Timothy Vondersaar v. Starbucks Corporation et al
Filing
97
ORDER by Judge Dean D. Pregerson GRANTING Defendants's Motion to Dismiss #81 in part and DENYING in Substantial part. All claims related to stores constructed after 2005 are DISMISSED. In all other respects, Defendant's Motion to Dismiss is DENIED. (jp)
<![CDATA[
1
2
O
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
TIMOTHY VONDERSAAR,
individually and on behalf
of other members of the
general public similarly
situated,
14
Plaintiff,
15
16
v.
STARBUCKS CORPORATION, a
Washington corporation,
17
Defendants.
18
___________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 12-05027 DDP (FMOx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS IN PART AND DENYING IN
SUBSTANTIAL PART
[Dkt. No. 81]
19
20
Presently before the court is Defendant’s Motion to Dismiss
21
Plaintiffs’ First Amended Complaint.
22
submissions of the parties and heard oral argument, the court is
23
denies the motion in substantial part, grants the motion in part,
24
and adopts the following order.
25
I.
26
Having considered the
Background
Plaintiffs Timothy Vondersaar, Orlandis Hardy, Jr., Jaarome
27
Wilson, and Bernard Taruc (collectively, “Plaintiffs”) are
28
quadriplegics, and require wheelchairs for mobility.
(First
1
Amended Complaint (“FAC”) ¶¶ 41, 43, 45, 47.)
2
operates over 1,000 coffee shops in California.
3
Plaintiffs allege, on behalf of a putative class of wheelchair and
4
electric scooter users, that an unspecified number of Defendant’s
5
stores feature pick-up counters that are too high for Plaintiffs to
6
reach, in violation of the Americans with Disabilities Act, 42
7
U.S.C. § 12181 et seq., and Calfornia’s Unruh Civil Rights Act,
8
Cal. Civ. Code § 51 et seq.
9
Defendant owns or
(FAC ¶ 35.)
(FAC ¶¶ 5, 64, 71).
Plaintiffs further allege that, prior to 2005, Defendant used
10
standard design plans that included impermissibly high pick up
11
counters.
12
agreed to install ADA-compliant counters in all new construction,
13
but chose not to lower pre-existing noncompliant counters.
14
8.)
15
use unlawfully high counters.
16
eighteen Southern California Starbucks locations at which they
17
personally encountered noncompliant counters.
18
48-49.)
19
that plaintiffs believe to contain high counters, though Plaintiffs
20
have not themselves visited those stores.
21
now moves to dismiss all claims related to stores Plaintiffs have
22
not personally visited.
23
II.
24
(FAC ¶ 5).
After 2005, the FAC alleges, Defendant
(FAC ¶
As a result, “hundreds” of Defendant’s stores still allegedly
(FAC ¶ 9.)
Plaintiffs identify
(FAC ¶¶ 42, 44, 46,
Plaintiffs identify fifty other Southern California stores
(FAC ¶ 51.)
Defendant
Legal Standard
A complaint will survive a motion to dismiss when it contains
25
“sufficient factual matter, accepted as true, to state a claim to
26
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
27
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
28
570 (2007)).
When considering a Rule 12(b)(6) motion, a court must
2
1
“accept as true all allegations of material fact and must construe
2
those facts in the light most favorable to the plaintiff.”
3
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
4
III. Discussion
Resnick
5
A.
6
As stated in this court’s earlier order granting Defendant’s
Standing to Assert Class Claims
7
first motion to dismiss, to establish standing, an ADA plaintiff
8
seeking injunctive relief must show that he has suffered an injury
9
in fact, that the injury is traceable to the defendant’s actions,
10
that the injury can be redressed by a favorable decision, and that
11
there is a real threat of repeated future injury.
12
1 Imports, 631 F.3d 939, 946 (9th Cir. 2011).
13
can show a likelihood of future injury when he intends to return to
14
a noncompliant accommodation,” or, alternatively, “when
15
discriminatory architectural barriers deter him from returning.”
16
Id. at 950.
17
assert claims regarding stores they have not visited because they
18
have not alleged a threat of future injury at those stores.
19
at 4.)
20
Chapman v. Pier
“[A]n ADA plaintiff
Defendant argues that Plaintiffs lack standing to
(Mot.
As pointed out in this court’s earlier order, courts in this
21
circuit have held that a Plaintiff bringing class claims based upon
22
a common discriminatory policy or practice need not personally
23
encounter all of the challenged barriers to access.
24
Burger King Corp., 597 F.Supp.2d 1035, 1041-45 (N.D. Cal. 2009);
25
Arnold v. United Artists Theater Circuit, Inc., 158 F.R.D. 439,
26
448-49 (N.D. Cal. 1994); Celano v. Marriott Int’l, Inc., No. C 05-
27
4004 PJH, 2008 WL 239306 at *7 (N.D. Cal. Jan. 28, 2008).
28
Castaneda court reasoned, when a complaint alleges discrimination
3
Castaneda v.
As the
1
arising from a single, common policy, “the specific injury under
2
the ADA is not a specific barrier at a specific site but instead
3
the discriminatory policy or design or decision.”
4
F. Supp. 2d at 1043.
5
specific,” and a purported class representative’s standing is not
6
limited to locations actually visited.
7
Ralph’s Grocery Co., 254 F.R.D. 112, 119 (C.D. Cal. 2008).
8
9
Castaneda, 597
Thus, “ADA standing is not necessarily site
Id. at 1041, 1045; Park v.
Defendant fails to address, let alone distinguish, Castaneda
or its reasoning.
The out of circuit authorities Defendants do
10
cite are not persuasive.
11
dismissed allegations regarding locations an ADA plaintiff had not
12
yet visited because the plaintiff did not allege any common
13
construction plan or accessibility policy.
14
Corp. 255 F. Supp. 2d 334, 343 (D. N.J. 2003).
15
acknowledged, however, that “[i]f, on the other hand, there existed
16
an allegation that all Burger King restaurants are similar, in that
17
they possess commonality of architecture, or that they implement a
18
corporate policy violative of the ADA, Clark may have standing as
19
to restaurants he has yet to visit.”1
In Clark v. Burger King Corp., the court
Clark v. Burger King
The court
Id., n.11.
Similarly, none
20
1
21
22
23
24
25
26
27
28
The Clark court further stated, “Moreover, Clark fails to
demonstrate an intent to return to, or a likelihood of future
injury at, locations he has yet to visit, and thus, does not
satisfy the injury in fact requirement to establish standing with
respect to these restaurants. Clark, 255 F. Supp. 2d at 343.
Because the Clark court’s “moreover” statement regarding intent
immediately follows its footnote regarding adequacy of standing in
common architecture scenarios, it is unclear to this court whether,
as Defendant posits, the Clark court determined that intent to
visit future stores is required even in class cases alleging a
common violative policy. Even if the Clark court did so suggest,
however, that conclusion would rest upon the court’s earlier
conclusion that ADA barrier actions are site specific. Id., n. 10.
As discussed above, this court, in accordance with courts in this
circuit, concludes otherwise. For those same reasons, the court
(continued...)
4
1
of the plaintiffs in Small v. General Nutrition Companies, Inc.,
2
388 F. Supp. 2d 83 (E.D. N.Y. 2005) or Gutherman v. 7-Eleven, Inc.,
3
278 F. Supp. 2d 1374 (S.D. Fla. 2003) alleged any common policy or
4
construction plan.2
5
For that same reason, the Seventh Circuit’s holding in Scherr
6
v. Marriot Int’l, Inc., 703 F.3d 1069 (7th Cir. 2011) is not
7
applicable.3
8
over fifty hotel locations was itself insufficient to confer
9
standing regarding those hotels in the absence of an alleged intent
The court held that knowledge of ADA violations at
10
to visit those hotels.
11
characterization, however, the Plaintiff in Scherr did not allege a
12
“common design or policy,” (Reply at 5), but only a “common
13
architectural defect.”
14
2d 945, 956 (N.D. Ill. 2011); See also Equal Rights Center v.
15
Hilton Hotels Corp., No. 7-1528 (JR), 2009 WL 6067336 at *7 (D.
16
D.C. Mar. 25, 2009) (“[Plaintiffs] do not allege any facts . . .
17
that support their claim that Hilton has adopted a policy of non-
18
compliance with the ADA. . . .
19
barriers at some significant percentage of Hilton hotels might
20
provide a sufficient factual basis for claims of a corporate policy
(Id. at 1075.)
Contrary to Defendant’s
Scherr v. Marriot Int’l, Inc., 833 F. Supp.
The mere existence of accessibility
21
22
23
24
25
1
(...continued)
respectfully disagree with the Seventh Circuit’s holding in in
Scherr v. Marriot Int’l, Inc., 703 F.3d 1069 (7th Cir. 2011),
discussed infra.
2
26
27
28
Indeed, the Gutherman plaintiffs failed to allege any
specific disability or particular injury, and therefore did not
establish even individual standing. Gutherman, 278 F. Supp. 2d at
1379.
3
Plaintiffs do not address Scherr.
5
1
of non-compliance, but, as before, the plaintiffs have not made
2
that allegation.”).
3
B.
Common Policy Allegations
4
Defendant further argues that Plaintiffs have failed to
5
adequately allege a standard, common, noncompliant ADA policy.
6
(Reply at 7.)
The court agrees, in part.
7
The FAC alleges that “prior to 2005, Starbucks used standard,
8
common design modules/schemes in its stores that contained a . . .
9
hand-off/pick up counter far above the height permitted under the
10
Americans with Disabilities Act.”
11
alleges that Starbucks’ design committee “uniformly orchestrated
12
and approved the use of the common design modules/schemes
13
containing the high hand-off/pick up counters.”
14
Plaintiffs allege that Starbucks made a single policy decision in
15
2005 not to renovate stores and lower noncompliant counters.
16
¶¶ 8, 10.)
17
(FAC ¶ 5.)
The FAC further
(FAC ¶ 6.) Lastly,
(FAC
While these allegations adequately identify a common violative
18
policy, that policy only applied to stores constructed before
19
2005.4
20
California Starbucks locations, regardless of construction date.
21
Plaintiffs’ factual allegations are not broad enough to encompass
22
all of Starbucks stores.
23
facts regarding stores constructed after 2005, all claims regarding
24
such stores must be dismissed.5
25
The FAC, however, brings claims pertaining to all
C.
Because Plaintiff has not alleged any
State Law Standing
26
4
27
28
At oral argument, Plaintiffs’ counsel indicated that
Starbucks changed its construction policy in 2003, not 2005.
5
See n.4, supra.
6
1
Defendant’s motion to dismiss makes no mention of Plaintiffs’
2
state law claim.
Nevertheless, Plaintiffs’ opposition raises the
3
issue of standing with respect to their state law claim, apparently
4
for purposes of ensuring class discovery in the eventuality of an
5
adverse ruling regarding ADA standing.
6
contention is somewhat puzzling.
7
by Defendant, stands for the unremarkable proposition that a
8
plaintiff only has standing under the Unruh Act if he is the victim
9
of a discriminatory act.
Defendant’s reply to this
Surrey v. Truebeginnings, cited
Surrey v. Truebeginnings, 168 Cal. App.
10
4th 414, 419 (2008).
11
instant case is not appropriate for class treatment, that issue is
12
not presently before the court.
13
courts regularly certify class actions under the Unruh Act.
14
e.g. Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613 (N.D. Cal.
15
2004).
16
To the extent Defendant argues that the
The court notes, however, that
See,
In any event, insofar as the parties raise this issue for
17
discovery-related purposes, the court having determined that
18
Plaintiffs do have standing to pursue class claims regarding stores
19
constructed before 2005, this issue appears to be moot.6
20
21
22
23
24
///
25
///
26
///
27
28
6
See n.4, supra.
7
1
2
III. Conclusion
For the reasons stated above, Defendant’s Motion is GRANTED in
3
part and DENIED in part.
All claims related to stores constructed
4
after 2005 are DISMISSED.7
5
Motion to Dismiss is DENIED.
In all other respects, Defendant’s
6
7
8
IT IS SO ORDERED.
9
10
11
Dated: August 26, 2013
DEAN D. PREGERSON
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
See n.4, supra.
8
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
