1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10

SCOTT JOHNSON,

11 No. 2:18-cv-02472-TLN-KJN Plaintiff, 12 v. 13 ORDER STARBUCKS CORPORATION, a 14 Washington Corporation; and DOES 1-10,

15 Defendants. 16 17 18 This matter is before the Court on Plaintiff Scott Johnson’s (“Plaintiff”) Motion to Stay 19 Case Pending Resolution of Appeal. (ECF No. 19.) Defendant Starbucks Corporation 20 (“Starbucks”) opposed Plaintiff’s motion, and Plaintiff filed a reply. (ECF Nos. 20–21.) For the 21 reasons set forth below, Plaintiff’s Motion to Stay is DENIED. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff is a quadriplegic who uses a wheelchair for mobility. (ECF No. 1 at 1–2.) 3 Plaintiff initiated this action against Defendants Starbucks and First California Investments on 4 September 11, 2018, alleging violations of the American with Disabilities Act (“ADA”), 42 5 U.S.C. § 12101, and the Unruh Civil Rights Act (“Unruh Act”), California Civil Code §§ 51–53. 6 (ECF No. 1.) Specifically, Plaintiff alleges he encountered two unlawful barriers to access at the 7 Starbucks café located at 4701 Madison Avenue in Sacramento, California. First, Plaintiff asserts 8 the café’s transaction counter is crowded with merchandise and displays that impermissibly 9 narrow the clear width of the countertop. (Id. at 3.) Second, Plaintiff claims the paths of travel 10 from the parking lot to the café’s entrance and within the café itself are obstructed such that 11 Plaintiff is denied full and equal access with his wheelchair. (Id. at 3–4.) Each Defendant filed 12 an Answer to the Complaint.1 (ECF Nos. 6, 11, 13.) 13 On May 29, 2019, Plaintiff filed the instant motion to stay proceedings pending appeal of 14 two related cases: Johnson v. Blackhawk Centercal, No. 3:17-cv-02454-WHA (“Blackhawk”) and 15 Kong v. Mana Investments Company LLC, No. 8:18-cv-01615-DOC-DFM (“Mana”).2 (ECF No. 16 19.) Plaintiff argues a stay would lead to an efficient resolution of his claims because there is no 17 factual dispute and the cases pending before the Ninth Circuit involve a common defendant, 18 identical issues, and the same statutory and regulatory challenges as the instant case. (ECF No. 19 19-1 at 3.) Only Starbucks opposed Plaintiff’s motion. (ECF No. 20.) On July 1, 2019, Plaintiff 20 filed a reply. (ECF No. 21.) 21 On July 26, 2019, the parties filed a joint stipulation to dismiss Defendant First California 22 Investments with prejudice based on a settlement agreement entered into by Plaintiff and First 23

24 1 Starbucks filed both an Answer and an Amended Answer.

25 2 Blackhawk proceeds on Plaintiff’s claim that the transaction countertop at the Starbucks café in Danville, California was crowded with merchandise and displays, and Starbucks failed to 26 “maintain” the counter so as to render it accessible, in violation of the ADA and the Unruh Act. 27 Plaintiff currently appeals the district court’s order granting summary judgment for Starbucks. (ECF No. 19-3.) Mana proceeds on the same ADA-transaction counter claim with respect to a 28 Starbucks café in Stanton, California and is under appeal on the same grounds. (ECF No. 19-6.) 1 California Investments resolving the exterior path-of-travel claim. (ECF No. 23.) Plaintiff 2 additionally stipulated to “move forward against Defendant Starbucks Corporation on his claim 3 related to the transaction counters only.” (Id. at 2.) Pursuant to the stipulation, the Court 4 dismissed First California Investments with prejudice.3 (ECF No. 24.) On April 17, 2020, the 5 parties filed a Joint Status Report, in which they clarified they intended to proceed on Plaintiff’s 6 interior path-of-travel and transaction counter claims against Starbucks. (ECF No. 36.) 7 II. STANDARD OF LAW 8 The Court has broad discretion in deciding whether to issue a stay. “[T]he power to stay 9 proceedings is incidental to the power inherent in every court to control the disposition of the 10 causes on its docket .... [This] calls for the exercise of judgment, which must weigh competing 11 interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936). 12 More specifically, “[w]here it is proposed that a pending proceeding be stayed, the competing 13 interests which will be affected by the granting or refusal to grant a stay must be weighed.” 14 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). “[I]f there is even a fair possibility that 15 the stay … will work damage to someone else,” the moving party must show hardship or inequity 16 will result absent a stay in order for the stay to be proper. Landis, 299 U.S. at 255. 17 When considering a motion to stay, courts within the Ninth Circuit have considered three 18 factors: (1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving 19 party if the action is not stayed; and (3) the orderly course of justice. CMAX, Inc. v. Hall, 300 20 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254–55); see also Rivers v. Walt Disney 21 Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). A stay should be denied if it “would require both 22 parties to simply sit and wait for months on the sidelines of their own action … [foreclosing] any 23 possibility of the parties resolving their dispute in a timely fashion or of the Court disposing of 24 issues unrelated to those on appeal …” Dister v. Apple-Bay E., Inc., No. 07-cv-01377 SBA, 2007 25

3 Despite Plaintiff’s stipulation to proceed against Starbucks “on his claim related to the 26 transaction counters only,” the Court noted the parties’ stipulation was unclear as to Plaintiff’s 27 interior path-of-travel claim and ordered the parties to submit an updated status report clarifying which claims remained at issue against Starbucks following the parties’ July 26, 2019 joint 28 stipulation. (ECF No. 35.) 1 WL 4045429, at *5 (N.D. Cal. Nov. 15, 2007). 2 III. ANALYSIS 3 A. Prejudice and Hardship to the Parties 4 Here, the Court will have to adjudicate the interior path-of-travel issue regardless of the 5 outcomes of Blackhawk and Mana, which only address the transaction counter issue. (ECF No. 6 20 at 3.) Starbucks correctly notes a stay would prevent the Court from disposing of the issues 7 not related to Blackhawk and Mana and would prejudice Starbucks by needlessly drawing out the 8 litigation. (Id.) On the other hand, the Court finds that Plaintiff would suffer little hardship from 9 proceeding with his case, as the parties must still conduct discovery on the path-of-travel claim. 10 Moreover, Plaintiff brought this lawsuit and therefore should be prepared to litigate it to its 11 conclusion. Plaintiff has made no argument that he would suffer any kind of hardship or inequity 12 if a stay is not granted here and has therefore failed to meet his burden.4 Accordingly, the first 13 two factors weigh in favor of denying Plaintiff’s Motion to Stay. 14 B. Orderly Course of Justice 15 The orderly course of justice is “measured in terms of the simplifying of complicating 16 issues, proof, and questions of law which could be expected from a stay.” Lockyer v. Mirant 17 Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). Here, the Court finds that the orderly course of 18 justice does not warrant a stay. 19 First, Plaintiff overstates the likelihood that the outcomes of Blackhawk and Mana will 20 control the resolution of this matter. It is possible that the transaction counter issue here is 21 factually distinguishable from those at the other Starbucks locations. Further, while the above- 22 mentioned appeals may resolve one issue present in this case, “[a] motion to stay … does not 23 4 For the first time in his reply, Plaintiff alternatively requests the Court bifurcate the 24 claims, leaving the transaction counter claim to be determined by the outcome of Blackhawk and Mana and proceeding with the path-of-travel claim. (ECF No. 21 at 3.) However, the Court 25 notes that the Unruh Civil Rights Act provides for attorney’s fees and a statutory minimum of $4,000 per visit, regardless of how many barriers exist when Plaintiff visits, and therefore a 26 partial stay could result in double recovery for Plaintiff. This too, would unduly prejudice 27 Starbucks. Further, a partial stay would “unnecessarily prolong the process and waste judicial resources supervising two phases of discovery.” See Rosas v. GEICO Cas. Co., 365 F. Supp. 3d 28 1123, 1128 (D. Nev. 2019). 1 hinge only on considerations of judicial economy.” ASUSTek Comput. Inc. v. Ricoh Co., No. 07- 2 cv-01942 MHP, 2007 WL 4190689, at *2 (N.D. Cal. Nov. 21, 2007) (citing Landis, 299 U.S. at 3 255); see also Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 4 (9th Cir. 2007) (“[C]ase management standing alone is not necessarily a sufficient ground to stay 5 proceedings.”). Moreover, as previously discussed, a stay would likely damage and prejudice 6 Starbucks by unnecessarily delaying resolution of these proceedings. Such costs outweigh any 7 savings in judicial economy. See Landis, 299 U.S. at 256 (reversing the lower court decision 8 largely because the stay would result in undue delay). 9 Plaintiff next argues the Court should grant the instant motion because he has filed dozens 10 of other cases against Starbucks regarding the countertop issue and those cases have been stayed. 11 (ECF No. 21 at 2.) This argument is unavailing. The Court notes that in the cases Plaintiff 12 appears to reference, his motions to stay were simply granted as a result of either joint stipulation 13 or non-opposition by the respective defendants.5 Notably, when opposed, Plaintiff’s motions to 14 stay were denied. See Johnson v. Starbucks Corp., No. 2:18-cv-02956-JAM-AC, 2019 WL 15 4034479 (E.D. Cal. Aug. 27, 2019); Johnson v. Starbucks Corp., No. 2:18-cv-01886-WBS-EFB, 16 2019 WL 3202849 (E.D. Cal. Jul. 16, 2019). In those cases, as here, the action involved 17 additional issues not addressed by Blackhawk and Mana. See Id. 18 Finally, Plaintiff argues that Kisor v. Wilkie, 139 S. Ct. 2400 (2019) modifies the way 19 courts are instructed to apply agency interpretations of regulations and statutes, therefore creating 20 a novel issue of law for which the Court must wait for the Ninth Circuit to interpret. (ECF No. 21 21 at 3.) Plaintiff’s argument is misguided because Kisor did not overrule Auer or Seminole Rock 22

23 5 See, e.g., Johnson v. Mack Plaza Co. L.P., No. 2:17-cv-01125-TLN-EFB (E.D. Cal. Jan. 31, 2020); Johnson v. Brixton Sherwood, LLC, No. 2:17-cv-02082-TLN-EFB (E.D. Cal. Jan. 22, 24 2020); Johnson v. Starbucks Corp., No. 2:16-cv-02792-TLN-KJN (E.D. Cal. Jan. 16, 2020); Johnson v. Starbucks Corp., No. 2:18-cv-02460-KJM-KJN (E.D. Cal. Jun. 21, 2019); Johnson v. 25 Starbucks Corp., No. 2:16-cv-02489-MCE-EFB (E.D. Cal. Jun. 20, 2019); Johnson v. Starbucks Corp., No. 2:17-cv-02521-MCE-CKD (E.D. Cal. Jun. 19, 2019); Johnson v. Starbucks Corp., No. 26 2:17-cv-01718-KJM-KJN (E.D. Cal. Jun. 19, 2019); Johnson v. Starbucks Corp., No. 2:16-cv- 27 02820-MCE-KJN (E.D. Cal. Jun. 18, 2019); Johnson v. Starbucks Corp., No. 2:18-cv-01885- MCE-AC (E.D. Cal. Jun. 12, 2019); Johnson v. Starbucks Corp., No. 2:18-cv-00395-JAM-EFB 28 (E.D. Cal. Jun. 5, 2019). 1 deference. See Kisor, 139 S. Ct. at 2414–15, 2418 (citing Auer v. Robbins, 519 U.S. 452, 462 2 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Rather, Kisor limited 3 the deference afforded to an agency’s interpretation of its own guidelines. 6 Id. at 2415. Under 4 Kisor, deference to the agency’s interpretation (here, the ADA guidelines) is given if the agency’s 5 regulation is genuinely ambiguous and if the agency’s interpretation is reasonable. Id. at 2414– 6 15. If the regulation is not ambiguous, the “regulation then must mean what it means—and the 7 court must give it effect, as the court would any law.” Id. at 2415. In sum, Kisor’s guidance is 8 clear: should the Department of Justice file an amicus brief interpreting the accessibility 9 guidelines in this case for either the transaction counter claim or the interior path-of-travel claim, 10 the Court will assess how much deference to afford the agency’s interpretation. But the case is 11 not yet at that juncture. Moreover, it is uncertain whether the interior path-of-travel issue will 12 also trigger an interpretation of the accessibility guidelines. Accordingly, this factor also weighs 13 in favor of denying Plaintiff’s Motion to Stay. 14 IV. CONCLUSION 15 For the foregoing reasons, Plaintiff’s Motion to Stay (ECF No. 19) is hereby DENIED. 16 IT IS SO ORDERED. 17 DATED: April 27, 2020 18 19 20 21 22 23 24 6 Before Kisor, courts were required to “give an agency’s interpretation of its own 25 regulations controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Kisor, 139 S. Ct. at 2416; see also Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 26 878 F.3d 725, 733 (9th Cir. 2017) (holding that an agency’s interpretation of its own ambiguous 27 regulation is controlling unless “‘plainly erroneous or inconsistent with the regulation,’ or where there are grounds to believe that the interpretation ‘does not reflect the agency’s fair and 28 considered judgment of the matter in question’”).