Whitaker v. Avocado Toast Inc

Background

Brian Whitaker sued Avocado Toast Inc. on December 6, 2021. The opinion states that Whitaker has physical disabilities and uses a wheelchair. He alleged that he visited Avocado Toast, a restaurant owned by Avocado Toast Inc. in San Mateo, California, in November 2021 and encountered physical barriers that did not comply with Americans with Disabilities Act standards.

Whitaker asserted two causes of action: violation of the Americans with Disabilities Act and violation of California’s Unruh Civil Rights Act. He alleged that he would return to the restaurant to use its goods and services and to check whether it complied with disability-access laws.

Motion and Standing Standard

Avocado Toast Inc. moved to dismiss, arguing that Whitaker lacked standing because his stated intent to return was not credible. The defendant submitted materials from several other proceedings involving Whitaker, including trial and deposition transcripts and a trial-video link. Whitaker submitted a declaration describing his regular travel to the Bay Area and stating that he would return to Avocado Toast once assured that the restaurant intended to make its facilities accessible.

Standing is the legal requirement that a plaintiff have a sufficient personal connection to the dispute to ask a federal court for relief. The court explained that an Americans with Disabilities Act plaintiff must show an actual injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable court decision would address the injury. Because a private plaintiff may obtain only an injunction under the Americans with Disabilities Act, the plaintiff must also show a real and immediate threat of being injured again.

The court noted that a plaintiff may establish standing by showing an injury combined with an intent to return, or by showing that the alleged barriers deterred the plaintiff from returning.

Court’s Analysis

The court found that Whitaker adequately alleged both deterrence and an intent to return. He alleged that he was currently deterred from returning because he knew about existing barriers and was uncertain whether additional barriers existed. He also alleged that he would return to Avocado Toast after being told that the restaurant and its facilities were accessible. His declaration similarly stated that he would return once assured that the defendant intended to make the restaurant accessible.

The court rejected the defendant’s arguments based on Whitaker’s prior Americans with Disabilities Act litigation. It relied on Ninth Circuit authority cautioning courts against treating prior disability-access lawsuits alone as proof that a plaintiff’s stated intent to return is not sincere.

The court also rejected the argument based on the distance between the restaurant and Whitaker’s home. The opinion states that Whitaker regularly visits the Bay Area and has expressed an intent to return to Avocado Toast if it becomes compliant with disability-access requirements.

Finally, the court explained that a plaintiff’s status as an “Americans with Disabilities Act tester”—someone who visits or evaluates businesses for compliance with disability-access laws—does not by itself eliminate standing. The court stated that motivation is irrelevant to standing under Title III of the Americans with Disabilities Act.

Disposition

Judge Phyllis J. Hamilton denied Avocado Toast Inc.’s motion to dismiss. The order resolved the standing challenge and did not decide whether the alleged barriers actually violated the Americans with Disabilities Act or the Unruh Civil Rights Act.