                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LARRY BEAUCHAMP,                       No. 11-55780
        Plaintiff-Appellant,
                                         D.C. No.
             v.                   2:10-cv-01270-RGK-JC

CITY OF LONG BEACH,
         Defendant-Appellee.      ORDER CERTIFYING
                                   DETERMINATIVE
                                  QUESTIONS OF LAW
                                  TO THE CALIFORNIA
                                   SUPREME COURT


                  Filed September 17, 2013

  Before: Consuelo M. Callahan, Sandra S. Ikuta, and
          Andrew D. Hurwitz, Circuit Judges.
2            BEAUCHAMP V. CITY OF LONG BEACH

                           SUMMARY*


    Certification of Questions to State Supreme Court

   The panel filed an order certifying to the California
Supreme Court determinative questions of law regarding the
California Disabled Persons Act.

    The panel certified the following questions:

    Section 54.3(a) of the California Civil Code provides that
a person who violates the California Disabled Persons Act,
Cal. Civ. Code §§ 54, 54.1, is liable for actual damages for
“each offense . . . but in no case less than one thousand
dollars ($1,000).” Does the phrase “each offense” refer to
each occasion when a plaintiff encounters a barrier that
denies the plaintiff full and equal access to a public facility,
or should a trial court construe “each offense” more narrowly,
particularly in situations where a plaintiff repeatedly
encounters the same barrier? If the phrase “each offense” is
not susceptible to a narrower construction, under what
circumstances would the penalty scheme in section 54.3
violate the due process clause of the state constitution?




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           BEAUCHAMP V. CITY OF LONG BEACH               3

                           ORDER

   We respectfully request that the Supreme Court of
California exercise its discretion to decide the certified
questions set forth in Part II of this order.

                             I

                    Caption and Counsel

A. The caption of the case is:

               No. 11-55780
               LARRY BEAUCHAMP
                         Plaintiff-Appellant

               v.

               CITY OF LONG BEACH
                        Defendant-Appellee

B. The names and addresses of counsel for the parties are:

For Plaintiff-Appellant:

   Jeff A. Harrison, Barbosa, Metz & Harrison, LLP
   139 Richmond Street, El Segundo, CA 90245

For Defendant-Appellee:

   Monte H. Machit, Principal Deputy City Attorney
   Office of the Long Beach City Attorney
   333 West Ocean Blvd., 11th Floor
   Long Beach, CA 90802
4                 BEAUCHAMP V. CITY OF LONG BEACH

         Timothy T. Coates and Lillie Hsu
         Greines, Martin, Stein & Richland, LLP
         5900 Wilshire Blvd., 12th Floor
         Los Angeles, CA 90036

C. Designation of party to be deemed petitioner: Plaintiff-
   Appellant

                                        II

                             Question Certified

    Pursuant to Rule 8.548 of the California Rules of Court,
a panel of the United States Court of Appeals for the Ninth
Circuit, before which this appeal is pending, requests that the
Supreme Court of California answer the question presented
below. This court will accept the California Supreme Court’s
decision on this question. Our phrasing of the question is not
intended to restrict the California Supreme Court’s
consideration of the case. The question certified is as
follows.

             Section 54.3(a) of the California Civil Code
             provides that a person who violates the
             California Disabled Persons Act (CDPA), Cal.
             Civ. Code §§ 54, 54.1, is liable for actual
             damages for “each offense . . . but in no case
             less than one thousand dollars ($1,000).”1


    1
        Cal. Civ. Code § 54.3(a) provides, in relevant part:

             Any person or persons, firm or corporation who denies
             or interferes with admittance to or enjoyment of the
             public facilities as specified in Sections 54 and 54.1 or
           BEAUCHAMP V. CITY OF LONG BEACH                      5

       Does the phrase “each offense” refer to each
       occasion when a plaintiff encounters a barrier
       that denies the plaintiff full and equal access
       to a public facility, or should a trial court
       construe “each offense” more narrowly,
       particularly in situations where a plaintiff
       repeatedly encounters the same barrier? If the
       phrase “each offense” is not susceptible to a
       narrower construction, under what
       circumstances would the penalty scheme in
       section 54.3 violate the due process clause of
       the state constitution?

                                III

                      Statement of Facts

   Larry Beauchamp, a resident of Long Beach and a
quadriplegic, sued the City of Long Beach on February 19,
2010, for maintaining inaccessible sidewalks, curbs, and curb
ramps in violation of sections 51, 54, 54.1, and 54.3 of the
California Civil Code (among other claims). The district
court determined that Beauchamp was a “qualified individual
with a disability” for purposes of the CDPA, that the City’s


       otherwise interferes with the rights of an individual
       with a disability under Sections 54, 54.1 and 54.2 is
       liable for each offense for the actual damages and any
       amount as may be determined by a jury, or the court
       sitting without a jury, up to a maximum of three times
       the amount of actual damages but in no case less than
       one thousand dollars ($1,000), and attorney’s fees as
       may be determined by the court in addition thereto,
       suffered by any person denied any of the rights
       provided in Sections 54, 54.1, and 54.2.
6            BEAUCHAMP V. CITY OF LONG BEACH

streets and sidewalks constituted “public facilities,” for
purposes of section 54(a) of the California Civil Code, and
that certain barriers Beauchamp encountered on the City’s
streets and sidewalks denied him full and equal access to such
public facilities. Accordingly, the district court concluded
that Beauchamp was entitled to statutory damages under
section 54.3 for barriers he encountered on the City’s streets
and sidewalks during the relevant limitations period.2

    The district court held that Beauchamp established that he
was denied access by barriers at two specific locations and
inconvenienced, if not also denied access, by barriers at two
others. It made the following findings of fact:

         11. Once per month within the relevant
         statutory period, Plaintiff attempted to use the
         curb ramp and sidewalk segments near the
         Pizza Hut located at the intersection of Market
         Street and Orange Avenue. Plaintiff was
         denied access because the intersection lacked
         one curb cut, had three noncompliant curb
         cuts, and had raised sidewalk segments due to
         tree roots.

         12. Four times a week within the relevant
         statutory period, Plaintiff attempted to use the
         curb ramp and sidewalk segments near the bus
         stop at the intersection of Atlantic Avenue and
         51st Street, which is located near his
         residence.      Plaintiff was denied access



 2
   The district court concluded that the relevant limitations period was the
two year period before his action was filed on February 19, 2010.
           BEAUCHAMP V. CITY OF LONG BEACH                   7

       because the intersection            had    three
       noncompliant curb cuts.

       13. Within the relevant statutory period,
       Plaintiff frequently attempted to use South
       Street between Atlantic Avenue and Cherry
       Avenue, but had to travel in the street due to
       barriers in the sidewalk segments or a lack of
       curb cuts.

       14. Within the relevant statutory period,
       Plaintiff frequently attempted to use Atlantic
       Avenue between South Street and 36th Street,
       but had to travel in the street due to barriers in
       the sidewalk segments or a lack of curb cuts.

On the basis of these findings, the court concluded as follows:

       The Court finds that Plaintiff is entitled to
       $5,000 for each of the two barriers that
       Plaintiff frequently encountered near his
       home, identified in paragraphs 13 and 14 of
       the Findings of Fact above. Additionally,
       Plaintiff is entitled to $7,000 for the two
       barriers identified in paragraphs 11 and 12 of
       the Findings of Fact above. Thus in total, the
       Court awards Plaintiff $17,000 in statutory
       damages.

    The district court did not explain how it calculated these
damages or how it identified what constituted an “offense”
for purposes of section 54.3.
8          BEAUCHAMP V. CITY OF LONG BEACH

    Beauchamp timely appealed the district court’s damage
award, claiming he was entitled to $440,000 in statutory
damages because the district court found that he had
encountered barriers that denied him access on 440 distinct
occasions. The City argues that the district court could
exercise its discretion to aggregate repeated encounters with
the same barrier in order to ensure that damages under section
54.3 remain reasonable and commensurate with the
defendant’s culpability.

                              IV

               Explanation of Our Request

     We seek the California Supreme Court’s determination as
to the proper construction of “offense” for purposes of section
54.3, and specifically, whether multiple incidents of denials
of access due to encounters with the same barrier can
constitute a single “offense.” We ask for this assistance
because the meaning of “each offense” in the context of this
case is especially ambiguous and will have a significant
impact on these and similarly-situated parties, and there is
insufficient guidance in the relevant statutes and case law to
allow us to resolve this question.

                              A

    Although no California court has yet construed the phrase
“each offense” in section 54.3, the language and structure of
the CDPA indicates that each violation of a disabled
individual’s right “to full and equal access” to a public
facility constitutes a separate “offense,” for which the
individual is entitled to a minimum of $1,000 damages.
               BEAUCHAMP V. CITY OF LONG BEACH                           9

    Section 54.1 of the California Civil Code sets out a right
or entitlement: It provides that “[i]ndividuals with disabilities
shall be entitled to full and equal access” to public facilities.
Section 54.3 of the California Civil Code states that persons,
firms, or corporations that deny or interfere “with admittance
to or enjoyment of the public facilities . . . or otherwise
interfere[] with the rights of an individual with a disability”
are liable for “each offense for the actual damages and any
amount as may be determined by the jury, or the court sitting
without a jury, up to a maximum amount of three times the
amount of actual damages but in no case less than one
thousand dollars.” Although the word “offense” is not
defined in the CDPA, the structure of this section suggests
that each denial or interference with access constitutes an
“offense.”

    However, section 54.3 must be interpreted in light of
section 55.56 of the California Civil Code,3 which limited the



 3
     Sections 55.56(a), (b) and (e) state, in relevant part:

           (a) Statutory damages under either subdivision (a) of
           Section 52 or subdivision (a) of Section 54.3 may be
           recovered in a construction-related accessibility claim
           against a place of public accommodation only if a
           violation or violations of one or more
           construction-related accessibility standards denied the
           plaintiff full and equal access to the place of public
           accommodation on a particular occasion.

           (b) A plaintiff is denied full and equal access only if the
           plaintiff personally encountered the violation on a
           particular occasion, or the plaintiff was deterred from
           accessing a place of public accommodation on a
           particular occasion.
10          BEAUCHAMP V. CITY OF LONG BEACH

damages available under section 54.3 for certain types of
claims. Relevant here, section 55.56 provided that statutory
damages under section 54.3(a) could be recovered only if a
plaintiff personally encountered a barrier that denied the
plaintiff full and equal access, or was personally deterred
from accessing a place of public accommodation on a
particular occasion. Cal. Civ. Code § 55.56(b). It also
provided that courts could not assess damages based on the
number of violations that were identified at a particular
location, but only for “each particular occasion that a plaintiff
was denied full and equal access.” Id. § 55.56(e). These
restrictions suggest that the Legislature intended to prevent
plaintiffs from recovering damages for multiple
nonconforming barriers in a public facility if the plaintiff did
not actually encounter such barriers. This language therefore
raises the negative inference that where a plaintiff is denied
full and equal access by barriers the plaintiff personally
encounters, the plaintiff is entitled to $1,000 per each such
denial of access.




        (e) Statutory damages may be assessed pursuant to
        subdivision (a) based on each particular occasion that
        the plaintiff was denied full and equal access, and not
        upon the number of violations of construction-related
        accessibility standards identified at the place of public
        accommodation where the denial of full and equal
        access occurred. If the place of public accommodation
        consists of distinct facilities that offer distinct services,
        statutory damages may be assessed based on each
        denial of full and equal access to the distinct facility,
        and not upon the number of violations of
        construction-related accessibility standards identified at
        the place of public accommodation where the denial of
        full and equal access occurred.
           BEAUCHAMP V. CITY OF LONG BEACH                   11

                               B

    Although we believe it is reasonable to construe section
54.3 as requiring courts to impose $1,000 per each denial of
access, the California Supreme Court and state appellate
courts have suggested that penalty schemes such as those
embodied in section 54.3 are to be construed narrowly.

    As a general rule, the California Supreme Court has
looked “with disfavor on ever-mounting penalties” and has
“narrowly construed the statutes which either require or
permit them.” Hale v. Morgan, 22 Cal. 3d 388, 401 (1978).
In People ex rel. Younger v. Superior Court, 16 Cal. 3d 30
(1976), for instance, the Court considered a statute imposing
a $6,000 per day fine for each day a defendant “‘causes or
permits any oil . . . to be deposited in or on any of the waters
of the state.’” Id. at 43. To ensure that the penalties
corresponded with the defendant’s culpability, the court
applied a narrowing construction to impose liability only for
each day in which the defendant actively deposited oil on the
water, not for each day during which the oil remained in the
water. Id. at 43–44; see also People v. Super. Ct. (Jayhill
Corp.), 9 Cal. 3d 283, 288–89 (1973) (narrowly construing a
statute imposing a $2,500 penalty for each violation of a false
advertising statute by holding that a “violation” should be
based on “the number of persons to whom misrepresentations
were made,” rather than on “the number of separately
identifiable misrepresentations involved”).

    Following the California Supreme Court’s lead, state
appellate courts have likewise narrowly construed statutes
that impose penalties “per violation” or “per offense” where
appropriate. In interpreting a statute imposing a statutory
penalty of $2,500 for “each violation” of regulations relating
12         BEAUCHAMP V. CITY OF LONG BEACH

to nursing homes, for instance, a state appellate court held
that a trial court had discretion to construe “violation”
differently depending on the particular facts of the case. See
People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.
App. 3d 509, 535 (1984), abrogated on other grounds by Cal-
Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th
163 (1999). The court reasoned that “to interpret the words
‘each violation’ to authorize a $2,500 sanction for each and
every failure . . . would result in an unreasonable or
oppressive statutory penalty,” while on the other hand, “to
take all violations constituting evidence of a business practice
in violation of a particular rule or regulation and count them
as only one violation would be equally unreasonable.” Id. at
534–35 (citing Hale, 22 Cal. 3d at 399). Therefore, the court
concluded, a trial court should use a circumstances-based
analysis to determine what penalties were justified based on
the defendants’ conduct. Id.; see also Hewlett v. Squaw
Valley Ski Corp., 54 Cal. App. 4th 499, 536–37 (1997)
(holding that a trial court had discretion to construe an unfair
competition statute, which imposed a minimum of $2,500
penalty for “each violation,” as allowing it to impose
damages based on separate instances of wrongful tree
harvesting rather than the number of trees removed).

    We further note that when a penalty scheme set forth in
a state statute is not susceptible to a narrowing construction,
the California Supreme Court has considered whether the
imposition of mandatory, ever-mounting penalties violates
the due process clause of the state and federal constitutions in
a particular case. See Hale, 22 Cal. 3d at 403–04 (holding
that although a mandatory $100-per-day penalty scheme was
not necessarily facially unconstitutional, the imposition of a
$17,300 penalty under the statute was constitutionally
excessive in that case, given the defendant’s lesser culpability
           BEAUCHAMP V. CITY OF LONG BEACH                  13

and the possibility of an unmerited windfall to the plaintiff).
The California Supreme Court has indicated that trial courts
must make this constitutional assessment on a case-by-case
basis. See Kinney v. Vaccari, 27 Cal. 3d 348, 353, 356 (1980)
(upholding a $36,000 penalty under section 789.3 of the
California Civil Code because it was “proportioned to the
landlord’s misconduct and necessary to achieve the penalty’s
deterrent purposes”); see also City and County of San
Francisco v. Sainez, 77 Cal. App. 4th 1302, 1312–16 (2000)
(conducting an “as applied” analysis to decide whether a
statute authorizing a $1,000 per day penalty for violations of
the Housing Code violated due process, and concluding that
the trial court did not abuse its discretion in imposing a
$663,000 penalty because it was not “impermissibly
disproportionate ‘to the conduct’ or to the defendants’ ‘net
worth’”).

    In sum, we read California cases to suggest that where a
statute allows for the imposition of ever-mounting penalties,
a trial court should first consider whether the statute is
susceptible to a narrowing construction in a particular case.
Cf. People v. Toomey, 157 Cal. App. 3d 1, 22 (1984)
(explaining that where a statute “fails to specify what
constitutes a single violation,” the courts should “determine
appropriate penalties on a case-by-case basis”). Furthermore,
if a statute is not susceptible to a narrowing construction, it
appears the trial court should consider whether the application
of the penalty provision is constitutionally excessive as
applied under the due process clause of the state and federal
constitutions. Hale, 22 Cal. 3d at 404.
14         BEAUCHAMP V. CITY OF LONG BEACH

                               C

    In light of our review, we are uncertain about how to
construe “each offense” in section 54.3 in a situation where
a plaintiff has encountered the same barrier on multiple
occasions. Indeed, at least one district court that encountered
this precise question declined to address the issue in the
absence of any guidance from California courts. See
Grutman v. Regents of Univ. of Cal., 807 F. Supp. 2d 861,
870 (N.D. Cal. 2011) (declining to exercise supplemental
jurisdiction over the question whether plaintiff was entitled to
recover for each occasion that she encountered the non-
compliant front door in her dormitory, and noting that
plaintiff’s interpretation of “each offense” would result in a
$2 million damage award, while defendant’s interpretation
would “allow for an award of only a nominal $4,000”).

    Because section 54.3 does not directly define “each
offense,” it may be susceptible to a narrowing construction.
A trial court would not be compelled to construe that phrase
to mean each separate encounter with a barrier, particularly
where a California court has stated that “[n]ot every denial of
‘full and equal access’ under section 54.1 . . . gives rise to a
cause of action for damages under section 54.3.” Urhausen
v. Longs Drug Stores Cal., Inc., 155 Cal. App. 4th 254, 265
(2007). Given that section 54.3 imposes mandatory, ever-
mounting penalties, the cases reviewed above suggest that
California courts may have the discretion to construe section
54.3 narrowly in an appropriate case. For instance, a trial
court could plausibly define “each offense” to mean each
barrier personally encountered by the plaintiff, rather than
each occasion when the plaintiff encountered that barrier. Cf.
Jayhill Corp., 9 Cal. 3d at 289.
           BEAUCHAMP V. CITY OF LONG BEACH                   15

    Moreover, if such an interpretation of “each offense”
were not permissible (for example, because the California
Legislature’s enactment of section 55.56 indicated that it did
not intend any such limitation), then Hale suggests trial
courts would still be required to determine whether imposing
a $1,000 penalty for “each offense” would be excessive under
the state constitution. It is not clear how the California
Supreme Court would analyze the situation in this case: on
the one hand, Beauchamp continued to travel the same routes
knowing there were barriers that denied him access; on the
other hand, after 17 years, the City has still failed to remove
the barriers in the sidewalks in his neighborhood. The
California cases we have reviewed do not provide clear
guidance on how to weigh, under California law, the need for
compliance with the desire to avoid awarding windfalls to
plaintiffs in the CDPA context generally, much less in the
specific situation where a plaintiff repeatedly encounters the
same non-compliant barriers.

                               D

    In sum, as we read California law, we do not know
whether the district court in this case was required to construe
section 54.3 as awarding damages for each of Beauchamp’s
440 encounters with a barrier that denied him access, had the
discretion to apply some narrowing construction, or could
reduce the award to avoid due process concerns. The
consequences of taking any of these approaches will have a
significant impact on both the fisc of public entities and the
ability of disabled individuals to enforce their rights. We
therefore submit that this question is worthy of a decision by
the California Supreme Court, and that this case presents a
suitable vehicle for the California Supreme Court to address
this question. See Cal. Rules of Court 8.548(a). The answer
16         BEAUCHAMP V. CITY OF LONG BEACH

given by the California Supreme Court will dispose of this
appeal currently pending before the Ninth Circuit, as well as
guide the decisions in the other federal cases applying
California law.

                               V

                 Accompanying Materials

    The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of the record, and an original and
ten copies of the request with a certification of service on the
parties, pursuant to California Rules of Court 8.548(c), (d).

    Further proceedings before us are stayed pending the
California Supreme Court’s decision regarding certification,
and in the event the California Supreme Court accepts
certification, pending our receipt of the answers to the
questions certified. Submission of this case is withdrawn.

    After the California Supreme Court makes its
determination whether to accept certification of these
questions, the parties shall file a joint report informing this
court of the decision. If the California Supreme Court
accepts the certified questions, the parties shall file a joint
status report to our court every six months after the date of
acceptance, or more frequently if circumstances warrant.

    If the California Supreme Court denies the request for
certification, this case will be automatically resubmitted upon
notice of that denial. If the California Supreme Court accepts
the certified question, the case will be automatically
          BEAUCHAMP V. CITY OF LONG BEACH              17

resubmitted upon receipt of the California Supreme Court’s
answer to the certified question.

   SO ORDERED.
