                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KENNETH MUNSON,                                No. 06-56208
                 Plaintiff-Appellee,              D.C. No.
                v.                           CV-05-05942-AHM
DEL TACO, INC., a California                  Central District of
corporation,                                     California,
             Defendant-Appellant.              Los Angeles
                                                  ORDER
                                               CERTIFYING
                                              QUESTIONS TO
                                              THE SUPREME
                                                COURT OF
                                              CALIFORNIA


                      Filed April 14, 2008

      Before: Susan P. Graber and Marsha S. Berzon,
    Circuit Judges, and Claudia Wilken,* District Judge.



                           COUNSEL

Lisa A. Wegner and Melinda Evans, Call, Jensen & Ferrell,
Newport Beach, California, for the defendant-appellant.

Russell C. Handy and Mark D. Potter, Center for Disability
Access, LLP, San Marcos, California, for the plaintiff-
appellee.

  *The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.

                               3855
3856               MUNSON v. DEL TACO, INC.
                           ORDER

   We respectfully ask the California Supreme Court to exer-
cise its discretion and decide the certified questions below,
pursuant to California Rule of Court 8.548. The resolution of
these questions will determine the outcome of this appeal, and
no clear controlling California precedent exists. See Cal. R.
Ct. 8.548(a). We are mindful that our request adds to the
demanding caseload of the California Supreme Court, but this
case raises difficult questions of California law on which trial
courts, both state and federal, are sharply divided. The ques-
tions have broad implications for disability rights under the
Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51,
and for countless lawsuits alleging violations of the Unruh
Act. Comity and federalism counsel that the California
Supreme Court, rather than this court, should answer these
questions.

1.   Administrative Information
     Ninth Circuit Case No. 06-56208,
     KENNETH MUNSON, Plaintiff-Appellee
     v.
     DEL TACO, INC., Defendant-Appellant.

  Counsel for Kenneth Munson: Mark D. Potter and Russell
C. Handy, Center for Disability Access, LLP, 100 E. San
Marcos Blvd., Suite 400, San Marcos, California 92069.

  Counsel for Del Taco: Scott J. Ferrell, Lisa A. Wegner, and
Melinda Evans, Call, Jensen & Ferrell, 610 Newport Center
Drive, Suite 700, Newport Beach, California 92660.

   Del Taco is deemed the petitioner in this request because
it appeals the district court’s rulings on the issues identified
below.

2.   Questions Certified
                   MUNSON v. DEL TACO, INC.                     3857
  We certify to the California Supreme Court the following
questions of state law that are presently before us. Our phras-
ing of the questions should not restrict the California Supreme
Court’s consideration of the issues involved, and that court
may rephrase the questions. We will accept the decision of the
California Supreme Court. See Aceves v. Allstate Ins. Co., 68
F.3d 1160, 1164 (9th Cir. 1995) (holding that the Ninth Cir-
cuit is bound to follow the California Supreme Court’s inter-
pretation of California law).

   1. Must a plaintiff who seeks damages under California
Civil Code section 52, claiming the denial of full and equal
treatment on the basis of disability in violation of the Unruh
Act, Cal. Civ. Code § 51, prove “intentional discrimination”?

   2. If the answer to Question 1 is “yes,” what does “inten-
tional discrimination” mean in this context? For example,
does intentional discrimination mean:

    -   an intent to deny full and equal treatment;

    -   an intent to act (or not act) in a way that the actor
        is aware will fail to provide full and equal treat-
        ment;

    -   an intent to violate the ADA;

    -   an intent not to remove barriers to access—in
        other words, to maintain the current architectural
        layout;

    -   that, as defined by Judicial Council of California
        Civil Jury Instruction (“CACI”) 3020, disability
        was a “motivating reason” in denying full and
        equal treatment; or

    -   deliberate indifference to whether the actor’s con-
        duct will provide full and equal treatment?
3858                  MUNSON v. DEL TACO, INC.
3.       Statement of Facts

   Plaintiff Kenneth Munson has a physical disability that
requires that he use a wheelchair. Plaintiff alleges that he vis-
ited the Del Taco restaurant in San Bernardino, California,
which is owned and operated by Defendant Del Taco, Inc.
Plaintiff further alleges that, at the Del Taco restaurant, he
encountered architectural barriers that denied him legally
required access to the parking area and restrooms.

  Plaintiff filed suit against Defendant in the Central District
of California. He alleged violations of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101—
12213, and the Unruh Act, Cal. Civ. Code § 51. Plaintiff
sought injunctive relief, damages, and attorney fees under
California Civil Code section 52 for the alleged Unruh Act
violations.

   On cross-motions for summary judgment, the district court
granted partial summary judgment in favor of Plaintiff. The
court reasoned that “there is no genuine issue of fact that an
architectural barrier existed” and that “there is no genuine
issue of fact that the restroom doorway widening was readily
achievable.” Consequently, the court ruled “that there is no
genuine issue of fact that an ADA violation occurred. Thus,
[Defendant] is liable under the Unruh Act and [Plaintiff] is
entitled to pursue statutory damages.”1

  The parties stipulated to $12,000 in damages under the
Unruh Act in lieu of holding a jury trial on the issue, with
Defendant reserving the right to appeal any adverse orders or
judgments. The district court entered judgment, and Defen-
     1
    Our precedents interpreting California law hold that “no showing of
intentional discrimination is required where [an] Unruh Act violation is
premised on an ADA violation.” Lentini v. Cal. Ctr. for the Arts, 370 F.3d
837, 847 (9th Cir. 2004). As explained infra, there is a recent California
Court of Appeal decision to the contrary.
                    MUNSON v. DEL TACO, INC.                    3859
dant timely appealed the district court’s grant of Plaintiff’s
motion for partial summary judgment.

   Defendant argues on appeal that it is entitled to summary
judgment because intent is required under the Unruh Act and
Plaintiff failed to put forth any evidence that Defendant inten-
tionally discriminated against him. Plaintiff does not contend
that he provided evidence that Defendant was motivated by
animus against people with disabilities, but argues that such
intent is not required or, in the alternative, that the requisite
intent is the intent not to remove barriers to access where
readily achievable.

4.   Need for Certification

   The certified questions present issues of significant prece-
dential and public policy importance. Both California state
courts and federal courts have considered whether a plaintiff
who claims a denial of full and equal treatment on the basis
of disability in violation of the Unruh Act, Cal. Civ. Code
§ 51, and seeks damages under California Civil Code section
52, must prove “intentional discrimination.” But no clear con-
trolling California precedent answers that question. In addi-
tion, no California precedent answers what a showing of
“intentional discrimination” requires.

   Under the Unruh Act, “[a]ll persons . . . no matter what
their . . . disability . . . are entitled to the full and equal accom-
modations, advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.” Cal. Civ.
Code § 51(b). California Civil Code section 52(a) provides a
remedy for a violation of those rights:

        Whoever denies, aids or incites a denial, or makes
     any discrimination or distinction contrary to Section
     51, 51.5, or 51.6, is liable for each and every offense
     for the actual damages, and any amount that may be
     determined by a jury, or a court sitting without a
3860               MUNSON v. DEL TACO, INC.
    jury, up to a maximum of three times the amount of
    actual damage but in no case less than four thousand
    dollars ($4,000), and any attorney’s fees that may be
    determined by the court in addition thereto, suffered
    by any person denied the rights provided in Section
    51, 51.5, or 51.6.

   In Harris v. Capital Growth Investors XIV, 805 P.2d 873,
893 (Cal. 1991), the California Supreme Court “h[e]ld that a
plaintiff seeking to establish a case under the Unruh Act must
plead and prove intentional discrimination in public accom-
modations in violation of the terms of the Act.” (Emphasis
added.) Among other reasons supporting this conclusion, the
court noted that section 52’s

    references to “aiding” and “inciting” denial of access
    to public accommodations, to making discrimina-
    tions and restrictions, and to the commission of an
    “offense” imply willful, affirmative misconduct on
    the part of those who violate the Act. Moreover, the
    damages provision allowing for an exemplary award
    of up to treble the actual damages suffered with a
    stated minimum amount reveals a desire to punish
    intentional and morally offensive conduct.

Id. at 891.

    The following year, the California legislature amended the
Unruh Act to provide that “[a] violation of the right of any
individual under the Americans with Disabilities Act of 1990
. . . shall also constitute a violation of this section.” Cal. Civ.
Code § 51(f). The legislative history of that amendment does
not refer to Harris. See Gunther v. Lin, 50 Cal. Rptr. 3d 317,
334-35 (Ct. App. 2007) (noting the absence of any mention of
the Harris intentional discrimination issue in the bill’s legisla-
tive history). Under the ADA, though, “a plaintiff need not
show intentional discrimination in order to make out a viola-
tion.” Lentini, 370 F.3d at 846; see also 42 U.S.C.
                   MUNSON v. DEL TACO, INC.                   3861
§ 12182(b)(2)(A) (enumerating violations of the ADA by
public accommodations).

   In Lentini, 370 F.3d 837, we held that the 1992 amendment
to the Unruh Act eviscerated Harris’ requirement of inten-
tional discrimination in cases involving violations of the
ADA:

       We find that, regardless of whether Harris may
    continue to have relevance to other Unruh Act suits,
    no showing of intentional discrimination is required
    where the Unruh Act violation is premised on an
    ADA violation. This result is mandated by the plain
    meaning of the Unruh Act’s language, which states
    that a violation of the ADA is, per se, a violation of
    the Unruh Act. Because the Unruh Act has adopted
    the full expanse of the ADA, it must follow, that the
    same standards for liability apply under both Acts.

Id. at 847 (citation and internal quotation marks omitted).

    However, in Gunther, 50 Cal. Rptr. 3d at 342, the Califor-
nia Court of Appeal held that Lentini was wrongly decided:
“To the degree that . . . Lentini is read as authorizing mone-
tary damage and minimum damage claims under section 52,
it is not persuasive as a statement of state law . . . .” The Court
of Appeal explained that we erred in Lentini because we
failed to recognize that the state legislature’s amendment to
section 51 did not alter the triggering provision of section 52
that Harris had interpreted. Id. In addition, the court reasoned
that Lentini’s interpretation of section 52 rendered California
Civil Code section 54.3 redundant and “had the consequence
of encouraging abusive litigation.” Id. at 342-43. The court
held that the existence of a violation is not identical to the
existence of a particular remedy and that the section 52 rem-
edy “is reserved for intentional violations.” Id. at 343. The
court did not define what a showing of intent under section 52
requires, but the facts of the case suggest that it may have
3862               MUNSON v. DEL TACO, INC.
meant an intent to violate the ADA. See id. at 323 (“There is
. . . no question that defendant Lin never intended to violate
the ADA.”).

   Our duty as a federal court in this case “is to ascertain and
apply the existing California law.” Mangold v. Cal. Pub.
Utils. Comm’n, 67 F.3d 1470, 1479 (9th Cir. 1995) (internal
quotation marks omitted). As our previous interpretation of
California law, Lentini is “only binding in the absence of any
subsequent indication from the California courts that our
interpretation was incorrect.” Wolfson v. Watts (In re Watts),
298 F.3d 1077, 1083 (9th Cir. 2002) (internal quotation marks
omitted). Gunther indicates that our interpretation was incor-
rect. Consequently, “[i]n the absence of a pronouncement by
the highest court of a state, [we] must follow the decision of
the intermediate appellate courts of the state unless there is
convincing evidence that the highest court of the state would
decide differently.” In re Watts, 298 F.3d at 1083 (emphasis
and internal quotation marks omitted).

  Here, we are in doubt about whether the California
Supreme Court would follow Gunther. Gunther’s

    conclusion is premised on the view that the Unruh
    Act is comprised only of Section 51, but this
    divorces the law from its enforcement provision in
    Section 52. While Gunther notes that, by its own
    terms, the Unruh Act comprises only Section 51, . . .
    even the Harris court referred to the Unruh Act as
    encompassing the enforcement provision found in
    Section 52.

Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1137
(E.D. Cal. 2007) (citation omitted). Under that view of the
Unruh Act, the California legislature’s amendment to section
51 necessarily would affect the “triggering” provision of sec-
tion 52. In addition, “[t]he legislative history of Section 51(f)
reveals an intent to include unintentional disability discrimi-
                  MUNSON v. DEL TACO, INC.                3863
nation within the scope of the Unruh Act.” Id. The California
Assembly and Senate Committees on the Judiciary each
issued a report that stated that section 51(f) would “ ‘[m]ake
a violation of the ADA a violation of the Unruh Act[,]
[t]hereby providing persons injured by a violation of the ADA
with the remedies provided by the Unruh Act.’ ” Id. at
1137-38 (quoting California Assembly Committee on Judi-
ciary report on AB 1077, at 2 (Jan. 2, 1992); California Senate
Committee on Judiciary report on AB 1077, at 5 (June 1,
1992)). Finally, section 54.3 “and the Unruh Act are inevita-
bly redundant in some respects, no matter how the court con-
strues the latter.” Id. at 1139. Section 54.3 “authorizes
damages for both intentional and unintentional discrimination,
because intent is simply irrelevant under the statute. . . .
Accordingly, the portion of [section 54.3] covering intentional
discrimination is inevitably redundant with the portion of the
Unruh Act covering intentional discrimination.” Id. at
1139-40 (citation omitted); see also R.K. v. Hayward Unified
Sch. Dist., No. C-06-07836, 2007 WL 4169111, at *4 n.4
(N.D. Cal. Nov. 20, 2007) (order) (rejecting Gunther); Simo-
nelli v. Univ. of Cal.-Berkeley, No. C-02-1107, 2007 WL
4165958, at *2-*3 (N.D. Cal. Nov. 7, 2007) (order) (same);
Nat’l Fed. of the Blind v. Target Corp., No. C-06-1802, 2007
WL 2846462, at *19 (N.D. Cal. Oct. 2, 2007) (same); John-
son v. Barlow, No. Civ.-S-06-01150, 2007 WL 1723617, at
*3 (E.D. Cal. June 11, 2007) (order) (same).

   The foregoing concerns about Gunther’s reasoning leave us
in doubt as to whether the California Supreme Court would
hold in conformity with it. Consequently, we are uncertain as
to how to predict accurately what the California Supreme
Court would hold concerning a question that has far-reaching
implications for California disability law.

   Moreover, even assuming that Gunther’s holding accu-
rately represents California law, no California state appellate
court has addressed what a showing of “intentional discrimi-
nation” requires. Harris held that “[a] disparate impact analy-
3864                 MUNSON v. DEL TACO, INC.
sis or test does not apply to Unruh Act claims,” 805 P.2d at
893, but neither Harris nor Gunther specifies whether it is
knowing or deliberately indifferent conduct that meets the
statutory standard, whether the intent must be to violate the
statute, to leave in place existing barriers to access, or to dis-
advantage disabled individuals, whether the “motivating rea-
son” CACI instruction correctly interprets California law, see
CACI 3020 (“The causation standard is still an open issue
under [the Unruh Act].”), or whether a failure to provide
accessible facilities to disabled individuals meets the statutory
standard, see H. v. Lemahieu, 513 F.3d 922, 935-39 (9th Cir.
2008) (discussing the difference between disparate impact and
failure to accommodate). The answers to these questions will
determine whether Plaintiff is entitled to summary judgment
under section 52. They also “present significant issues . . .
with important public policy ramifications, and . . . have not
yet been resolved by the state courts. We [thus] request certi-
fication . . . because of deference to the state court on signifi-
cant state law matters.” Kremen v. Cohen, 325 F.3d 1035,
1037 (9th Cir. 2003).

5.    Stay and Withdrawal from Submission

   All further proceedings in this case in this court are stayed
pending final action by the California Supreme Court. This
case is withdrawn from submission until further order of this
court. The parties shall notify the Clerk of this court within
one week after the California Supreme Court accepts or
rejects certification, and again within one week if the Califor-
nia Supreme Court renders an opinion.

   The Clerk shall file this order and 10 copies, along with all
briefs in this appeal, with the Supreme Court of California;
provide certificates of service to the parties; and provide addi-
tional record materials if so requested by the Supreme Court
of California. See Cal. R. Ct. 8.548(c)-(d).

     This panel retains jurisdiction over further proceedings.
            MUNSON v. DEL TACO, INC.   3865
IT IS SO ORDERED.
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