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Barnes-Boers v. Tru 2005 Rei, LLC

United States District Court, E.D. California

April 10, 2014

TRU 2005 REI, LLC, Defendant.


CRAIG M. KELLISON, Magistrate Judge.

Plaintiff brings this civil action. The undersigned conducted a settlement conference on February 26, 2014. Plaintiff, Becky Barnes-Boers, appeared with counsel, Tamara Zaki, Esq., from the Center for Disability Access located in San Diego, California. Danielle Torok, corporate representative of defendant, TRU 2005 REI, LLC, was present and appeared with counsel Jerry J. Deschler, Esq., of Jackson Lewis P.C. of Sacramento, California. The case did not settle.


Following the completion of the settlement conference, the court in open session indicated that it intended to issue an Order to Show Cause to plaintiff's counsel why the court should not impose monetary sanctions relating to her vexatious conduct and lack of preparation at the settlement conference. The court requested that defendant and defendant's counsel submit a summary of attorney's fees and expenses related to their appearance at the settlement conference. The defendant has submitted said attorney's fees and expenses in the sum of $9, 349.44. (Docs. 13 and 15).

Prior to the court's issuance of the Order to Show Cause, plaintiff submitted a response entitled "Plaintiff's Opposition to Defense Request for Sanctions" (Opposition to Sanctions). Since plaintiff has preemptively responded to the anticipated Order to Show Cause, the court finds that the personal attendance of plaintiff's counsel is not necessary and the issue of imposing sanctions stands submitted. The court has considered defendant's Request for Sanctions (Doc. 13); plaintiff's Opposition to Sanctions (Doc. 14) and defendant's Response to Opposition (Doc. 15). The court initially intended to meet with plaintiff's counsel separately if the issue of confidentiality of the settlement conference was an issue. Since both plaintiff and defendant have chosen to freely summarize their recollection of events, however, the court feels free to address the issue of sanctions as follows.


The district court has the authority, both under its inherent power and under 28 U.S.C. § 1927, to impose monetary sanctions when counsel has willfully abused judicial processes or otherwise conducted litigation in bad faith. See Roadway Express, Inc. v. Piper , 447 U.S. 752, 766 (1980); see also Toombs v. Leone , 777 F.2d 465, 471 (9th Cir. 1985). Section 1927 provides: "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. This court's Local Rule 184(a) sets forth the procedures to be followed when such sanctions are being considered. Specifically, the rule provides: "In the event any attorney subject to these Rules engages in conduct that may warrant discipline or other sanctions, any Judge or Magistrate Judge may, after reasonable notice and opportunity to show cause to the contrary, take any other appropriate disciplinary actions against the attorney...."


Plaintiff brings this civil action pursuant to pursuant to 28 U.S.C. § 1331 and § 1343(a)(3) & (a)(4) for violations of the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. § 12101, et seq. Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Prohibited discrimination includes "a failure to remove architectural barriers, ... where such removal is readily achievable." Id . § 12182(b)(2)(A)(iv). As explained by the Ninth Circuit, the elements of a Title III discrimination claim are: (1) plaintiff's "disability, " (2) the defendant's private operation of a place of "public accommodation, " and (3) defendant's denial of public accommodations because of plaintiff's disability. See Molski v. M.J. Cable, Inc. , 481 F.3d 724, 730 (9th Cir. 2007). Where the plaintiff alleges denial of public accommodations because of an architectural barrier, the plaintiff must specifically show that: (a) an ADA-prohibited architectural barrier exists. and (b) the barrier's removal is readily achievable. See Pickern v. Pier 1 Imports (U.S.), Inc. , 339 F.Supp.2d 1081, 1085 (E.D. Cal. 2004), aff'd, 457 F.3d 963 (9th Cir. 2006); Parr v. L & L Drive-Inn Restaurant , 96 F.Supp.2d 1065, 1085 (D. Haw. 2000). For the first step of the analysis, the court turns to the Department of Justice's ADA Accessibility Guidelines ("ADAAG"). See 28 C.F.R. Pt. 36, App. A. Well-established precedent confirms that the ADAAG provide the standard for determining whether a defendant has violated the ADA. See Hubbard v. 7-Eleven, Inc. , 433 F.Supp.2d 1134, 1138 (S.D. Cal. 2006) (explaining that ADAAG "provide valuable guidance for determining whether an existing facility contains architectural barriers" (internal quotations omitted)); Wilson v. Pier 1 Imports (US), Inc. , 439 F.Supp.2d 1054, 1066 (E.D. Cal. 2006) ("compliance with the ADAAG, and not another standard, constitutes compliance with the ADAAG requirements").

The ADAAG regulations are divided into three categories. The first category of regulations requires that newly-constructed public accommodations must comply with specific accessibility requirements set forth in the ADAAG. See 28 C.F.R. Pts. 36.401, 36.406. The second category of regulations concerns the accessibility requirements imposed on public accommodations altered after January 26, 1992. See id. The third category requires the removal of architectural barriers in preexisting public accommodations. See 28 C.F.R. Pt. 36.304. "Under the ADA's continuing barrier removal obligation, it is discriminatory for owners, operators, lessors or lessees to fail to remove architectural barriers that deny disabled persons the goods and services offered to the general public." Wilson v. Pier 1 Imports (US), Inc. , 439 F.Supp.2d 1054, 1066 (E.D. Cal.2006).

Defendant in this case owns or operates a shopping center in southeast Chico, California, which is the location of the Toys "R" Us ("TRU") store. The TRU store was constructed prior to 1991. The TRU store is bordered on the north by East 20th Street, to the west by Business Lane, and to the east by Forest Avenue. Both vehicles and pedestrians can access the TRU store by each of these arteries. Sidewalks also parallel 20th Street, Business Lane, and Forest Avenue that permit wheelchair access into the parking areas that serve the TRU store and several other businesses located within the same square block.

From 20th Street, access by way of wheelchair to the TRU store can be accomplished by turning south from the sidewalk on 20th Street unto a sidewalk leading to the entrance of the TRU store parking area. Entering the TRU parking area from the sidewalk is accomplished by exiting on a sloped ramp unto a paved area that leads into any one of several routes that allow access to both vehicles or pedestrians. The paved area adjacent to the ramp is striped and marked in three locations requiring vehicles to stop for pedestrians entering the parking area. This access to the TRU store shall be referred to as the 20th Street access. From Business Lane, vehicles and pedestrians can access the TRU store by turning east from Business Lane into the general parking area that eventually leads to the TRU store by any one of several different routes (Business Lane access). At Forest Avenue, pedestrians and vehicles can access the TRU store by turning west off Forest Avenue onto a paved entry way and then traveling to and entering the TRU parking area at any one of several different routes (Forest Avenue access).

Plaintiff does not allege ADA violations or barriers exist at the TRU store entrance, namely at the south end of the TRU parking area where it joins with the store front. She also does not contend that the TRU parking area that provides her access to the TRU store is not level or is in a state of disrepair. As mentioned above, an individual desiring access to the TRU store from either 20th Street, Business Lane, or Forest Avenue can accomplish the same by traveling by way of any one of a half dozen routes which are all paved, sufficiently wide, and level.

In her complaint, plaintiff describes the access problem as "there [being] no accessible route of travel from the boundary of the site to the accessible building entrances." (Doc. 1; Compl. ¶ 8). During the settlement conference, plaintiff's counsel described the problem as not having a dedicated or separate route through the TRU parking area to accommodate wheelchair or handicap users, or in other words a route that would not have to be shared with vehicles accessing or utilizing the TRU parking area. Plaintiff's counsel was only able to address the alleged access problems from 20th Street ...

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