Whitaker v. Sivongsa

Background

Brian Whitaker, who is quadriplegic and uses a wheelchair, alleged that he visited a San Francisco-based coffee shop owned by Bounsom Sivongsa in October 2020. He alleged that the shop’s tables lacked enough knee or toe clearance for wheelchair users, denying him full and equal access. His complaint asserted claims under the Americans with Disabilities Act and California’s Unruh Civil Rights Act.

Motion and arguments

Sivongsa moved to dismiss Whitaker’s Americans with Disabilities Act claim on mootness grounds. Mootness means that a dispute no longer presents a live issue for the court to decide. Sivongsa argued that the claim sought only an order requiring access improvements and that the alleged barrier had been removed. He explained that the shop had offered only outdoor dining during the relevant period because of state and local COVID-19 health orders, no longer offered outdoor dining, and had indoor tables that complied with the Act. He relied on a certified access specialist’s inspection stating that at least one of the shop’s six indoor dining tables was wheelchair accessible.

Whitaker argued that dismissal would be premature. He noted that the shop had not shown outdoor dining could not return if health orders again restricted indoor dining. He also argued that he needed a reasonable opportunity to inspect the property with his own expert and respond to the access specialist’s conclusions.

Court’s reasoning

The court explained that a claim is moot only when it is absolutely clear that the alleged wrongful conduct could not reasonably be expected to happen again. The court found that showing had not been made because changing health orders could lead the shop to resume outdoor dining, potentially recreating the alleged accessibility problem.

The court also found that Whitaker had not yet had a reasonable opportunity to rebut the access specialist’s testimony. A joint inspection could allow him to evaluate the indoor seating and determine whether other barriers related to his disability existed. The court therefore could not conclude that the Americans with Disabilities Act claim was moot before that inspection.

Disposition

The court denied Sivongsa’s motion to dismiss the Americans with Disabilities Act claim on mootness grounds. It ordered the parties to file a joint proposed schedule for further proceedings by August 13, 2021, tracking as closely as possible the schedule under the district’s General Order 56 for Americans with Disabilities Act litigation. The opinion did not rule on the merits of Whitaker’s accessibility allegations or state a disposition for the Unruh Civil Rights Act claim.