Motion for Writ in WHITAKER vs COSTCO WHOLESALE CORPORATION, A WASHINGTON CORPOR...| Trellis.Law

On March 21, 2024 a Complaint,Petition was filed involving a dispute between Brian Whitaker, and Costco Wholesale Corporation, A Washington Corporation, for (Civil Rights/Discrimination) in the District Court of Sacramento County.

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DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

THE REDDY LAW FIRM LLC
1 Prathima Reddy Price , Esq., SBN 321378
Sumedh Rishi, Esq., SBN 348167
2 103 Bay Park Terrace, Alameda, CA 94502
(646) 468-4257; (510) 217-3541 fax
3 preddy@thereddylaw.com
eserve@thereddylaw.com
4
5 Attorneys for Plaintiff

6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SACRAMENTO

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10
Brian Whitaker, Case No.
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Plaintiff,
UNLIMITED CIVIL CASE
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v.
13 Verified Complaint for Damages and
Injunctive Relief for Violations of:
14 Costco Wholesale Corporation, a Unruh Civil Rights Act; California
Washington Corporation; and DOES 1 Disabled Persons Act
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through 50 inclusive;
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ACTION SUBJECT TO THE
Defendants.
17 SUPPLEMENTAL FEE IN
GOVERNMENT CODE SECTION
18 70616.5
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Plaintiff Brian Whitaker complains of Costco Wholesale Corporation, a
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Washington Corporation; and DOES 1 through 50 inclusive; (“Defendant”), and alleges as
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follows:
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PARTIES:
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1. Plaintiff is a California resident with physical disabilities and a member of a
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protected class of persons under the Americans with Disabilities Act (“ADA”). He is
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substantially limited in his ability to walk. He suffers from a C-4 spinal cord injury. He is
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a quadriplegic. He uses a wheelchair for mobility.

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 2. Defendant Costco Wholesale Corporation owned the real property located at or
about 1800 Cavitt Dr. Folsom, California, in August 2023.
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3. Defendant Costco Wholesale Corporation owns the real property located at or about
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1800 Cavitt Dr. Folsom, California, currently.
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4. Defendant Costco Wholesale Corporation owned Costco Wholesale located at or
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about 1800 Cavitt Dr. Folsom, California in August 2023.
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5. Defendant Costco Wholesale Corporation owns Costco Wholesale (“Store”)
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located at or about 1800 Cavitt Dr. Folsom, California currently.
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6. Plaintiff does not know the true names of Defendants, their business capacities,
9 their ownership connection to the property and business, or their relative responsibilities in
10 causing the access violations herein complained of, and alleges a joint venture and common
11 enterprise by all such Defendants. Plaintiff is informed and believes that each of the
12 Defendants herein is responsible in some capacity for the events herein alleged, or is a
13 necessary party for obtaining appropriate relief. Plaintiff will seek leave to amend when
14 the true names, capacities, connections, and responsibilities of the Defendants are
15 ascertained.

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17 JURISDICTION:
7. This Court has subject matter jurisdiction over this action as a court of general
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jurisdiction. This Court has personal jurisdiction over Defendants because Defendants
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conduct substantial business in the County of Sacramento.
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8. Venue is proper in this Court because Defendants conduct business in this County.
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9. Unlimited jurisdiction is proper because Plaintiff seeks a permanent injunction
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ordering compliance with the Unruh Civil Rights Act and California Disabled Persons Act.
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24 FACTUAL ALLEGATIONS:
25 10. Plaintiff went to the Store on August 8 2023, intending to avail himself of its goods,
26 services, privileges, or advantages (“Benefits”) motivated in part to determine if the
27 defendants comply with the disability access laws. While trying to patronize the Store,
28 Plaintiff personally encountered unlawful barriers on August 8, 2023. Plaintiff revisited the

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 Store on October 30, 2023, November 17, 2023 and December 5, 2023, hoping the barriers
would have been remediated by then. However, Plaintiff encountered these barriers once
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again. During his visits, Plaintiff could not avail himself of the Store's Benefits without
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difficulty.
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11. The Store is a facility open to the public, a place of public accommodation, and a
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business establishment.
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12. Plaintiff was in the area for shopping and went to the Store to check out some of
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their merchandise on the date of his visits.
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13. Unfortunately, on the date of Plaintiff’s visit, the facility failed to comply with ADA
9 Standards as it relates to wheelchair users like the plaintiff.
10 14. Plaintiff observed or encountered the following non-compliant conditions:
11 Feature Compliance Issue Standard1
12 Dining Surfaces There was not enough knee and toe clearance § 306
13 under the dining surfaces.
14 Sales Counters The point-of-sale machines were out of reach § 904
15 for Plaintiff. In fact, the card reader is 53
16 inches high.

17 Restroom The plumbing underneath the sink is not § 606

18 wrapped to protect against burning contact.

19 15. The above features are all available Benefits offered to customers but not offered
in conformance with the ADA standard as they relate to the plaintiff’s disability.
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16. The failure to provide accessible dining surfaces denied Plaintiff full and equal
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access because Plaintiff could not roll his wheelchair under the table through a forward
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approach and, accordingly, could not enjoy his meal without difficulty..
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17. The failure to provide accessible restroom denied Plaintiff full and equal access
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because the plaintiff was unable to use the sink without difficulty.
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18. The failure to provide accessible sales counter or the card reader denied Plaintiff
26 full and equal access because the Plaintiff was unable to complete the transaction without
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1
28 Cites to the 2010 ADA Standards for Accessible Design unless otherwise
indicated.

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 difficulty and embarrassment.
19. Plaintiff believes that there are other elements of the above features that likely fail
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to comply with the ADA Standards and seeks to have fully compliant Benefits for
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wheelchair users.
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20. On information and belief, the above conditions currently exist.
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21. These above barriers relate to and impact the plaintiff’s disability. Plaintiff
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personally encountered these barriers.
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22. As a wheelchair user, Plaintiff benefits from and is entitled to use wheelchair
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accessible facilities. The above inaccessible conditions deny the plaintiff full and equal
9 access.
10 23. The defendants have failed to maintain in working and useable conditions those
11 features required to provide ready access to persons with disabilities.
12 24. All of barriers identified above are easily removed without much difficulty or
13 expense. They are the types of barriers identified by the Department of Justice for attention
14 and these barriers are readily achievable to remove. However, should full compliance not
15 be readily achievable, there are numerous alternative accommodations that could be made

16 to provide a greater level of access than presently exists.

17 25. Given the obvious and blatant nature of the barriers and violations alleged herein,
the plaintiff alleges that defendants have failed to take the necessary steps to ensure
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removal of non-compliant architectural barriers as required by 42 U.S.C. § 12182(2)(A)(iv)
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and on information and belief, alleges that there are other violations and barriers on the site
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that relate to his disability. Plaintiff will amend the complaint to provide proper notice
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regarding the scope of this lawsuit once he conducts a site inspection. Plaintiff seeks to
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have all barriers related to his disability remedied. See Doran v. 7-Eleven, 524 F.3d 1034
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(9th Cir. 2008) (holding that once a plaintiff encounters one barrier at a site, he can sue to
24 have all barriers that relate to his disability removed regardless of whether he personally
25 encountered them).
26 26. As the ADA has existed since 1990, and the facility is still non-compliant, Plaintiff
27 alleges the above conditions are the result of either a policy failure or systematic negligence
28 such that only regular audits of the facility architecture and policies will ensure future

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 compliance.
27. Plaintiff is currently deterred from returning to the Store due to knowledge of the
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existing barriers and uncertainty about the existence of yet other barriers on the site. If the
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barriers are not removed, the plaintiff will face unlawful and discriminatory barriers again.
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Plaintiff will return to the Store after the conclusion of the case to avail himself of its
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benefits and to confirm compliance with the disability access laws once it is represented to
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him that the Store and its facilities are accessible.
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CCP § 425.50 Compliance Statements:
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28. Compliance testing is recognized by the U.S. Supreme Court and civil rights
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advocates as a necessary method of enforcing civil rights laws.
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29. Pursuant to CCP § 425.50(a)(4)(i) Plaintiff states they qualify as a high- frequency
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litigant as defined by CCP § 425.55. Plaintiff is an ADA advocate and tester as that term
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is understood and protected under federal law. Havens tester as that term is understood and
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protected under federal law. Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); C.R.
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Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1097 (9th Cir. 2017).
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30. Pursuant to CCP § 425.50(a)(4)(ii), Plaintiff states in the year preceding the drafting
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of this complaint they filed approximately 869 lawsuits alleging violations of construction-
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related accessibility standards.
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31. Pursuant to Pursuant to CCP § 425.50(a)(4)(iii), Plaintiff states on the date alleged
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above, Plaintiff was in the area around to grab some snacks and drinks, and was also around
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the business engaged in constitutionally protected tester activities visiting businesses in the
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same manner as a potential customer to confirm their compliance with state and federal
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laws. Plaintiff’s encounter with the above listed conditions resulted in a denial of full and
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equal access under the ADA.
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32. Pursuant to Pursuant to CCP § 425.50(a)(4)(iv), Plaintiff states Plaintiff visited the
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subject business for the purpose of testing facility compliance with accessibility laws with
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the intention to use the Benefits of the facility in the same manner as a customer.
28 33. At the conclusion of this suit and after being informed that the barriers complained

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 of have been removed, in furtherance of Plaintiff’s tester motivations, Plaintiff intends to
return to the business to confirm accessibility of the above conditions.
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I. FIRST CAUSE OF ACTION: VIOLATION OF THE UNRUH CIVIL RIGHTS
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ACT
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(On behalf of Plaintiff and against all Defendants.) Cal. Civ. Code § 51-53.
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34. Plaintiff re-pleads and incorporates by reference, as if fully set forth again herein,
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the allegations contained in all prior paragraphs of this complaint.
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35. Under the ADA, it is an act of discrimination to fail to ensure that the privileges,
9 advantages, accommodations, facilities, goods and services of any place of public
10 accommodation are offered on a full and equal basis by anyone who owns, leases, or
11 operates a place of public accommodation. See 42 U.S.C. § 12182(a). Discrimination is
12 defined, inter alia, as follows:
13 a. A failure to make reasonable modifications in policies, practices, or
14 procedures, when such modifications are necessary to afford goods, services,
15 facilities, privileges, advantages, or accommodations to individuals with

16 disabilities, unless the accommodation would work a fundamental alteration

17 of those services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii).
b. A failure to remove architectural barriers where such removal is readily
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achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Barriers are defined by
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reference to the ADA Standards.
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c. A failure to make alterations in such a manner that, to the maximum extent
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feasible, the altered portions of the facility are readily accessible to and
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usable by individuals with disabilities, including individuals who use
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wheelchairs or to ensure that, to the maximum extent feasible, the path of
24 travel to the altered area and the bathrooms, telephones, and drinking
25 fountains serving the altered area, are readily accessible to and usable by
26 individuals with disabilities. 42 U.S.C. § 12183(a)(2).
27 36. When a business provides dining surfaces, it must provide accessible dining
28 surfaces.

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 37. Here, accessible dining surfaces were not provided in conformance with the ADA
Standards
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38. When a business provides sales counters, it must provide accessible sales counters.
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39. Here, accessible sales counters were not provided in conformance with the ADA
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Standards.
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40. When a business provides restroom, it must provide accessible restroom.
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41. Here, accessible restroom was not provided in conformance with the ADA
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Standards.
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42. The Safe Harbor provisions of the 2010 Standards are not applicable here because
9 the conditions challenged in this lawsuit do not comply with the 1991 Standards.
10 43. A public accommodation must maintain in operable working condition those
11 features of its facilities and equipment that are required to be readily accessible to and
12 usable by persons with disabilities. 28 C.F.R. § 36.211(a).
13 44. Here, the failure to ensure that accessible facilities were available and ready to be
14 used by the plaintiff is a violation of the law.
15 45. The Unruh Act provides that any violation of the ADA is a violation of the Unruh

16 Act. Cal. Civ. Code, § 51(f).

17 46. Defendants' acts and omissions, as herein alleged, have violated the Unruh Act by,
inter alia, denying, or aiding, or inciting the denial of, Plaintiff’s rights to full and equal
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use of the accommodations, advantages, facilities, privileges, or services offered.
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47. Because the violation of the ADA resulted in a denial of full and equal access to
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the plaintiff, the defendants are also each responsible for statutory damages, i.e., a civil
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penalty. Civ. Code § 55.56(a)-(c).
22
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II. SECOND CAUSE OF ACTION: VIOLATION OF THE CALIFORNIA
24 DISABLED PERSONS ACT
25 (On behalf of Plaintiff and against all Defendants.) Cal. Civ. Code § 54.1.
26 48. Plaintiff repleads and incorporates by reference, as if fully set forth again herein,
27 the allegations contained in all prior paragraphs of this complaint. The California Disabled
28 Persons Act (“CDPA”) guarantees, inter alia, that persons with disabilities are entitled to

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 full and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever within the jurisdiction of the State of
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California. Cal. Civ. Code § 54.1.
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49. The CDPA provides that any violation of the ADA is a violation of the Unruh Act.
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Cal. Civ. Code, § 54.1(d).
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50. Defendants' acts and omissions, as herein alleged, have violated the CDPA by, inter
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alia, denying, or aiding, or inciting the denial of, Plaintiff’s rights to full and equal use of
7
the accommodations, advantages, facilities, privileges, or services offered.
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51. Because the violation of the ADA resulted in a denial of full and equal access to
9 the plaintiff, the defendants are also each responsible for statutory damages, i.e., a civil
10 penalty. Cal. Civ. Code § 54.3
11
12 PRAYER:
13 Wherefore, Plaintiff prays that this Court award damages and provide relief as follows:
14 1. For injunctive relief, compelling Defendants to remove all presently existing
15 architectural barriers as required by the Americans with Disabilities Act and the Unruh

16 Civil Rights Act.2

17 2. For injunctive relief requiring that Defendants obtain biennial Certified Access
Specialist (“CASp”) architectural inspections of the subject facility to verify on-going
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ADA compliance and follow those inspection’s recommendations of all readily achievable
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barrier removal.
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3. For injunctive relief requiring implementation of accessibility policies and
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requiring annual employee training on providing full and equal access to clients or
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customers with disabilities.
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4. Damages under the Unruh Civil Rights Act or California Disabled Persons Act,
24 which provide for up to treble actual damages and a statutory minimum of $4,000 or $1,000
25 respectively per violation of each Act. While Plaintiff may prevail on each act individually,
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2
28 Note: The plaintiff is not invoking section 55 of the California Civil Code
and is not seeking injunctive relief under the Disabled Persons Act at all.

Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

1 Plaintiff only seeks monetary recovery under whichever act results in the greatest damages,
to be determined at trial.
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5. Reasonable attorney fees, litigation expenses and costs of suit, pursuant to Cal. Civ.
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Code § 52 and/or § 54.1
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Dated: March 20, 2024 THE REDDY LAW FIRM LLC
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8 Lh 4 4). 44
By: ______________________
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10 Prathima Reddy Price, Esq.
11 Attorney for Plaintiff
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Verified Complaint
DocuSign Envelope ID: E8C2561E-F04C-41C5-BD32-84FBF267A140

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VERIFICATION
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I am a party to this action, and I have read the complaint titled Whitaker v. Costco
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Wholesale Corporation, et al. and know its content. The facts stated in the complaint are
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true and based on my own knowledge, except as to those matters stated on information and
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belief, and as to those matters, I believe them true.
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I declare penalty under perjury under the laws of the State of California that the foregoing
9 is true and correct.
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DocuSigned by:
12 [Brion Whitaker
3/20/2024
13 Dated: ______________ By: __________________
14 Brian Whitaker
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Verified Complaint

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Complaint,Petition: WHITAKER vs COSTCO WHOLESALE CORPORATION, A WASHINGTON CORPOR...

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