Skaff v. Rio Nido Roadhouse

• Citation: 55 Cal.App.5th 522,269 Cal.Rptr.3d 578
• Decision Date: 05 October 2020
• Docket Number: A152462, A153606
• Court: California Court of Appeals
• Parties: Richard SKAFF, Plaintiff and Appellant, v. RIO NIDO ROADHOUSE, Defendant and Appellant.

55 Cal.App.5th 522

269 Cal.Rptr.3d 578

Richard SKAFF, Plaintiff and Appellant,

v.RIO NIDO ROADHOUSE, Defendant and Appellant.

A152462, A153606

Court of Appeal, First District, Division 1, California.

Filed October 5, 2020

As Modified on Denial of Rehearing October 20, 2020

Metz & Harrison, Jeff A. Harrison, Los Angeles, Sara Pezeshkpour, El Segundo, for Plaintiff and Appellant

O'Brien, Watters & Davis, Joseph Baxter, Sara Baxter, Santa Rosa, for Defendant and Appellant

Sanchez, J. Plaintiff Richard Skaff sued a restaurant and bar establishment called the Rio Nido Roadhouse (Roadhouse), doing business as Lowbrau, LLC (Lowbrau), alleging that the Roadhouse and an adjoining parking lot were inaccessible to wheelchair users. Plaintiff asserted two causes of action, one under Health and Safety Code ¹ section 19955 et seq., and the second under the Unruh Civil Rights Act ( Civ. Code, § 51 et seq. (Unruh Act)). Under section 19955, public accommodations like the Roadhouse must comply with California Building Code disability access standards if repairs and alterations were made to an existing facility that trigger accessibility mandates. No evidence was adduced at trial that Lowbrau had undertaken any triggering alterations at the Roadhouse which required compliance with section 19955.

Lowbrau did, however, voluntarily remediate the barriers to access previously identified by plaintiff. The trial court entered judgment against plaintiff on his Unruh Act cause of action but ruled in his favor on the section 19955 claim. The court reasoned that plaintiff was the prevailing party under a "catalyst theory" (see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 21 Cal.Rptr.3d 331, 101 P.3d 140 ( Graham )), because his lawsuit was the catalyst that caused the renovations at the Roadhouse. Plaintiff was awarded $242,672 in attorney fees and costs. Lowbrau appeals from the judgment and the post-judgment order awarding attorney fees and costs. Plaintiff also appeals, contending the court erred in failing to award all of his requested fees.

We reverse the judgment and fee award. It is axiomatic that plaintiff cannot prevail on a cause of action in which no violation of law was ever demonstrated or found. Nor is the catalyst theory available when a claim lacks legal merit. That a prelitigation demand may have spurred action that resulted in positive societal benefit is not reason alone to award attorney fees under the Civil Code.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

A. The Roadhouse

The Roadhouse is a restaurant and bar located near Guerneville in Sonoma County. The site includes an outdoor event space and swimming pool. Brad Metzger is the current owner and operator of the Roadhouse. He and his former business partner formed Lowbrau and purchased the property in 2007. Shortly after purchasing the Roadhouse they decided to upgrade the kitchen.

In October 2007, the Sonoma County Permit and Resource Management Department approved a building permit for the kitchen, conditioned on the performance of certain disability access upgrades. Lowbrau requested a hardship exception for these upgrades and submitted plans to the County that included installing a designated accessible parking space on the south-facing parking lot (the South Lot), repairing the slope of the existing wheelchair ramp, and remodeling the restrooms to make them wheelchair accessible. Lowbrau completed the kitchen remodel but postponed work on the access upgrades.

Lowbrau has never owned the South Lot. At times it leased the lot for patron parking and it made several unsuccessful attempts to purchase the South Lot over the years. The disabled parking spaces referenced in the 2007 building permit were never installed. A small asphalt lot on the north side of the Roadhouse was made available for public parking in December 2014, shortly after the South Lot was chained off by its owner. Lowbrau reached a settlement with the South Lot's owner allowing it to construct two disabled parking spaces on the east side of the Roadhouse after it obtained an encroachment permit from the County.

B. Plaintiff's Visit to the Roadhouse

Plaintiff became disabled in 1978 as a result of an accident and requires the use of a wheelchair. On the evening of October 18, 2012, plaintiff tried to patronize the Roadhouse. He drove a full-sized van with a wheelchair lift that required an eight-foot clearance. As he approached the establishment, he saw that several cars were already parked there. The Roadhouse was very busy that evening due to simultaneously televised San Francisco 49ers and San Francisco Giants games. He turned into the South Lot looking for an accessible parking space. He saw a disabled parking sign but the space was occupied. A disabled veteran had already parked in the designated space.

Plaintiff could not find an available parking spot in the South Lot large enough to accommodate his van with clearance for the lift, and he could not see a wheelchair-accessible way to enter the Roadhouse from the South Lot. He drove away and did not attempt to enter the bar. When he got home, he called the Roadhouse and explained that he was disabled and had experienced difficulty entering the facility.² Metzger returned his call, and after some discussion, told plaintiff to contact the County with his concerns.

C. Events Leading to Litigation

Shortly after plaintiff's visit, Metzger retained Fred Lustenberger, a certified accessibility specialist. Lustenberger inspected the Roadhouse in December 2012 and found several accessibility issues. There were no marked parking spaces in the South Lot, wheelchair or otherwise. An existing wheelchair ramp on the south side of the facility had slopes measuring between 5.2 and 9.2 percent and lacked required handrails. The ramp's landings had slopes exceeding 2 percent in any direction, and the gate at the top of the ramp lacked kick plates. The entrance landings and walking paths had slopes exceeding 2 percent, and the public restrooms were not wheelchair accessible.

Over the next several months, plaintiff's lawyers sent Metzger several letters demanding remediation of various access concerns, including those identified by Lustenberger. Metzger responded that he had hired an accessibility specialist and would remediate certain access barriers. On June 26, 2013, plaintiff sent Metzger a settlement agreement providing for a six-month period to bring the Roadhouse into compliance with state and federal accessibility requirements, and indicated that if settlement could not be reached he would initiate litigation. Dissatisfied with Metzger's response, plaintiff filed his complaint in August 2013.

The first cause of action alleged that the Roadhouse was in violation of section 19955 because it had undergone alterations to an existing facility that triggered California Building Code disability access requirements. The second cause of action under the Unruh Act alleged violation of the Americans with Disabilities Act ( 42 U.S.C §§ 12181 - 12189 ) (ADA) based upon plaintiff's inability to patronize the Roadhouse because of access barriers in the South Lot and entrance. Plaintiff sought damages, injunctive relief, and attorney fees and costs. Lowbrau filed a cross–complaint against plaintiff for attempted extortion and unfair business practices under Business and Professions Code section 17200.

II. Trial

A. Expert Witness Testimony

The matter was conducted over a 12-day bench trial in January and February 2017. Both sides offered expert witness testimony describing federal and state disability standards. The experts agreed that three standards are relevant in determining whether a public accommodation has complied with federal and state accessibility laws: new construction standards, alteration standards, and barrier removal standards. The first two standards are found in both state and federal law. New construction standards apply to buildings or facilities constructed for first occupancy. The alteration standards pertain to modifications made to existing facilities, though not every alteration will trigger the duty to make access upgrades. The barrier removal standard is required only under the ADA. The ADA creates an ongoing obligation for buildings constructed before 1991 to remediate architectural barriers when it is "readily achievable" to do so, a standard that is applied on a case-by-case basis. ( 42 U.S.C., § 12182(b)(2)(A)(iv).)

Plaintiff's disability access expert witness Karl Danz visited the Roadhouse in August 2014 and prepared a report detailing various access deficiencies he had observed. Danz was directed by plaintiff's counsel to evaluate the Roadhouse under the new construction standard only; his evaluation did not consider the alteration standard or the ADA barrier removal standard. Danz did not review the construction history of the Roadhouse nor was he provided any building records or permits showing that the facility had undergone any alterations or additions since 1970.

In his inspection, Danz found that the Roadhouse was not wheelchair accessible. Among other things, the disabled parking spot in the South Lot did not comply with current state or federal disability requirements. An accessible space must be on a hard surface, must be striped and marked, and must connect to an accessible route. And while a disability access sign had been placed near an existing ramp leading from the parking area to the pool area, the gate at the end of the ramp was closed. The main entrance was accessed by stairs, and there were no signs indicating an access route for people in wheelchairs.

Danz returned to the Roadhouse in September 2014 and observed four access remediation projects underway: a concrete parking pad on the east side of the facility, a new wheelchair ramp, a bathroom access modification, and elevation of a dining table to provide sufficient clearance. When he conducted a follow-up inspection in August 2016, virtually all of the access concerns h...