Munson v. Del Taco, Inc.

Decision Date14 April 2008
Docket NumberNo. 06-56208.,06-56208.
PartiesKenneth MUNSON, Plaintiff-Appellee, v. DEL TACO, INC., a California corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Lisa A. Wegner and Melinda Evans, Call, Jensen & Ferrell, Newport Beach, CA, for the Defendant-Appellant.

Russell C. Handy and Mark D. Potter, Center for Disability Access, LLP, San Marcos, CA, for the Plaintiff-Appellee.

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

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA
ORDER

We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below, pursuant to California Rule of Court 8.548. The resolution of these questions will determine the outcome of this appeal, and no clear controlling California precedent exists. See Cal. R. Ct. 8.548(a). We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act ("Unruh Act"), Cal. Civ.Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions.

1. Administrative Information
                     Ninth Circuit Case No. 06-56208
                     KENNETH MUNSON, Plaintiff-Appellee
                     v
                     DEL TACO, INC., Defendant-Appellant
                

Counsel for Kenneth Munson: Mark D. Potter and Russell C. Handy, Center for Disability Access, LLP, 100 E. San Marcos Blvd., Suite 400, San Marcos, California 92069.

Counsel for Del Taco: Scott J. Ferrell, Lisa A. Wegner, and Melinda Evans, Call, Jensen & Ferrell, 610 Newport Center Drive, Suite 700, Newport Beach, California 92660.

Del Taco is deemed the petitioner in this request because it appeals the district court's rulings on the issues identified below.

2. Questions Certified

We certify to the California Supreme Court the following questions of state law that are presently before us. Our phrasing of the questions should not restrict the California Supreme Court's consideration of the issues involved, and that court may rephrase the questions. We will accept the decision of the California Supreme Court. See Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164 (9th Cir.1995) (holding that the Ninth Circuit is bound to follow the California Supreme Court's interpretation of California law).

1. Must a plaintiff who seeks damages under California Civil Code section 52, claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Act, Cal. Civ.Code § 51, prove "intentional discrimination"? 2. If the answer to Question 1 is "yes," what does "intentional discrimination" mean in this context? For example, does intentional discrimination mean:

— an intent to deny full and equal treatment;

— an intent to act (or not act) in a way that the actor is aware will fail to provide full and equal treatment;

— an intent to violate the ADA;

— an intent not to remove barriers to access—in other words, to maintain the current architectural layout;

— that, as defined by Judicial Council of California Civil Jury Instruction ("CACI") 3020, disability was a "motivating reason" in denying full and equal treatment; or

— deliberate indifference to whether the actor's conduct will provide full and equal treatment?

3. Statement of Facts

Plaintiff Kenneth Munson has a physical disability that requires that he use a wheelchair. Plaintiff alleges that he visited the Del Taco restaurant in San Bernardino, California, which is owned and operated by Defendant Del Taco, Inc. Plaintiff further alleges that, at the Del Taco restaurant, he encountered architectural barriers that denied him legally required access to the parking area and restrooms.

Plaintiff filed suit against Defendant in the Central District of California. He alleged violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213, and the Unruh Act, Cal. Civ.Code § 51. Plaintiff sought injunctive relief, damages, and attorney fees under California Civil Code section 52 for the alleged Unruh Act violations.

On cross-motions for summary judgment, the district court granted partial summary judgment in favor of Plaintiff. The court reasoned that "there is no genuine issue of fact that an architectural barrier existed" and that "there is no genuine issue of fact that the restroom doorway widening was readily achievable." Consequently, the court ruled "that there is no genuine issue of fact that an ADA violation occurred. Thus, [Defendant] is liable under the Unruh Act and[Plaintiff] is entitled to pursue statutory damages."1

The parties stipulated to $12,000 in damages under the Unruh Act in lieu of holding a jury trial on the issue, with Defendant reserving the right to appeal any adverse orders or judgments. The district court entered judgment, and Defendant timely appealed the district court's grant of Plaintiff's motion for partial summary judgment.

Defendant argues on appeal that it is entitled to summary judgment because intent is required under the Unruh Act and Plaintiff failed to put forth any evidence that Defendant intentionally discriminated against him. Plaintiff does not contend that he provided evidence that Defendant was motivated by animus against people with disabilities, but argues that such intent is not required or, in the alternative, that the requisite intent is the intent not to remove barriers to access where readily achievable.

4. Need for Certification

The certified questions present issues of significant precedential and public policy importance. Both California state courts and federal courts have considered whether a plaintiff who claims a denial of full and equal treatment on the basis of disability in violation of the Unruh Act, Cal. Civ.Code § 51, and seeks damages under California Civil Code section 52, must prove "intentional discrimination." But no clear controlling California precedent answers that question. In addition, no California precedent answers what a showing of "intentional discrimination" requires.

Under the Unruh Act, "[a]ll persons ... no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ.Code § 51(b). California Civil Code section 52(a) provides a remedy for a violation of those rights:

Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney's fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.

In Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873, 893 (1991), the California Supreme Court "h[e]ld 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." (Emphasis added.) Among other reasons supporting this conclusion, the court noted that section 52's

references to "aiding" and "inciting" denial of access to public accommodations, to making discriminations and restrictions, and to the commission of an "offense" imply willful, affirmative misconduct on the part of those who violate the Act. Moreover, the damages provision allowing for an exemplary award of up to treble the actual damages suffered with a stated minimum amount reveals a desire to punish intentional and morally offensive conduct.

Id. at 891.

The following year, the California legislature amended the Unruh Act to provide that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 ... shall also constitute a violation of this section." Cal. Civ. Code § 51(f). The legislative history of that amendment does not refer to Harris. See Gunther v. Lin, 144 Cal.App.4th 223, 50 Cal.Rptr.3d 317, 334-35 (2007) (noting the absence of any mention of the Harris intentional discrimination issue in the bill's legislative history). Under the ADA, though, "a plaintiff need not show intentional discrimination in order to make out a violation." Lentini, 370 F.3d at 846; see also 42 U.S.C. § 12182(b)(2)(A) (enumerating violations of the ADA by public accommodations).

In Lentini, 370 F.3d 837, we held that the 1992 amendment to the Unruh Act eviscerated Harris' requirement of intentional discrimination in cases involving violations of the ADA:

We find that, regardless of whether Harris may continue to have relevance to other Unruh Act suits, no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation. This result is mandated by the plain meaning of the Unruh Act's language, which states that a violation of the ADA is, per se, a violation of the Unruh Act. Because the Unruh Act has adopted the full expanse of the ADA, it must follow, that the same standards for liability apply under both Acts.

Id. at 847 (citation and internal quotation marks omitted).

However, in Gunther, 50 Cal.Rptr.3d at 342, the California Court of Appeal held that Lentini was wrongly decided: "To the degree that ... Lentini is read as authorizing monetary damage and minimum damage claims under section 52, it is not persuasive as a statement of state law...." The Court of Appeal explained that we erred in Lentini because we...

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