but concluded that the removal of access barriers was not readily achievable, and thus not legally mandated, because full access would necessitate a significant loss of selling space and profit. The court also concluded that Mervyn's provided an alternative method for making its merchandise available to disabled individuals by designing its new and remodeled stores to be physically accessible. CDR appealed the judgment.

While this case was pending on appeal, the voters of California amended the statute under which the case had been prosecuted. The voters' enactment, popularly known as Proposition 64, was passed in the California General Election on November 2, 2004, and went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) At the time this case was tried, the UCL authorized any person acting for the general public to sue for relief from unfair competition. ( Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 228, 46 Cal.Rptr.3d 57, 138 P.3d 207 ( Mervyn's ).) “Standing to bring such an action did not depend on a showing of injury or damage.” ( Ibid.) Proposition 64 amended the UCL to limit private enforcement to those who have suffered injury in fact and have lost money or property as a result of such unfair competition. ( Ibid.) Proposition 64 did not state whether this new limitation applies to pending cases. ( Id. at p. 229, 46 Cal.Rptr.3d 57, 138 P.3d 207.)

81 Cal.Rptr.3d 149

On December 6, 2004, Mervyn's moved to dismiss this appeal upon the claim that Proposition 64's change in standing requirements apply to pending cases. We denied the motion because new legislative enactments are presumed to operate prospectively, rather than retroactively, to avoid unfair impairment of existing rights and obligations. In July 2006, the California Supreme Court reversed our ruling, upon concluding that application of Proposition 64's standing requirements to pending cases would not constitute

165 Cal.App.4th 579

a retroactive application of the law because the initiative measure did not change any existing rights or obligations. ( Mervyn's, supra, 39 Cal.4th at pp. 232-234, 46 Cal.Rptr.3d 57, 138 P.3d 207.) While the measure “withdraws the standing of persons who have not been harmed to represent those who have,” it did not impair any rights because lack of standing is a jurisdictional challenge that can be raised at any time in a legal proceeding. ( Id. at pp. 232-233, 46 Cal.Rptr.3d 57, 138 P.3d 207.) The high court reversed our denial of Mervyn's motion to dismiss the appeal and remanded the case to us “for further proceedings consistent” with its opinion. ( Id. at p. 234, 46 Cal.Rptr.3d 57, 138 P.3d 207.)

On remand to this court, CDR asked leave to move for substitution of plaintiff on appeal-it did not contend that it had standing to appeal in its own right as a party aggrieved by the judgment under Code of Civil Procedure section 902. We denied CDR's request and granted Mervyn's motion to dismiss the appeal for lack of standing by CDR. CDR petitioned for review in the Supreme Court. The Supreme Court granted review and transferred the case to us with directions to vacate our decision and to reconsider the cause in light of United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 23 Cal.Rptr.3d 387 ( United Investors ) and Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 46 Cal.Rptr.3d 66, 138 P.3d 214 ( Branick ).

United Investors held that a plaintiff has standing to appeal dismissal of a UCL complaint following demurrer even if it has no authority to maintain its suit in superior court, because plaintiff “is sufficiently aggrieved by the dismissal of its complaint that it has standing to appeal under Code of Civil Procedure section 902.” ( United Investors, supra, 125 Cal.App.4th at p. 1305, 23 Cal.Rptr.3d 387.) Branick held that Proposition 64 does not forbid amendment of complaints in the trial court to substitute new plaintiffs for those who have lost standing under the new measure. ( Branick, supra, 39 Cal.4th at pp. 241-242, 46 Cal.Rptr.3d 66, 138 P.3d 214.) The “ordinary rules governing the amendment of complaints” apply. ( Id. at p. 239, 46 Cal.Rptr.3d 66, 138 P.3d 214.)

Upon reconsideration, we denied Mervyn's motion to dismiss the appeal in a ruling we issued on April 17, 2007. We concluded that the two cases referenced by the high court, “when read in conjunction, lead to the following conclusion: CDR is a party aggrieved by entry of judgment against it and thus has standing to appeal the judgment even if CDR has no authority to maintain its suit in superior court ( United Investors, supra, 125 Cal.App.4th at pp. 1304-1305, 23 Cal.Rptr.3d 387); and, if CDR succeeds in its effort to reverse the judgment on appeal, it may seek leave in the superior court to amend its complaint to substitute a plaintiff who meets the Proposition 64 standing requirement.” ( Branick, supra, 39 Cal.4th at pp. 240-244, 46 Cal.Rptr.3d 66, 138 P.3d 214.) Mervyn's petitioned for review in the Supreme Court, and the...