Jankey v. Poop Deck

• Decision Date: 12 August 2008
• Docket Number: No. 06-55957.,06-55957.
• Citation: Jankey v. Poop Deck, 537 F.3d 1122 (9th Cir. 2008)
• Parties: Les JANKEY, Plaintiff-Appellant, v. POOP DECK; Quentin L. Thelen; and The Poop Deck Inc., a California corporation; Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

537 F.3d 1122

Les JANKEY, Plaintiff-Appellant, v.POOP DECK; Quentin L. Thelen; and The Poop Deck Inc., a California corporation; Defendants-Appellees.

No. 06-55957.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2008.

Filed August 12, 2008.

Thomas E. Frankovich and Julia M. Adams, Thomas E. Frankovich, PLC, San Francisco, CA, for the plaintiff-appellant.

E. Thomas Moroney, Redondo Beach, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding.D.C. No. CV-04-09741-RSWL.

Before: SUSAN P. GRABER and MARSHA S. BERZON, Circuit Judges, and CLAUDIA WILKEN,^*District Judge.

GRABER, Circuit Judge:

PlaintiffLes Jankey, an individual with a physical disability, sued Defendant Poop Deck, a beer and wine bar, and its owners, DefendantsQuentin L. Thelen and The Poop Deck Inc., under the Americans with Disabilities Act of 1990("ADA"), 42 U.S.C. §§ 12101-12213.Plaintiff alleged that Defendants failed to remove architectural barriers at a place of public accommodation, in violation of the ADA.The parties entered into a settlement agreement, which the district court approved, that required Defendants to remedy the problems.Plaintiff then sought attorney fees as a prevailing party under the ADA.The district court denied the request, ruling that "an award of attorney's fees and costs under the circumstances would be unjust."We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff has a congenital deformity of his lower extremities, requiring that he use a wheelchair.Plaintiff alleges the following facts.On September 23, 2004, he visited the Mermaid, a restaurant in Hermosa Beach, California, to have a snack.After being unable to use the restroom at the Mermaid, he visited the Poop Deck, a beer and wine bar adjacent to the Mermaid, to have a drink and use the restroom.When he attempted to visit the Poop Deck, he encountered architectural barriers that denied him legally required access to the bar and restrooms.He"found that there was no lowered bar area from which to order a drink or to sit at the bar," that he"had difficulty wheeling through the narrow door of the restroom, as it only had a 27 inch clearance," and that, when he"attempted to transfer to and from the toilet without the use of a grab bar,"he"stressed and strained himself in the transfer process."

On November 30, 2004, Plaintiff and the organization Disability Rights Enforcement, Education, Services: Helping You Help Others ("DREES") filed suit against Defendants in the Central District of California.¹They alleged violations of the ADA, 42 U.S.C. §§ 12101-12213; the California Disabled Persons Act, Cal. Civ.Code §§ 54-55.2;California Health & Safety Code § 19955; the Unruh Civil Rights Act,Cal. Civ.Code § 51; and the California Unfair Competition Act, Cal. Bus. & Prof.Code §§ 17200-17210.Under the ADA, they sought injunctive relief to compel Defendants to make the Poop Deck accessible to individuals with disabilities, and they requested attorney fees and costs.On the California state law claims, they sought injunctive relief, attorney fees and costs, general and compensatory damages, punitive damages, statutory damages, special and consequential damages, and prejudgment interest.

Neither Plaintiff personally nor his lawyers provided Defendants with any form of prelitigation notice, whether formal or informal.In other words, they did not notify Defendants in any way of the alleged accessibility violations before they filed suit.²

On July 25, 2005, the district court dismissed DREES for lack of standing and declined to exercise supplemental jurisdiction over Plaintiff's state law claims, ruling that the claims predominated over the federal ADA claim.Those rulings are not at issue on appeal.

On July 26, 2005, Defendants' counsel, E. Thomas Moroney, sent Plaintiff's counsel, Julia Adams at the Frankovich Group, a letter as a follow-up to a telephone conversation that had taken place one month earlier.The letter expressed Defendants' belief that they were not violating the ADA because the Poop Deck had accessible seating and because of the age and size of the facility.³The letter proposed a compromise:

The Poop Deck and The Mermaid Restaurant are located side-by-side in a common building with a dividing wall.The property is owned by Mr. Thelen.The Mermaid is a defendant in a separate lawsuit brought by your client.The Poop Deck and Mermaid are willing to build a third unisex ADA compliant restroom in the Mermaid and have that restroom available to Poop Deck and Mermaid customers.The Poop Deck would post appropriate signage.The Poop Deck and Mermaid front The Strand, which is the beach bike, skate, and pedestrian walk way.A disabled customer from the Poop Deck can get to the Mermaid on The Strand without crossing streets or the Mermaid parking lot.

The Poop Deck is also willing to address accessible seating by trying to lower and widen a portion of the shelf/rail that runs along the northern wall.

I believe a shared facility is a reasonable and appropriate response.Given the age of the building and its common ownership it is unreasonable to expect the parties to incur the expense of completely remodeling several existing restrooms, all of which are undersized and likely could not meet new construction ADA requirements in any event.

Last month I asked whether these modifications would satisfy your client's demands and allow us to settle the litigation.My clients would like to proceed with these modifications knowing that it will bring the lawsuits to an end.We do not want to be in a position of spending money on these modifications only to later learn that your client disapproves of them or demands something else.If your client does not respond or if we cannot reach agreement on the modifications, we will do what we believe is reasonably required under the circumstances and defend the litigation.But our first preference is to try and reach some agreement.

On August 23, 2005, Moroney sent Adams a second letter: "I would greatly appreciate some response to the proposal that has been on the table since June."

On October 7, 2005, Moroney again sent Adams a letter.The district court had appointed a mediator to the case, and Moroney proposed a mediation date.Moroney also wrote:

In June, I proposed a resolution that addressed the site issues as alleged in your complaint against the Poop Deck (as tenant) and Mr. Thelen (as landlord).I confirmed that proposal in writing.I followed-up with phone calls.To date, I have heard nothing from your office.My understanding is that the same is true with regard to the separate case alleging site issues specific to the Mermaid Restaurant (owned by Mr. Thelen), which is being defended by different counsel.

It may be utterly unnecessary for you to travel to Los Angeles for a mediation in this case, but we will not know that unless and until we get a response to, or at least a discussion about, the proposal on the table.If you have some fondness for downtown Los Angeles, then I suppose we will have the discussion during the mediation.But the trip and expense may be unnecessary.

On November 1, 2005, Moroney sent Adams an e-mail: "Any word on your end re the proposal on the table?"Three days later, Moroney followed up the e-mail with another letter:

As you know, we have a mediation scheduled for November 16.In June, I put a proposal on the table involving structural modifications to the Poop Deck and Mermaid that addressed your client's concerns.I have followed-up on that proposal with phone calls and letters to you asking for a response.To date, your client still has not responded.

I am concerned that the mediation will be quite unproductive if you do not provide a response to or at least engage in some dialogue about the proposed modifications before we meet on the 16th.If you take the position at the mediation that our existing proposal is inadequate in some way and have some other modifications in mind, we will not be able to agree or disagree with any counter proposal without first having input from an architect and contractor and an understanding of what the City, County, and Alcohol Beverage Control Board might say about different modifications.So if, at the mediation, you come in and say we want "x," the very best response we could give you is: "we have to run that by all sorts of other folks before we can give you a response."The mediation will end.Our clients and the mediator's time will have been wasted, and you will have flown to Los Angeles for nothing.

We will have the same problem if you respond before the mediation but wait until the last minute before doing so.Please give us a response to the proposal by next Wednesday.Hopefully that will give us enough lead time to be able to productively discuss resolution on the 16th.Thank you.

The following Wednesday, November 8, 2005, Thomas E. Frankovich, the Frankovich Group's namesake, finally responded to Moroney's entreaties with a letter that he jointly wrote with Adams.The letter accepted Defendants' proposal of a single, unisex, ADA-accessible restroom located in the Mermaid Restaurant.Frankovich also requested that the restaurant add "signage of significant size ... indicating the location and path of travel to the accessible restroom,""that an accessible area in the bar ... be created," and that "a sign bearing the International Symbol of Accessibility ... be posted adjacent to the front door," all of which Moroney had proposed in varying levels of detail.Frankovich then "ma[d]e a monetary demand contingent on an agreement being reached as to the requested injunctive relief."He stated:

[I]f this case were to go to trial, defendants' potential exposure for statutory damages [under state law] alone is potentially $48,000.00.

Of course, we are...