The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY CLASS, APPOINTMENT OF CLASS REPRESENTATIVES AND APPOINTMENT OF CLASS COUNSEL
Pending before the Court is Plaintiffs' "Motion to Certify Class, Appointment of Class Representatives and Appointment of Class Counsel" (Doc. 88). For the reasons set forth herein, the Court DENIES Plaintiffs' motion.
The named plaintiffs ("Plaintiffs") are individuals who use wheelchairs or other devices for mobility, and who are patrons of the well-known chain of restaurants owned by Defendant Chipotle Mexican Grill, Inc. ("Chipotle"). Chipotle's employees prepare its Mexican-inspired fare at a food preparation area located behind a service counter, within the view of customers standing in a food service line. Chipotle refers to the opportunity for customers standing in line to see the food offered for sale, and to witness the preparation of their meals according to their specifications, as the "Chipotle experience." Plaintiffs allege that at certain times between 2003 and the present, customers who use wheelchairs have been unable to participate equally in the "Chipotle experience," because service counter walls higher than 36 inches ("high counter walls") at restaurants throughout California blocked their view of the food preparation area.
Plaintiffs bring class action claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and California's Unruh Civil Rights Act (the "Unruh Act"), Cal. Civ. Code § 51 et seq. Plaintiffs seek injunctive relief requiring Chipotle to lower the counter walls and/or maintain lowered walls, minimum statutory damages of $4,000 for each offense, pursuant to California Civil Code § 52, and declaratory relief.
Plaintiffs move for class certification of the following class under Federal Rule of Civil Procedure 23:
All persons with mobility disabilities who use wheelchairs or other mobility aides, such as scooters, and who, because of their mobility impairments, have been or will be denied their rights under the ADA and state law to full and equal access to the goods, services, benefits, advantages, privileges and accommodations provided by Chipotle, at its restaurants within the State of California, because of approximately 45-inch high walls at the food preparation areas at any time from December 3, 2003 to the present. (Pl. Br. at 9 (Doc. 88-1).) Plaintiffs request that the Court appoint named plaintiffs Maurizio Antoninetti, James Perkins, Karen Friedman, Michael Rifkin, Susan Chandler, and Laura Williams as class representatives, and Amy B. Vandeveld and Thomas J. Vandeveld III as class counsel. (Id.)
Rule 23 requires the party seeking class certification to establish each of the four requirements of Rule 23(a), and to show that the proposed class falls within one of the three provisions of Rule 23(b). The Court addresses, as a preliminary matter, Defendant's argument that Plaintiffs' claim for injunctive relief is moot, before proceeding to the class certification analysis.
a. Defendant's mootness challenge
Defendant argues that Plaintiffs' putative class claim for injunctive relief is moot because the high counter walls no longer remain in any Chipotle restaurants in California. Based on the record, the Court agrees.
"A claim is moot if it has lost its character as a present, live controversy." United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th Cir. 1984) (citation omitted). Accordingly, [i]f an ADA "plaintiff has already received everything to which he would be entitled, i.e., the challenged conditions have been remedied, then these particular claims are moot absent any basis for concluding that this plaintiff will again be subjected to the same wrongful conduct by this defendant."
Rush v. Denco Enterprises, Inc., --- F. Supp. 2d ---, 2012 WL 1423584, at *3 (C.D. Cal. Apr. 23, 2012) (citing Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1087 (D. Hawai'i 2000) (internal quotations and citation omitted)).
Defendant supports its claims that "none of Chipotle's California restaurants have walls higher than 36 inches" (Opp. Br. at 3) with the Declaration of Scott L. Shippey, Manager of Sustainable Design for Chipotle Mexican Grill, Inc. (Doc. 128-10). Mr. Shippey states that, beginning in 2007, Chipotle implemented a design plan for its restaurants pursuant to which the height of the restaurants' counter walls would be set at "a little less than 36 inches high, so that the height of the new Wall would be in line with the adjacent point of sale counter where customers pay at the register." (Shippey Decl. ¶ 2.) Mr. Shippey also states that, as of June 30, 2011, "[a]ll Chipotle restaurants in California have the new 36-inch high wall in front of the food preparation counter" ...