The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING IN PART MOTION FOR CLARIFICATION
Plaintiffs have filed a motion for reconsideration and/or clarification of the Court's Order Denying Plaintiff's Motion to Certify Class, Appointment of Class Representatives and Appointment of Class Counsel ("Order") (Doc. No. 145). For the reasons discussed below, the Court denies the motion for reconsideration but grants in part Plaintiffs' motion for clarification.
Previously, the Court denied class certification. The Court held that class certification was not authorized under Rule 23(b)(2) because Plaintiffs' claims for injunctive relief and corresponding declaratory relief were moot. The Court further held that certification was not proper under Rule 23(b)(3) because individual issues regarding liability for damages would predominate, and a class action would not be superior to other available methods for fairly and efficiently adjudicating the controversy before the Court. In their motion for reconsideration, Plaintiffs argue that certification with respect to the claims for declaratory relief and damages is appropriate under Rule 23(b)(3), or, in the alternative, that the Court should certify the class for declaratory relief only under Rule 23(c)(4).
In its Order, the Court reasoned that Plaintiffs' claim for injunctive relief and declaratory relief were moot based on the fact that Defendant has remedied the architectural barrier at issue in this litigation (a high counter wall) and the Ninth Circuit has already decided that the high counter walls violated the ADA Guidelines. See Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1172 (9th Cir. 2010). Plaintiffs argue that declaratory relief is necessary because Chipotle allegedly denies the preclusive effect of the Ninth Circuit decision, and district courts have discretion whether to apply offensive non-mutual collateral estoppel. See Appling v. State Farm Mut. Auto Ins., 340 F.3d 769, 775 (9th Cir. 2003).
The discretionary nature of offensive non-mutual collateral estoppel would lend support to Plaintiffs' argument regarding the necessity of declaratory relief if the prior ruling were by another district court. Here, however, the Ninth Circuit Court of Appeals issued a published decision holding that Chipotle's 45-inch high counter walls did not comply with Guideline § 7.2, and therefore violated the ADA. A published decision by the Ninth Circuit Court of Appeals constitutes "binding authority which 'must be followed unless and until overruled by a body competent to do so." Gonzalez v. Arizona, 677 F.3d 383, 390 n. 4 (9th Cir 2012) (en banc) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)). "A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue . . . ." Hart, 266 F.3d at 1170.
District courts in California are not likely to deviate from the Ninth Circuit's holding that Chipotle's high counter walls violated the Guidelines. Therefore, declaratory relief is not necessary.
In the Order, the Court held that certification under Rule 23(b)(3) was improper because individual issues regarding liability for damages would predominate. The Court explained:
It requires each class member to establish which Chipotle restaurant he visited, when he visited it, and whether he traveled the food service line -- all as to each particular occasion for which that class member seeks damages. Moreover, the mere fact that an individual in the food service line used a wheelchair for mobility does not mean that the high counter walls necessarily blocked that individual's view of the food preparation area. . . . Accordingly, for each particular occasion, the class member must establish that he was actually unable to see his food prepared, which in turn will require at least proof of how high the counter wall was at the time of the visit (Plaintiffs have alleged only that the high counter walls were "approximately" 46 inches high (FAC ¶ 2)), and how high the class member sat in his wheelchair at the relevant time. (Order Denying Class Certification at 10:1-5.)
Plaintiffs argue that the Ninth Circuit has already determined that the "average eye level of persons in wheelchairs is 43 to 51 inches above the restaurant floor and that, at a distance of 12 inches from the wall, a person at any height within that average range cannot see the food preparation counter or the food on display there." (Mem. of P. & A. in Support of Motion for Reconsideration at 11:2-5.) Therefore, Plaintiffs argue, all that would be left to prove on an individual basis is whether the class member uses a wheelchair or scooter, whether he visited a non-compliant location during the relevant time period, and whether the wall interfered with his view of the food on display or the making of his order while normally seated. (Id. at 11:6-10.)
However, the Ninth Circuit did not "determine" that the average eye level of persons in wheelchairs is 43 to 51 inches and that at a distance of 12 inches from the wall, a person within that range of height would not be able to see the food preparation counter or the food on display. The Ninth Circuit stated that the parties stipulated to these facts. Antoninetti, 643 F.3d at 1170. Generally, stipulated facts, which are not actually litigated in an action, are not given preclusive effect unless the parties have manifested an intention that the stipulation be binding in subsequent actions. Sekaquaptewa v. MacDonald, 575 F.2d 239, 247 (9th Cir. 1978).*fn1
Even setting aside the issue of the stipulated facts, individual issues predominate for the reasons set forth in the Court's Order Denying Class Certification. To establish liability for damages, the individual would need to establish which Chipotle restaurant he visited, the dates of the visits, that he visited to purchase food and/or have the "Chipotle experience," the counter wall was noncompliant at the time of the visit(s), that he entered the food line, that he was unable to see the food arranged on the food counter or the preparation of his order (whether proved by stipulated facts or otherwise), and that he would have been able to see the food prepared or on display if the wall were 36 inches. Questions of law or fact common to potential class members do not predominate over the factual questions affecting only individual members.
Furthermore, as explained in the Court's Order, a class action would not be superior to individual actions. Because the Unruh Act allows minimum statutory damages in the amount of $4,000 for each particular occasion in addition to attorney's fees and costs to the prevailing party, plaintiffs and their attorneys have plenty of incentive to pursue individual lawsuits. See, e.g., Castano v. The American Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996) ("The expense of litigation does not necessarily turn this case into a negative value suit, in part because the prevailing party may recover attorneys' fees under many consumer protection statutes."); Mayo v. Sears, Roebuck & Co., 148 F.R.D. 576, 583 (S.D. Ohio 1993) ...