Wash. State Commc'n Access Project v. Regal Cinemas, Inc.

• Decision Date: 28 January 2013
• Docket Number: No. 67613–0–I.,67613–0–I.
• Court: Washington Court of Appeals
• Parties: The WASHINGTON STATE COMMUNICATION ACCESS PROJECT, a Washington non-profit corporation, Respondent, v. REGAL CINEMAS, INC., a subsidiary of Regal Entertainment Group, a Delaware corporation; AMC Entertainment, Inc. a/k/a American Multi–Cinema, Inc., a Delaware corporation; Cinemark Holdings, Inc., a Delaware corporation; Silver Cinemas Acquisition Co., LLP, d/b/a Landmark Theaters, a Delaware limited partnership; Lincoln Square Cinemas, LLC, a Delaware limited liability company; and Kirkland Parkplace Cinemas, LLC, a Washington liability company, Appellants.

293 P.3d 413

The WASHINGTON STATE COMMUNICATION ACCESS PROJECT, a Washington non-profit corporation, Respondent,

v.REGAL CINEMAS, INC., a subsidiary of Regal Entertainment Group, a Delaware corporation; AMC Entertainment, Inc. a/k/a American Multi–Cinema, Inc., a Delaware corporation; Cinemark Holdings, Inc., a Delaware corporation; Silver Cinemas Acquisition Co., LLP, d/b/a Landmark Theaters, a Delaware limited partnership; Lincoln Square Cinemas, LLC, a Delaware limited liability company; and Kirkland Parkplace Cinemas, LLC, a Washington liability company, Appellants.

No. 67613–0–I.

Court of Appeals of Washington,

Division 1.

Jan. 28, 2013.

Robert Ashley Leishman, Thomas Adger Lemly, Davis Wright Tremaine LLP, Seattle, WA, Laura M. Franze, Hunton & Williams, LP, Los Angeles, CA, M. Brett Burns, Hunton & Williams, LP, San Francisco, CA, for Appellants, Regal Cinemas, Inc., Cinemark Holdings, Inc. and AMC Entertainment, Inc.

John Frazier Waldo, Attorney at Law, Houston, TX, for Respondent.

COX, J.

¶ 1 Regal Cinemas, Inc. (Regal), Cinemark Holdings, Inc. (Cinemark), and American Multi–Cinema, Inc. (AMC) appeal decisions of the trial court in this action under the Washington Law Against Discrimination (WLAD). They contend that the Washington State Communication Access Project, (WashCAP), a non-profit corporation and the successful plaintiff, is not entitled to the declaratory,injunctive, and attorney fee relief awarded below. We disagree and affirm.¹

¶ 2 WashCAP has the stated purpose “to enable those with hearing losses to enjoy public places and participate in public life as fully as those without hearing losses to the extent such full participation is technologically and economically possible.” ² Its members have hearing losses of such magnitude that they are unable to understand some or all spoken movie content when they attend theaters owned and operated by Regal, Cinemark, and AMC. The members cannot understand aural movie content even with the use of an assistive listening device. However, they can understand movie captions that display spoken content and other aural information in visual text form. Captions may be displayed in either closed or open format. In closed captioning, captions are displayed only to those individuals who request display devices. In open captioning, the captions are displayed to the entire audience.

¶ 3 Regal, Cinemark, and AMC own and/or operate movie theaters in King County. They are all engaged in the business of exhibiting movies. Movie producers furnish most movies to the theater companies with embedded captions for both open and closed captioning. Theaters must then invest in technology to make those captions viewable to those who attend screenings.

¶ 4 In February 2009, WashCAP commenced this action.³ It asserted claims under chapter 49.60 RCW, the WLAD, claiming that the theaters were violating the statutory requirement that places of public accommodation provide reasonable accommodation for those with disabilities. WashCAP specifically argued that the theaters should provide captioning in the screening of those movies previously embedded with captions to accommodate the disability of those patrons who are deaf or hard-of-hearing. WashCAP sought declaratory and injunctive relief, reasonable attorney fees, and court costs.

¶ 5 Both WashCAP and the theaters moved for summary judgment. The trial court granted partial summary judgment for WashCAP and denied the theaters' motion for summary judgment in May 2010. The court concluded that the WLAD required movie theaters, as places of public accommodation, to take those steps reasonably possible under the circumstances to make movie soundtracks understandable to patrons with hearing loss. The court then limited the trial issues to “the question of what is a ‘reasonable accommodation’ for each Defendant.” ⁴

¶ 6 After the court's entry of partial summary judgment, Regal and Cinemark both converted all of their King County theaters from film to digital projection.⁵ For open captions to be displayed, in contrast to film projection, digital projection requires no special technology.⁶ Three technologies exist to display closed captions with digital projection.⁷

¶ 7 By February 2011, Regal and Cinemark equipped all of their theaters with equipment to display closed captions for all showings of all movies embedded with captions. Because of this conversion, Cinemark moved to dismiss WashCAP's request for declaratory relief. The trial court denied this motion.

¶ 8 In contrast to Regal and Cinemark, AMC had still not fully converted all of its King County theaters to digital projection by January 2011. At that time, it had only equipped three auditoriums in King County to show closed caption films using older technology.

¶ 9 The parties agreed to proceed to trial on written submissions.⁸ Following receipt of these submissions, the trial court heard oral arguments in May 2011.

¶ 10 Because of the increase in closed captioned screenings by Regal and Cinemark, WashCAP agreed that its injunctive relief claims as to these defendants was moot. But WashCAP still sought declaratory relief against them. Because AMC had not equipped all of its theaters with closed captioning technology, WashCAP sought both injunctive and declaratory relief against it.

¶ 11 Cinemark, joined by Regal, renewed its motion to dismiss WashCAP's claims as moot. All defendants also renewed arguments they had made previously in their summary judgment motions. These were that: (1) the imposition of a captioning requirement must come from an agency rather than a court of law; (2) a captioning mandate fashioned by a court of law would be a deprivation of their due process rights; (3) the declaratory relief WashCAP requested was not authorized by the declaratory judgment act; and (4) WashCAP was not entitled to attorney fees. The theaters also raised three new arguments: (1) the WLAD does not authorize declaratory relief; (2) “numerical standards are more appropriately determined by agency rule-making;” and (3) the claim for injunctive relief against AMC was not ripe.⁹

¶ 12 In July 2011, the trial court entered findings of fact, conclusions of law, and a final order. The court dismissed WashCAP's claims for injunctive relief against Regal and Cinemark, but granted it declaratory relief against all three theaters. It also granted injunctive relief against AMC.

¶ 13 Given AMC's overall net cash flow and the cost to equip all of its King County auditoriums with closed captioning technology, the court held that it was reasonable for AMC to undertake the same conversion that Regal and Cinemark had completed. It ordered AMC to do so within 90 days.

¶ 14 Finally, the court concluded that WashCAP was the prevailing party, entitled to reasonable attorney fees under the WLAD. In a separate order, the court awarded WashCAP attorney fees based on a lodestar amount adjusted by a contingency multiplier of 1.5. The award totaled $404,322.76.

¶ 15 Regal, Cinemark, and AMC appeal.

DISCRIMINATION

¶ 16 The theaters argue that the trial incorrectly interpreted the WLAD. They claim the WLAD does not regulate the accessibility of goods and services provided by places of public accommodation, as opposed to the accessibility of places of public accommodation themselves.¹⁰ We hold that the WLAD is not so limited.

¶ 17 Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ¹¹ This court reviews de novo a trial court's summary judgment order. ¹²

¶ 18 Here, the trial court granted partial summary judgment to WashCAP, concluding that, as a matter of law, defendant movie theaters are required to take steps reasonably possible to make the soundtracks of movies already embedded with closed captioning understandable to people with hearing loss. No party claims there were any genuine issues of material fact. Thus, the question is limited to whether the law supports the trial court's ruling.

Comparable Services

¶ 19 The WLAD bans discrimination because of “the presence of any sensory, mental, or physical disability....” ¹³ This right to be free from discrimination includes the right “to the full enjoyment of any of the accommodations, advantages, facilities, or privilegesof any place of public resort, accommodation, assemblage, or amusement.” ¹⁴

¶ 20 To make a prima facie case of public accommodation discrimination under the WLAD, a plaintiff must demonstrate: (1) that he has a disability; (2) that the defendant's place of business is a public accommodation; (3) that the defendant discriminated against the plaintiff by providing treatment not comparable to the level of services provided to individuals without disabilities; and (4) that the disability was a substantial factor causing the discrimination.¹⁵ The defendants do not dispute that their theaters are places of public accommodation, that WashCAP's members have a disability, or that this disability was a substantial factor in causing differential treatment. Rather, they contend that the treatment they provided WashCAP's members was not discriminatory, and that WashCAP thus did not satisfy the third element of a prima facie WLAD case.

¶ 21 Under the regulations created to carry out the policy enunciated in RCW 49.60.030, “same service” treatment of persons with disabilities is preferred. But “reasonable accommodation” may be required:

(1) Same service preferred. The purposes of the law against discrimination are best achieved when disabled persons are treated the same as if they were not disabled....

(2) Reasonable accommodation. The law protects against discrimination because of the “presence” of a disability. It does not prohibit treating disabled persons more favorably than nondisabled persons in circumstances where the same service will defeat the purposes of the law against discrimination.” [[¹⁶

The Washington Administrative Code (WAC) goes on to...