1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-03083-EMC

8 Plaintiff, ORDER DENYING DEFENDANTS’ 9 v. MOTION TO DISMISS

10 2008 SHATTUCK AVE, LLC, et al., Docket No. 14 11 Defendants.

12 13 14 Plaintiff Brian Whitaker has filed suit against Defendants 2008 Shattuck Ave, LLC and 15 Chahat. Chahat owns a restaurant, called Barbarian Grub and Ale, located at 2012 Shattuck 16 Avenue in Berkeley. Shattuck owns the real property where the restaurant is located. According 17 to Mr. Whitaker, Defendants have violated both the Americans with Disabilities Act (“ADA”) and 18 the Unruh Civil Rights Act. Currently pending before the Court is Defendants’ motion to dismiss. 19 Having considered the parties’ briefs, as well as the oral argument of counsel, the Court hereby 20 DENIES the motion. 21 In the instant case, Defendants make two arguments in support of their 12(b)(6) motion: 22 (1) dismissal is required by Whitaker v. Tesla Motors, Inc.,

(9th Cir. 2021) 23 (hereinafter Tesla), and (2) dismissal is required because the ADA provides for relief only where 24 there are “fixed in place dining tables,” Mot. at 4, and Mr. Whitaker has failed to include any 25 allegation in his complaint that the dining tables were fixed.1 Neither argument is persuasive. 26 Tesla is essentially a case about Twombly/Iqbal specificity. The Ninth Circuit held that 27 1 Whitaker's complaint did not allege facts sufficient to support his ADA claim because the complaint primarily recited legal 2 conclusions. The complaint alleges that Tesla "failed to provide accessible service counters," that Whitaker "personally encountered" 3 the inaccessible service counters, and that he was denied "full and equal access." These allegations do little more than recite the 4 elements of an ADA claim, and fall short of putting Tesla on notice of how the counters prevented Whitaker from full and equal access 5 to the Tesla facility. The complaint failed to answer basic questions: Were the service counters too low? Or too high? Were they 6 positioned in an area that was inaccessible for another reason? Without this sort of factual detail, the district court and Tesla were 7 left in the dark about how the service counters denied Whitaker from full and equal enjoyment of the premises. 8 9 Whitaker v. Tesla Motors, Inc.,

(9th Cir. 2021) (emphasis added). 10 In the instant case, Mr. Whitaker has not replicated the Tesla error. He has specified how 11 the dining tables did not comply with the ADA – i.e., “lack of sufficient knee or toe clearance 12 under the outside dining surfaces for wheelchair users.” Compl. ¶ 14. He has also specified how 13 the counter did not comply with the ACA – i.e., it was “too high” and there were “ice cream 14 freezers located in front of the sales counters, which obstruct[] the floor space needed by 15 wheelchair users.” Compl. ¶ 19. 16 As for Defendants’ second argument, Defendants maintain that “there are only ADA 17 standards for fixed in place dining tables.” Mot. at 4. If Defendants are asserting that there is no 18 1991 ADAAG Standard or 2010 ADAAG Standard that expressly addresses nonfixed/freestanding 19 tables, that may be true. See, e.g.,

(b) (providing that “[t]he 1991 Standards 20 and the 2010 Standards apply to fixed or built-in elements of buildings, structures, site 21 improvements, and pedestrian routes or vehicular ways located on a site”). But that does not mean 22 that the ADA allows for discrimination where there are nonfixed/freestanding tables. There is no 23 principled reason why the ADA – a statute that is intended to prohibit discrimination against those 24 would disabilities – would be limited to fixed tables but not free-standing ones. And in fact Title 25 III of the ADA, on its face, contains no limitation. See

(a) (providing that “[n]o 26 individual shall be discriminated against on the basis of disability in the full and equal enjoyment 27 of the goods, services, facilities, privileges, advantages, or accommodations of any place of public 1 accommodation”); cf. McIver v. Cal. Expo. & Fair, No. CV-S-01-1967 GEB KJM,

1541087, at *3 (E.D. Cal. June 28, 2005) (noting that defendant “RCS seeks summary judgment 3 on Plaintiffs' claims regarding the lack of sufficient accessible seating near RCS's foodstands since 4 ‘the requirement [under 1991 ADAAG 4.1.3(18) that five percent of seating be accessible] only 5 applies to fixed or built-in seating or tables’[;] [but] [e]ven if ADAAG 4.1.3(18) does not apply, 6 RCS must nonetheless ‘remove architectural barriers ... where such removal is readily 7 achievable’” pursuant to

(b)(2)(A)(iv)). 8 Indeed, several courts have ruled that the ADA provides protections even if there is no 9 directly applicable regulation setting a specific standard. See, e.g., Whitaker v. AMT Tech, Inc., 10 No. C-21-3045 JD (N.D. Cal.) (Docket No. 18) (Order at 2) (acknowledging that “the ADA 11 regulations provide specifications for knee and toe clearance for ‘fixed or built in seating or 12 tables,’” but that does not mean that “the ADA in general applies only to fixed or built in 13 architectural elements, as AMT would have it[;] [t]he regulations do not vitiate the broader duty 14 imposed on public accommodations to ‘take reasonable steps to provide disabled guests with a 15 like experience’”); Whitaker v. Daryoush Rest., LLC, No. C-21-3040 JST (N.D. Cal.) (Docket No. 16 19) (Order at 3) (noting that, “under Daryoush’s theory that the ADA standards apply only to 17 tables and chairs fixed in place, any restaurant could avoid accessibility standards by having only 18 movable tables and chairs available for seating”; “reject[ing] Daryoush’s interpretation of the 19 ADA standards because it contradicts both common sense and prior case law”); cf. Whitaker v. 20 Easterly-Berkeley Corp., No. C-21-3038 WHO (N.D. Cal.) (Docket No. 15) (Order at 5) (allowing 21 the case to proceed “on the theory that, regardless of compliance with the fixed-tables 22 requirement, Easterly was under an independent obligation to remove inaccessible barriers, which 23 might require that some movable tables be accessible (if, perhaps, there were no fixed tables), as 24 McIver held”; adding, however, that “[t]his decision does not necessarily endorse that theory” but 25 instead “is based on Easterly’s failure to respond to Whitaker advancing it in his brief, the 26 recognition that it seems a plausible legal theory, and the reality that the parties have not addressed 27 many of the issues necessary to resolve the scope of this part of the ADA in any detail”). 1 held to standards not precisely articulated in the ADAAG Standards, the Court does not agree. As 2 Mr. Whitaker pointed out at the hearing, in Robles v. Domino’s Pizza, LLC,

(9th Cir. 3 2018), the Ninth Circuit held that the ADA is not “vague” – i.e., “‘so indefinite in its terms that it 4 fails to articulate comprehensible standards to which a person’s conduct must conform.’”

at 5 906. Rather, “[t]he ADA articulates comprehensible standards . . . . Since its enactment in 1990, 6 the ADA has clearly stated that covered entities must provide ‘full and equal enjoyment of the[ir] 7 goods, services, facilities, privileges, advantages, or accommodations’ to people with disabilities, 8

(a).”

; see also

(indicating that “‘[t]he lack of specific 9 regulations [regarding website accessibility] does not eliminate [defendant's] obligation to comply 10 with the ADA or excuse its failure to comply with the mandates of the ADA’”). Moreover, it 11 strains credulity for Defendants to suggest that they considered the ADAAG Standards and 12 believed that, because they applied on their face to fixed tables, they were therefore free to 13 discriminate where nonfixed/freestanding tables were at issue.2 14 The government publications on which Defendants rely also do not advance their position. 15 Although the Court may take judicial notice of the publications, such notice is limited to the fact 16 that the publications exist; the Court need not credit the contents of the publications as being 17 correct on the law. See Eckert v. Donahue Schriber Co.,

, at *8-9 18 (E.D. Cal. Aug. 6, 2003) (in discussing DOJ manual addressing requirements of ADA Title III, 19 stating that “[a]gency interpretations of regulations that are contained in materials such as agency 20 manuals are entitled to respect under [the Supreme Court's] decision in Skidmore v. Swift & Co., 21

(1944), but only to the extent that those interpretations have the power to 22 persuade”) (internal quotation marks omitted). And in any event, the government publications do 23

24 2 At the hearing, Plaintiffs suggested that they could rely on the ADAAG Standards to provide (at the very least) guidance as to what should be required for knee and toe clearance for 25 nonfixed/freestanding tables. The Court does not decide at this juncture whether and to what extent the ADAAG standards would apply. See Robles,

(indicating that there 26 were no “fair notice concerns” because, “[a]t this stage, Robles only seeks to impose liability on Domino's for failing to comply with § 12182 of the ADA, not for the failure to comply with a 27 regulation or guideline of which Domino's has not received fair notice”; but also indicating that 1 not state that a person or entity who runs a food establishment has ADA obligations only if tables 2 are fixed. See, e.g., ADA Guide for Small Businesses (providing guidance for “Fixed Seating and 3 Tables” – e.g., “[i]f tables are provided . . . and the tables are attached to the wall or floor (fixed), 4 then 5% of the tables or at least one (if less than 20 are provided) must be accessible, if doing so is 5 ready achievable,” and “[a]n accessible table . . . [is] no less than 28 inches above the floor,” with 6 “[a]t least 27 inches of knee clearance”); ADA Update: A Primer for Small Business (addressing 7 at page 14 “Food and Restaurant Services”; stating that “[p]eople with disabilities need to access 8 tables”). 9 For the foregoing reasons, the motion to dismiss is denied. Defendants are ordered to file a 10 response to the complaint within 30 days of the date of this order. 11 This order disposes of Docket No. 14. 12 13 IT IS SO ORDERED. 14 15 Dated: August 19, 2021 16 17 ______________________________________ EDWARD M. CHEN 18 United States District Judge 19 20 21 22 23 24 25 26 27