Gunther v. Lin

Decision Date26 October 2006
Docket NumberNo. G036042.,G036042.
Citation144 Cal.App.4th 223,50 Cal.Rptr.3d 317
CourtCalifornia Court of Appeals Court of Appeals
PartiesDavid GUNTHER, Plaintiff and Appellant, v. John LIN, Defendant and Respondent.

Law Offices of Morse Mehrban and Morse Mehrban for Plaintiff and Appellant.

Mohajerian Law Corporation and Al Mohajerian, Los Angeles, for the Defendant and Respondent.




In 1991—and the year is important as we shall later explain—our Supreme Court issued its opinion in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873, which, among other things, judicially construed the triggering language of section 52 of the Civil Code. Strictly speaking, section 52 is not part of California's Unruh Civil Rights Act, which by its terms refers only to section 51 of the Civil Code (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 757, 120 Cal.Rptr.2d 550 ["By its own terms, the Unruh Civil Rights Act comprises only section 51."]), though it provides for certain remedies for discrimination in violation of the Unruh Civil Rights Act.

According to the state Supreme Court, the language in section 52 "reveals a desire to punish intentional and morally offensive conduct." (Harris, supra, 52 Cal.3d at p. 1172, 278 Cal.Rptr. 614, 805 P.2d 873.)1 The Harris court thus rejected an interpretation of section 522 that would have applied section 52 to a policy of landlords (requiring minimum incomes of three times a month's rent) that assertedly had a disparate impact on women, even though the landlords had no intent to discriminate against women. (See Harris, supra, 52 Cal.3d at pp. 1170-1175, 278 Cal.Rptr. 614, 805 P.2d 873; see particularly p. 1175 ["In summary, we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims."].)

More than one year later, in 1992, Governor Wilson signed legislation (known as AB 1077) which added this language to section 51: "A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section," that is, section 51. (These words would later be recodified as subdivision (f) of section 51, which is how, for reader convenience, we will refer to them in this opinion.)

The new legislation did not change the language in section 52 which the Harris case had interpreted. (And, to get ahead of ourselves for moment, as we explain below, a review of the legislative history of the 1992 legislation reveals no intention to change the Harris decision).

The Americans with Disabilities Act of 1990, commonly known as the ADA, contains provisions which, of course, prevent intentional discrimination against disabled individuals and provides for compensatory awards for such discrimination. (See, e.g., 42 U.S.C. § 12112(a) [employers may not "discriminate against a qualified individual with a disability"]; Buie v. Quad/Graphics, Inc. (7th Cir.2004) 366 F.3d 496, 503 [noting possibility of proving discrimination by either "direct" or "indirect" method]; Griffin v. Steeltek, Inc. (10th Cir.2001) 261 F.3d 1026, 1028-1029 [noting possibility of compensatory damages under the ADA if plaintiff establishes that employer "`engaged in unlawful intentional discrimination'"].)

In enacting the ADA, Congress also contemplated architectural regulations, or "design standards," which would be promulgated by the executive branch of the federal government to facilitate the equal access of disabled individuals to public accommodations, such as restaurants. One federal court summarized Congress' approach this way: "In drafting Title III of the ADA, Congress painted with a broad brush and then directed the Attorney General to promulgate regulations to implement the law.... Those regulations were to include design standards, which must be `consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board,' commonly referred to as the `Access Board.'" (Independent Living Resources v. Oregon Arena Corporation (D. Oregon 1997) 982 F.Supp. 698, 707-708 (hereinafter Independent Living I.)3

The architectural regulations or "design standards" implemented by the federal ADA are often referred to in the literature as "ADAAGs," which is an acronym for "ADA Architectural Guidelines." (See Independent Living I, supra, 982 F.Supp. at pp. 707-708 ["The guidelines issued by the Access Board are denominated the `ADA Accessibility Guidelines' (`ADAAG.') The design standards enacted by the Attorney General are identical to the ADAAGs, but are denominated as `Standards.' Despite the technical distinction, the two terms are often used interchangeably."]; Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd. (S.D.Fla.2001) 146 F.Supp.2d 1334, 1336 ["These guidelines are called ... ("ADAAG")...."].) The "ADAAGs" are found in Appendix A to Part 36 of title 28 of the Code of Federal Regulations.4

Some of the ADAAGs are basically so intuitive and obvious—such as requiring the doors to at least one stall in a public restroom to be wide enough to allow a wheelchair to pass through5—that it would be hard to believe that noncompliance with them could be other than intentional.6 Other "ADAAGs," however, do not implicate any intentional conduct at all, such as the requirement that the pipes underneath the sink in a public restroom be wrapped with insulation,7 or the remarkable requirement that any visual alarms be exactly 80 inches above the highest floor level within the space or exactly 6 inches below the ceiling, whatever is lower.8 For example, a customer using a wheelchair who entered a public restroom before a contractor had finished working on a remodel of it and had gotten around to wrapping insulation on the pipes under the sink would find a restroom in "violation" of the ADA even though the owner was remodeling the restroom precisely in order to insure that wheelchair customers had equal access to its toilet facilities.

It is, in fact, very easy to violate one of the ADAAGs inadvertently, even if one has the best of intentions. For example, one federal case, Torres v. Rite Aid Corp. (N.D.Cal.2006) 412 F.Supp.2d 1025, even held that one defendant's reliance on the United States Department of Justice's Title III Technical Assistance Manual was insufficient because there was a technical conflict with what the manual said and the promulgated regulations—ironically issued by the Department of Justice itself.9

Thus it is not surprising that a number of courts have noted that there can be "violations" of the ADA—that is, noncompliance with certain ADAAGs and other ADA regulations—by even the best-intentioned property owners. (See Fell v. Spokane Transit Authority (1996) 128 Wash.2d 618, 628, 911 P.2d 1319 ["ADA's protection is not even conditioned upon a finding of `discrimination,'...."]; Independent Living I, supra, 982 F.Supp. at p. 707 [`With limited exceptions, the defendant's mental state has little bearing upon whether the Rose Garden [the indoor sports stadium alleged to be non-compliant] complies with the requirements of Title III of the ADA at least in an action commenced by a private party."]; Helen L. v. DiDario (3d Cir.1995) 46 F.3d 325, 335 ["Because the ADA evolved from an attempt to remedy the effects of `benign neglect' resulting from the `invisibility' of the disabled, Congress could not have intended to limit the Act's protections and prohibitions to circumstances involving deliberate discrimination. Such discrimination arises from `affirmative animus' which was not the focus of the ADA or section 504 [of the Rehabilitation Act of 1973]."].)

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination.10 Under such circumstances, the most a private person can obtain are the attorney fees incurred in an action to force the businessperson into compliance. (Boemio v. Love's Restaurant (S.D.Cal.1997) 954 F.Supp. 204, 207 ["Monetary damages are not recoverable by private Plaintiffs under the ADA."]; Independent Living I, supra, 982 F.Supp. at p. 771 ["A private litigant may obtain injunctive relief and recover attorney fees under this subchapter, but is not entitled to recover compensatory or punitive damages on such claim."]; see also American Bus Ass'n v. Slater (D.C.Cir.2000) 231 F.3d 1, 5 ["By specifying the circumstances under which monetary relief will be available, Congress evinced its intent that damages would be available in no others."]; McCabe, California Disability Anti-Discrimination Law: Lighthouse in the Storm or Hunt for Buried Treasure? (2005) 36 McGeorge L.Rev. 661, 662 ["suits arising under federal law permit private plaintiffs to obtain only injunctive relief," citing 42 USC §§ 2000a-3(a) & 12188(a)(1) ].)

By contrast with the federal ADA, California's Civil Code section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.11


And with that, we come to the case at hand. Plaintiff David Gunther uses a wheelchair. He entered the restroom in a Jack-in-the-Box restaurant owned by defendant John Lin at a time just before the completion of remodeling. The toilet was accessible and otherwise in compliance with the ADAAGs, but he found (a) a lack of insulation underneath the sink, and (b) a mirror that was too high. Gunther brought this action, seeking at least $8,000 in automatic penalties...

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