Metropolitan News-Enterprise


Wednesday, January 3, 2018


Page 1


Ninth Circuit:

Restaurant Chain Shows No Basis for Challenge To $8,000 Award to Paraplegic Customer


By a MetNews Staff Writer


Above is the Corner Bakery Cafe in Long Beach’s “Marketplace” shopping center. Plaintiff Gilbert Salinas complained that he could not reach the cashier counter in his wheelchair and was awarded $8,000 by the district court. The Ninth U.S. Circuit Court of Appeals yesterday denied an appeal by the restaurant owner  of the denial of its motion for relief from judgment.


The Ninth U.S. Circuit Court of Appeals yesterday declined to disturb an $8,000 judgment in favor of a wheelchair-bound paraplegic who came to the cashier station in a restaurant to pay the tab, found that the counter was too high for him to transact business, and had to ask his wife to make the payment.

Plaintiff Gilbert Salinas claimed in his action against CBC Restaurant Corporation, under the federal Americans with Disabilities Act and state law, that the episode proved “frustrating and somewhat embarrassing” for him.

Summary judgment in favor of Salinas was rendered Aug. 31, 2015 by U.S. District Court Judge Cormac J. Carney of the Central District of California, and amended by him on April 14. 2016, to include an order that “a counter compliant with the Americans with Disabilities Act Accessibility Guidelines” be installed at the restaurant, the Corner Bakery Cafe on Pacific Coast Highway in Long Beach. That eatery is one of 192 throughout the United States in a chain operated by CBC, based in Dallas.

CBC did not appeal from the judgment but, rather, from Cormac’s denial of a motion for relief from judgment.

The defendant argued that it did have an ADA-compliant counter which was 34 inches high. Salinas contended that the low counter was of no use because it was in front of a 46-inch counter, and the cashier was behind that counter, impeding a transaction between a person in a wheelchair.

In his order granting partial summary judgment, on the ADA claim, Carney said that CBC “is correct that the lower counter literally complies with the length and height requirements” of the ADA guidelines which require a counter at least 36 inches long and no higher than 36 inches high,” but that, the jurist held, is not enough. He wrote:

“[T]he guideline requires that the accessible counter must meet the length and height requirements and also be ‘a portion of the counter’ which has a cash register and is provided for the sale or distribution of goods. The lower counter does not meet tins qualification. It is undisputed that the cash register does not sit on the lower, customer-facing counter. And the lower counter cannot be said to be a ‘“portion of the higher counter in any meaningful sense.”

Unruh Act Violation

Carney also granted partial summary judgment on Salinas’s claim under California’s Unruh Act which requires “full and equal access to the place of public accommodation on a particular occasion.” Because Salinas did not have such access on April 14, 2013, when he patronized the Corner Bakery Cafe, he was awarded statutory damages of $4,000.

He was awarded an additional $4,000 because on at least one occasion after the lawsuit was filed, and CBC was on notice as to the ADA violation, he was deterred from eating there because the counter had not been altered.

In the motion for relief from the judgment, CBC contended that Carney was mistaken as to the facts and law.

Ninth Circuit Opinion

Yesterday’s memorandum opinion says the judge did not misapprehend the facts.

“The relevant dimensions and construction of the check-out counter in CBC’s restaurant were clearly presented in dozens of photographs in the record,” the opinion sets forth. “The facts are clear,” as was Carney’s application of the ADA guidelines to those facts, it says, adding:

“CBC had full access to the counter in its own restaurant, and had a fair opportunity to present its case before the district court. Although the district court found Salinas’ arguments more persuasive, it was not due to any misrepresentation of facts or law by Salinas.”

The opinion rejects CBC’s contention that its motion for relief should have been granted to avoid “manifest injustice,” seeing no basis for the contention.

It also observes that CBC’s failure to appeal from the judgment “does not amount to an extraordinary circumstance justifying relief that is intended to be used only sparingly.”

The case is Salinas v. CBC Restaurant Corporation, No. 16-55564.


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