JUNE 12, 2009
Contact: Mark Potter, Esq.
760-480-4162 mark@potterhandy.com
Contact: Russell Handy, Esq. 760-480-4162 russ@potterhandy.com
____________________________________________________________________________
CALIFORNIA SUPREME COURT HANDS DOWN UNANIMOUS DECISION
STRENGTHENING DISABILITY RIGHTS
San Francisco, California -- The California Supreme Court handed down a unanimous
decision Thursday, finding that persons with disabilities could recover damages under the Unruh
Civil Rights Act without having to prove “intent to discriminate.” (Munson v. Del Taco, Inc.
(2009) --- Cal.Rptr.3d ---, 2009 WL 1619783).
Plaintiff Kenneth Munson, a wheelchair user, went to a neighborhood Del Taco and
discovered to his great frustration that he could not get into the men’s restroom because the
doorway entrance was too narrow. He retained the Center for Disability Access and filed a
lawsuit in San Bernardino Superior Court, seeking to have the restroom fixed and modest
damages under the Unruh Act.
Del Taco hired the law firm of Call Jensen & Ferrell who removed the case to federal
court and launched an aggressive defense, asserting a number of legal and factual arguments
including the argument that national chain Del Taco could not afford to widen the doorway.
United States District Judge A. Howard Matz flatly rejected the arguments and granted the
motion for summary judgment filed by the Center for Disability Access. Del Taco appealed. On
appeal to the Ninth Circuit, Call Jensen argued that a person with a disability needed to prove
“intent to discriminate” under the Unruh Act. They cited a state court opinion: Gunther v. Lin.
CDA countered that Gunther was an anomalous decision, wrongly decided, and urged the 9th
Circuit to reject it. The 9th Circuit agreed and certified the question to the Supreme Court.
After rounds of briefing, the California Supreme Court presided over vigorous oral
argument on May 6th, where CDA urged the Court to overrule Gunther, citing the legislative
history, the public policy underlying the Unruh Act, and principles of statutory construction. On
June 11th, the Supreme Court handed down a unanimous decision overruling Gunther and
upholding the right of persons with disabilities to sue under the Unruh Civil Rights Act without
having to prove “intent to discriminate.” It was a complete victory for persons with disabilities.
Plaintiff’s counsel, Mark Potter, commented on the victory, “I can’t help but wonder what Del
Taco was thinking? What kind of advice they got? It was a small dollar case with clear cut
liability. They should have promptly agreed to fix the doorway and settle the case on the cheap.
Instead, they turned it into a federal case, fought it all the way to the Ninth Circuit and then the
California Supreme Court. . . and lost. In the process, they got one of the most potent cases for
the defense -- Gunther v. Lin --overruled and now the available penalty damages in these cases
have just been quadrupled. Ouch.” ///
