Donald v. Cafe Royale, Inc.

Decision Date23 February 1990
Docket NumberNo. A040139,A040139
Citation218 Cal.App.3d 168,266 Cal.Rptr. 804
CourtCalifornia Court of Appeals Court of Appeals
PartiesJames DONALD, Plaintiff and Appellant, v. CAFE ROYALE, INC., Defendant and Respondent.

Paul L. Rein, Oakland, Bryce C. Anderson, Concord, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Supervising Deputy Atty. Gen., Kathleen W. Mikkelson, Deputy Atty. Gen., Louise Renne, City

Atty. of San Francisco, Elaine Warren, Deputy City Atty., Arlo Smith, Dist. Atty. of San Francisco, Robert H. Perez, Asst. Dist. Atty., San Francisco, for amici curiae on behalf of plaintiff and appellant.

Michael S. Pecherer, Orinda, for defendant and respondent.

MERRILL, Associate Justice.

The long-standing policy of our state has been to permit our physically disabled persons the "same right as the able-bodied to the full and free use of the streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places." (CIV.CODE, § 54. )1 Within the statutory scheme for enforcement of this right to equal access, our State Legislature has enacted statutes authorizing individuals to bring private actions for damages and injunctive relief against noncomplying entities. (See §§ 54.3, 55.) James Donald, a quadriplegic confined to a wheelchair, brought such an action against respondent Cafe Royale, Inc., (Cafe Royale) on the grounds that the San Francisco restaurant operated by this corporation had not complied with the pertinent access statutes and had denied him equal access. The trial court entered judgment for Cafe Royale on the basis that even if there was a lack of compliance with these access statutes, it was not established that the violation was "willful and intentional." Injunctive relief was denied for the reason that during the course of this litigation Cafe Royale became insolvent and was no longer in business. Cafe Royale was awarded attorney fees and costs as the prevailing party on the cause of action for injunctive relief. Donald appeals.


In his lift-equipped van, on December 11, 1984, Donald drove from Sacramento and picked up his companion, Marivic Mabanag, at San Francisco's City Hall. Donald, an attorney, is a former deputy attorney general and former member of the Attorney General's task force on disability and former deputy director of the State Department of Rehabilitation. At the time of trial Donald was the United States representative to Disabled Peoples International and the chairman of its Human Rights Committee. Donald was acquainted with Mabanag because of her position with the mayor's office concerning agency funding for compliance with handicap access laws.

After meeting Mabanag, Donald drove to the Cafe Royale restaurant. While there was conflicting testimony as to their purpose in going to the restaurant, the trial court found they intended to inspect the premises for accessibility.

There is no dispute in the record that the Cafe Royale had been constructed on three levels. The entry level contained the bar, the piano, raised stools at raised tables and four or five nonraised tables. The main dining area was located on two raised tiers, the first level being 18 inches above the entry level and the second level being 18 inches above the first. These two tiers were accessible only by stairs.

The evidence showed that the only dining area with seats accessible to persons confined to wheelchairs was an area adjacent to the bar. This area was designed to hold six tables, seating a total of 26 people. The total capacity of the restaurant was 100 dining seats and 35 bar stools. On the evening Donald and Mabanag went to the restaurant four, and possibly five, nonraised tables were wheelchair-accessible in the area adjacent to the bar. The assistant manager, Cap Lingo, testified these tables were not generally used for dining, unless a patron requested to sit in this area. Raymond Bohm, the general manager, testified that the few tables which were handicapped-accessible were sometimes used on the weekends as an "overflow" area from the main dining area or as a dining area for patrons who specifically requested it. Otherwise, the raised tiers constituted the dining area for nonhandicapped persons and the lower level was the dining area for handicapped persons.

The trial court found that, upon entering the restaurant, Donald asked Lingo what would happen if they wanted to dine there that evening. Lingo replied that they could be accommodated. He was referring to the four or five nonraised tables in the lounge area, next to the piano. Mabanag testified that she did not observe anyone dining in this area of the restaurant and that it appeared to her to be the bar. Donald asked how a group of persons confined to wheelchairs could be accommodated and Lingo replied that if he made a reservation the group could be accommodated. When Donald asked if the tables on the raised tiers were the only tables for dining another Cafe Royale employee replied that they were but that it would be no problem as Donald could be lifted up the stairs. Donald testified that he declined the offer to be lifted because of the danger he might be dropped and because of the attention he would attract. Donald and Mabanag made a further inspection as to wheelchair accessibility of the restrooms and telephone, and then departed without dining.

Malcolm Morrison, the architect for the Cafe Royale, stated that he merely used the designs created by the corporate president, Sam Duvall, in obtaining the building permits. Although Morrison was aware generally of handicap access requirements, he wanted to know how San Francisco's Building Department was interpreting the relevant statutes and codes so he consulted with an employee of that department. Morrison testified that in an "over the counter" discussion with an unidentified employee of the Building Department, he was informed that 25 percent handicap seating accessibility was all that was needed for compliance.

In fact, Government Code section 4450 et seq. 2 requires that facilities conform to building standards published in the State Building Standards Code relating to access for the physically handicapped. The code provides that all floors of a restaurant be on a common level or connected by ramps or elevators. Under a hardship exception, the code will permit a configuration whereby only 75 percent of the dining area need be handicap accessible. (Cal.Code Regs., 3 title 24, § 2-522(e).) It was undisputed, however, that Cafe Royale had never made a hardship request and, in any event, had far less than 75 percent accessibility.

All parties agreed that Cafe Royale's seating capacity was in violation of the handicap access requirements. In closing argument, counsel for Cafe Royale stated: "[W]e have never questioned that the restaurant was out of compliance. We have never questioned that at all. The position of the defense has been that we believed in good faith that it was in compliance."


Donald's complaint contains three causes of action. The first alleges the construction, alteration and maintenance of facilities by Cafe Royale in violation of Health and Safety Code section 19955 et seq. 4 and Cafe Royale's failure to correct these unauthorized deviations within 90 days of receiving notice from Donald pursuant to Government Code section 4452; the second claims Donald was denied equal access to the facilities in violation of section 54 et seq.; and the third seeks injunctive relief under section 55.

A court trial was conducted and judgment was entered against Donald on all three causes of action. In its statement of decision, the trial court found that after being informed by Donald of its noncompliance, Cafe Royale consulted in good faith with the San Francisco Building Department to determine whether or not the accessibility requirements had been met. The Building Department concluded that the premises failed to comply with the accessibility requirements and discussed compliance with Cafe Royale by the means of ramps, lifts, and reconstruction. The trial court agreed with the position of Cafe Royale that in order to bring the restaurant into compliance, seating would be reduced and the restaurant would not be able to operate profitably. In November 1985, after Donald filed his complaint and Cafe Royale answered, the Building Department informed Cafe Royale that failure to take steps voluntarily to correct the violations would result in abatement proceedings. Cafe Royale became insolvent, surrendered its lease and stopped operation by January 31, 1986. The court found that Cafe Royale's decision to go out of business rather than to proceed with efforts to bring the restaurant into compliance was a reasonable business decision.

The trial court determined Donald failed to prove actual damages in respect to any cause of action. As to the second cause of action the court ruled that the denial or interference with admittance to or enjoyment of the facilities pursuant to section 54.3 must be intentional and willful, and that this was not established by the evidence. The court found that during the remodeling of the restaurant, Cafe Royale maintained an honest and good faith belief that the premises were in compliance.

As to the injunction cause of action, the court determined "it would be an idle act to invoke such a remedy against [a] defendant that is insolvent, no longer in business and dissolved as a corporation."


By his second cause of action, under section 54 et seq., Donald asserted he was damaged by Cafe Royale's denial of equal access. He sought actual and punitive damages as well as attorney fees. The trial court denied recovery on this claim despite its finding of Cafe Royale's noncompliance with the access requirements, i.e., section 19955 et seq., section...

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