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Yates v. Sweet Potato Enterprises, Inc.

United States District Court, Ninth Circuit

July 30, 2013

CRAIG YATES, an individual, Plaintiff,
SWEET POTATO ENTERPRISES, INC., a California corporation dba POPEYES STORE # 2794; et al., Defendants.

AMENDED ORDER RE MOTIONS IN LIMINE Supersedes Dkt. 59 Dkt. 41, 45


Plaintiff Craig Yates ("Plaintiff"), a disabled individual, alleges that he was denied equal access to a Popeyes Louisiana Kitchen ("Popeyes") fast food outlet in San Francisco, in violation of the federal American with Disabilities Act ("ADA"), as well as various California statutes. He brings the instant action against Sweet Potato Enterprises Inc. ("Defendant"), the owner of the Popeyes franchise at issue, seeking, inter alia, damages and injunctive relief. The parties are presently before the Court on the parties' respective motions in limine. Having read and considered the papers submitted, the Court: DENIES Plaintiff's motions in limine nos. 1 through 6; GRANTS Plaintiff's motions in limine nos. 7 and 8; and GRANTS IN PART and DENIES IN PART Defendant's motion in limine.



Plaintiff, through his attorney Thomas E. Frankovich, has filed numerous actions in this Court against various business establishments, claiming that they fail to provide equal access for disabled persons.[1] Plaintiff and Mr. Frankovich filed the instant action against Defendant on April 21, 2011, asserting claims for denial of access in violation of: (1) the ADA; (2) California Civil Code §§ 54, 54.1 and 54.3; and (3) California's Unruh Civil Rights Act. Dkt. 1.

On June 6, 2012, Plaintiff filed a First Amended Complaint for Injunctive Relief and Damages ("FAC"). Dkt. 19. The FAC alleges that Plaintiff is a wheelchair-bound "triplegic" who encountered "architectural barriers" during the course of various visits to Defendant's Popeyes outlet located at 599 Divisidaro Street in San Francisco. Among other things, Plaintiff claims that the double doors "had excessive pressure" making it difficult for him to enter the premises, FAC ¶ 14; that he "encountered a service counter that was too high for transactions, " id. ¶ 15; and that he "encountered [sic] lack of accessible seating for the disabled, " id. ¶ 16. Plaintiff alleges that he encountered these barriers on March 8, 2011, March 21, 2011, March 30, 2011, April 5, 2011, April 12, 2011, April 26, 2011, April 30, 2011, May 4, 2011, May 13, 2011, June 29, 2011, July 20, 2011, September 8, 2011, September 28, 2011, January 8, 2012, March 11, 2012 and May 14, 2012. Id . ¶ 13. As relief, Plaintiff seeks, inter alia, an injunction compelling Defendant to modify the premises to make them "readily accessible" to disabled persons and monetary damages for the "mental distress" he allegedly suffered as a result of encountering the aforementioned barriers. Id. at 26-28.

Defendant counters that Plaintiff's claims are frivolous. In particular, Defendant claims that its store is in compliance with federal and state disability access laws and that the modifications demanded by Plaintiff are, in any event, unreasonable and not "readily achievable."[2] Moreover, Defendant alleges that Plaintiff and his counsel are vexatious litigants who have filed hundreds of similar lawsuits against small businesses, making the same type of boilerplate allegations, in an effort to "extort" settlements from them. In particular, Defendant alleges-and Plaintiff does not dispute-that since 2007, Plaintiff has filed over 168 disability access lawsuits throughout California using the same cut-and-pasted allegations with identical claims of injury.


Trial in this action is set to commence on July 23, 2013. In anticipation thereof, Defendant has filed a motion in limine to exclude "sympathy-inducing" evidence regarding Plaintiff's disability; namely, testimony concerning how he became disabled and his day-to-day challenges as a disabled person.

Plaintiff has filed eight motions in limine. His first six motions collectively move to exclude evidence relating to his prior litigation activities. The final two motions seek to exclude recently disclosed surveillance videos, one showing Plaintiff and another disabled customer, patronizing Popeyes on August 24, 2012.



Defendant moves to exclude any "sympathy-inducing evidence or testimony regarding Plaintiff's disability that is not relevant to prove or disprove disputed facts that are of consequence to the determination of this action." Def.'s Mot. at 2, Dkt. 41. Defendant indicates that it is willing to stipulate that Plaintiff is a physically-disabled person within the scope of the ADA and state laws that form the basis of this action. In view of such stipulation, Defendant contends that specific testimony regarding Plaintiff's disability-including how he became disabled and his day-to-day difficulties as a disabled person-are unnecessary and will be unduly prejudicial within the meaning of Federal Rule of Evidence 403.[3]

With regard to evidence concerning how Plaintiff became disabled, Plaintiff states that he has stipulated not to introduce any such evidence. Pl.'s Opp'n at 2, Dkt. 46. The Court therefore ...

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