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Discriminatory Intent Must Be Proved in Disability Access Cases Under Unruh Act, California Court Rules
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February 5, 2007
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By Ellen M. Papadakis
Thelen Reid Brown Raysman & Steiner LLP
The California Court of Appeal held recently that the $4,000 minimum statutory damages under Civil Code §52 to redress violations of the Unruh Civil Rights Act are available only in cases of intentional discrimination. Gunther v. Lin, 144 Cal.App.4th 223 (2006).
This is the first published California court decision to provide substantial settlement leverage to California defendants striving in good faith to comply with design standards implemented under the federal Americans with Disabilities Act and known as the ADA Accessibility Guidelines (or ADAAG), 28 CFR Part 36, Appendix A.
The facts in the case follow a pattern familiar to any business on the receiving end of a disability access case: A person who uses a wheelchair for mobility alleged that, while visiting the defendant's place of public accommodation, he encountered certain technical ADAAG violations. In the Gunther case, the place of public accommodation was a Jack-in-the Box restaurant owned by defendant John Lin. Plaintiff Gunther reportedly encountered: (1) a lack of insulation of the pipes under the restroom sink and (2) a bathroom mirror that, by ADAAG standards, was hung too high. Accordingly, Gunther sought $4,000 in minimum statutory damages under §52 for each of the two alleged ADAAG violations plus attorney fees and costs.
Lin disclaimed any intent to have violated the ADAAG standards. Lin argued that Gunther had visited the restroom just before the completion of remodeling and "before [Lin's] handyman had finished his work" of wrapping insulation around the pipe under the sink. In addition, Lin claimed that the restroom ordinarily did not have a mirror for anyone due to repeated vandalism; an employee simply had hung a mirror in error. Relying on the California Supreme Court's decision in Harris v. Capital Growth Investors XIV, 52 Cal.3d 1143 (1991), which requires a plaintiff under the Unruh Act to plead and prove intentional discrimination in public accommodations, Lin sought summary judgment because his lack of discriminatory intent foreclosed Gunther's claim for minimum statutory damages under §52.
Gunther conceded in his opposition to the summary judgment motion that Lin did not intentionally violate the ADAAG standards. Nonetheless, Gunther claimed that the Unruh Act's incorporation of the ADA (Civil Code §51(f)) in 1992 superseded the intent requirement judicially imposed by Harris. The trial court rejected Gunther's argument and granted the defense motion for summary judgment. Gunther appealed.
The 4th District Court of Appeal affirmed, holding that Harris requires a plaintiff seeking the $4,000 minimum statutory damages under §52 to establish intentional discrimination. The Court of Appeal examined both the language of the 1992 amendment to the Unruh Act with regard to the triggering language of §52 and the parallel availability of minimum statutory damages - albeit at the less-enticing level of $1,000 per violation - available under the California Disabled Persons Act, Civil Code §54.3.
The court acknowledged that acceptance of the plaintiff's position would mean that the Legislature intended to subject California businesses "to the worst of all possible worlds: (1) the strict liability of the ADA architectural guidelines but without the counterbalancing limitations in the ADA disallowing private enforcement, combined with (2) the minimum $4,000 penalty of California's section 52 but without the counterbalancing protection established by Harris. requiring intentional conduct for the minimum penalty under section 52 to be triggered." The court rejected the notion that the Legislature intended to impose such an onerous burden for technical violations of the ADAAG standards.
Gunther may have a significant impact on garden-variety disability access cases in California. State and federal courts in California and elsewhere have commented on the abuse of the ADA and the proliferation of disability access suits for the sole purpose of financial profit. See, e.g., Gunther, 144 Cal.App.4th at 251; Doran v. Del Taco, Inc., 2006 WL 2037942 (C.D. Cal. 2006); Rodriguez v. Investco LLC, 305 F.Supp.2d 1278, 1280-1281 (M.D. Fla. 2004); and Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860 (C.D. Cal. 2004).
The vast majority of these cases are filed with the objective of extracting a quick settlement, particularly when the technical violations are plain, liability is clear and the prospect of quickly-mounting attorney fees on both sides (all of which will be borne by the defendant) compel businesses rationally to conclude that resolution is in their financial interest. Now, under Gunther, the exposure to businesses that have attempted in good faith to comply with the ADAAG requirements in upgrading and remodeling their facilities despite some minor technical violation has been reduced by 75 percent.
Even so, California business owners should remain diligent in their efforts to remove architectural barriers and to keep their facilities in compliance. Indeed, Gunther noted that in certain cases, "such as new construction or remodeling, a failure to provide for sufficient space for toilet stalls would be so obvious as to implicate at least a prima facie case of discriminatory intent." Similarly, when a business has a common current of multiple ADAAG violations running through multiple facilities, disability access plaintiffs are likely to argue that a pattern and practice of intentional discrimination exists, thereby entitling them to the $4,000 statutory damages under §52. To maximize the ability to assert Gunther's limitation successfully, business owners will find it helpful to engage in an ongoing compliance program to defuse any contention that overlooked technical ADAAG violations were the result of intentional discrimination.
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For more information about the issues covered in this report, please contact Ellen M. Papadakis in our San Francisco office at 415-369-7347 or at empapadakis@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2007 Thelen Reid Brown Raysman & Steiner LLP
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