Hankins v. El Torito Restaurants, Inc.

Decision Date22 April 1998
Docket NumberA075621,Nos. A074012,s. A074012
Citation74 Cal.Rptr.2d 684,63 Cal.App.4th 510
Parties, 12 NDLR P 313, 98 Cal. Daily Op. Serv. 3056, 98 Daily Journal D.A.R. 4191 Mark HANKINS, Plaintiff and Appellant, v. EL TORITO RESTAURANTS, INC., et al., Defendants and Appellants.
CourtCalifornia Court of Appeals Court of Appeals

Sidney J. Cohen, Paul L. Rein, Oakland, Bryce C. Anderson, Concord, for Plaintiff and Appellant Mark Hankins.

Guy Wallace, Oakland, as Amicus Curiae on behalf of Plaintiff and Appellant.

Gregory F. Hurley, Irvine, Francis T. Donohue III, for Defendants and Appellants El Torito Restaurants.

HAERLE, Acting Presiding Justice.


This appeal and cross-appeal arise from litigation between Mark Hankins, a disabled man, and the owners and operators of an El Torito restaurant located in Burlingame, California. 1 The litigation was precipitated by Hankins's visit to the restaurant in October 1991. During that visit, restaurant employees refused to permit Hankins to use an otherwise accessible "employee restroom." Hankins sought damages and injunctive relief under state and federal law for this denial of access and for other alleged violations of state and federal laws which prohibit discrimination on the basis of a disability and prohibit denying disabled individuals access to public accommodations.

After a court trial, the court found El Torito's refusal to permit Hankins to use the restroom violated California law and awarded Hankins $80,000 damages. The court also enjoined El Torito from requiring that a recently installed wheelchair lift be accessed and controlled only by restaurant employees. El Torito appeals each of these rulings. El Torito also contends the trial court erred by awarding Hankins's expert witness fees as part of his damages.

Hankins cross-appeals, alleging the trial court erred by concluding that (1) the Burlingame restaurant was in compliance with state disability access laws as of the date of his October 1991 visit, and (2) Hankins does not have standing to assert a violation of Title III of the federal Americans with Disabilities Act. (42 U.S.C.A., §§ 12181 et seq.)


In 1988, Hankins was in an accident which resulted in amputation of his right leg several inches below his knee. Wearing his prosthesis causes Hankins periodic problems and pain which sometimes requires that he use crutches or a wheelchair. Hankins was using crutches when he and his fiancee went to the El Torito restaurant in Burlingame on October 23, 1991.

At the time of Hankins's visit, there were six steps at the entrance of the restaurant. Three steps separated the main dining room of the restaurant from the lower bar level. And, there were eighteen steps from the main level to the second floor of the building where the public restrooms were located. The building did not have an elevator. A sign near the front entrance of the restaurant warned: "Premises Not Wheelchair Equipped."

With his fiancee's assistance, Hankins climbed the six stairs leading to the restaurant entrance. At some point during the evening, Hankins had to use the restroom. Hankins explained to the restaurant manager that he could not climb the eighteen stairs leading to the public restrooms and asked if he could use the employee restroom on the first floor. The manager refused Hankins's request and told him to go use the restroom in another restaurant which was located next door.

Using his crutches, Hankins made his way out of the restaurant (up the three interior stairs and down the six exterior stairs) and across the approximately 75 yards of parking lot to the restaurant where the El Torito manager had directed him to go. That restaurant was not, however, handicapped accessible. On his way back to the El Torito restaurant, Hankins encountered several people in the El Torito parking lot. Unable to wait any longer, Hankins found a bush and relieved himself. Hankins was angered and humiliated by this experience.

Hankins filed his complaint against El Torito on August 10, 1992. He sought damages and injunctive relief for violations of various state disability access laws, state laws prohibiting discrimination on the basis of physical handicap or disability and the federal American with Disabilities Act. Hankins also sought punitive damages and attorney's fees. A court trial commenced on July 26, 1994, and the court issued its statement of decision on December 18, 1995.

The trial court found that the Burlingame restaurant was not in violation of California's disability access laws and regulations on October 23, 1991, the date of Hankins's visit. The court ruled that Hankins failed to prove that (1) the structure was already in violation of applicable access laws when El Torito acquired it in 1984, (2) remodeling work performed in 1985 to convert the restaurant from a "Tia Maria" to an "El Torito" violated applicable access laws, or (3) the 1989 construction of a seawall between the restaurant building and San Francisco Bay required installation of access features inside the restaurant.

The trial court further ruled that, although the Burlingame restaurant was not in violation of applicable disability laws, El Torito breached its duty to Hankins as a disabled person and discriminated against him by refusing to permit him to "use the only available restroom facilities on the ground floor of the building, the employees facilities." The court awarded Hankins $80,000 as damages for this discriminatory act.

In ruling on Hankins's requests for injunctive relief, the court framed the issue as a question of whether handicapped access features installed by El Torito in the fall of 1992 (after litigation commenced) were "sufficient to comply with the applicable State Laws and Regulations governing handicapped access." The court ruled that the improvements were sufficient, "with the sole exception of the [wheelchair] lift" which was installed between the main entrance and the lower bar area of the restaurant. The court ruled that the lift was not sufficiently accessible to disabled persons because it could only be actuated by restaurant management.

The trial court entered judgment for El Torito on Hankins's claim for violation of the Americans with Disabilities Act because Hankins's visit to the restaurant occurred prior to the effective date of this federal law, which the court ruled was not retroactive.

The court denied Hankins's request for punitive damages but awarded him attorney's fees. In this regard, the court expressly accepted Hankins's argument that his complaint was the "substantial precipitating cause" of El Torito's actions in installing handicapped access features in the Burlingame restaurant.


El Torito contends the judgment against it must be reversed because the trial court erred by (1) concluding that El Torito's restroom policy violated Hankins's rights (2) enjoining El Torito from maintaining its policy with respect to use of the wheelchair lift, and (3) permitting Hankins to include his expert witness fees as recoverable costs.

A. The Restroom Policy

The precise statutory basis for the trial court's ruling that El Torito violated Hankins's rights by denying him access to an available restroom is unclear. In his complaint, Hankins alleged violations of the Unruh Civil Rights Act, codified at Civil Code sections 51 and 52, and also of Civil Code sections 54 et seq. The trial court found that El Torito violated Hankins's rights under "Civil Code § 51 et seq." It ruled that El Torito "breached its duty to Plaintiff as a disabled person," and awarded Hankins $80,000 in damages for the "discriminatory" acts of El Torito's employees. It also awarded attorney's fees pursuant to sections 54.3 and 55 of the Civil Code, both which expressly relate to violations of Civil Code section 54.

El Torito contends the judgment against it cannot be sustained because (1) the record does not establish a violation of Civil Code section 51 (hereafter section 51), and (2) the trial court's express findings affirmatively establish that El Torito did not violate Civil Code section 54.1, subdivision (a) (hereafter section 54.1(a)). Although the trial court could have been clearer in its ruling, we conclude the record supports findings that El Torito violated both section 51 and section 54.1(a).

1. Section 51

Section 51 states, in part: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. [p] This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race religion, ancestry, national origin, or disability." (Emphasis added.)

El Torito contends the judgment against it cannot be affirmed under section 51 because it did not intentionally discriminate against Hankins. "[A] plaintiff seeking to establish a case under the Unruh Civil Rights Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act." (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175, 278 Cal.Rptr. 614, 805 P.2d 873.) El Torito argues Hankins did not plead intentional discrimination, the trial court did not find intentional discrimination, and there was insufficient evidence of intentional discrimination.

Hankins did plead intentional discrimination by alleging a violation of section 51 in his third cause of action. Although sufficiency of the pleadings is not at issue here, we note that Hankins expressly alleged that El Torito "wrongfully and unlawfully denied...

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