Judge: Bruce G. Iwasaki, Case: 20STCV32997, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV32997    Hearing Date: January 27, 2023    Dept: 58

Judge Bruce G. Iwasaki

Hearing Date:             January 27, 2023

Case Names:               Myra Garcia v. Manulife Plaza et al.

Case Nos.:                   20STCV32997           

Matter:                        Motion for summary adjudication

Moving Party:             Defendant John Hancock Life Insurance Company, USA dba John Hancock Real Estate (erroneously sued as Manulife Plaza)

Responding Party:      Plaintiff Myra Garcia

                                    Intervenor American Casualty Company of Reading Pennsylvania

Background

This is a personal injury action.  Myra Garcia (Garcia or Plaintiff) sued John Hancock Life Insurance Company (John Hancock or Defendant) and Otis Elevator Company for products liability, premises liability, general negligence, and for violation of the Disabled Persons Act (the Act).  American Casualty Company of Reading, Pennsylvania (American Casualty) filed a Complaint in Intervention.[1] 

On March 9, 2020, Garcia entered Defendant’s building, where she worked on the 17^th floor.  She proceeded to elevator number 8 and attempted to enter.  However, as she entered the elevator, she tripped, allegedly because the elevator floor was higher than the floor she was standing on.  Garcia fractured her femur. At the time of her fall, Garcia suffered from diabetes and lung disease/asthma.

Defendant moved for summary adjudication on the first (products liability) and fourth (violation of the Act) causes of action.  Plaintiff then dismissed the products liability cause of action.  Thus, the remaining cause of action at issue is the denial of Plaintiff’s full and equal access to Defendant’s building under Civil Code section 54, et seq.

            In its motion, Defendant argues that Plaintiff lacks standing because she fails to indicate how she was denied access based on her disability, and failed to comply with the procedural requirements under Civil Code section 55.3, subdivision (b)[2]. John Hancock also argues that it reasonably relied on the approval and permits of the elevator by the Los Angeles Department of Building and Safety (LADBS).

Plaintiff opposed the motion.  She argues that her diabetes and lung disease qualify as disabilities under the Act, her physician testified that lung disease affects her respiratory system while the diabetes affects her circulatory system, and she was fatigued at the time of the incident.  She contends that the severity of her disability is a question of fact, and any level of disability affords her standing under the Act.  As to the procedural requirements, she asserts that those are de minimums procedures that are inconsequential given that Defendant stipulated to allowing her to amend the Complaint to allege that cause of action, and that LADBS does not guarantee the elevator’s safety after the time of inspection. 

American Casualty joined in Plaintiff’s opposition.  It argues there are questions of fact on whether Defendant can rely on operating permits issued based on prior inspections and the severity of Plaintiff’s disability.

Defendant replied, reiterating that the denial of equal access must be due to her disability.

            Plaintiff filed objections to Defendant’s evidence but failed to comply with California Rules of Court, rule 3.1354.  She merely references the paragraph without specifically stating the contents of the objected material.  Plaintiff is reminded to comply with the Rules of Court.  Defendant also filed numerous objections to Plaintiff’s Declarations.  The Court declines to rule on the objections because none of them are “material to the disposition of the motion.”  (Code Civ. Proc, § 437c, subd. (q).)

Legal Standard

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc., § 437c,¿subd. (a).)  “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).)  A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action.  (Code Civ. Proc., § 437c(p)(2).) The facts are to be construed in the light most favorable to the opposing party.  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926.)

Discussion

            John Hancock’s arguments are as to Garcia’s lack of standing to bring her disability discrimination claim, her failure to comply with procedural requirements, and an affirmative defense of reasonable reliance on LADBS’ permits.  The Court agrees that Garcia lacks standing to pursue her claim for denial of equal access.  It therefore does not consider the other two arguments.

Plaintiff lacks standing to pursue her disability discrimination claim because she does not show how her disability denied her full and equal access.

“The [Act] is ‘intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public.’”  (Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401. 1412.)  Civil Code section 54.1, subdivision (a)(1) provides that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . modes of transportation . . . places of public accommodation . . . and all other places to which the public is invited.”

“Full and equal access” is defined by Civil Code section 54, subdivision (a)(3) to mean access that complies with the regulations developed under the federal Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12111-12117) (ADA).  Under the ADA, full and equal access means that disabled individuals shall not be “screen[ed] out” by the imposition of “eligibility criteria” from enjoying goods, services, facilities, privileges, advantages, or accommodations unless such criteria can be shown to be necessary for the provision of that being offered.  (42 U.S.C. § 12182(b)(2)(A)(i).)

However, “[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.  Rather, section 54.3, subdivision (a) states that a cause of action for damages arises against a person who ‘denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54, 54.1 and 54.2.”  (Urhausen v. Longs Drug Stores Cal., Inc. (2007) 155 Cal.App.4th 254, 265 (Urhausen).)  Further, “section 54.3 imposes the standing requirement that the plaintiff have suffered an actual denial of equal access before any suit for damages can be brought.”  (Id. at p. 266.)  In other words, “to maintain an action for damages pursuant to section 54 et seq., an individual must take the additional step of establishing that he or she was denied equal access on a particular occasion.”  (Id. at p. 262, original italics.) 

John Hancock relies on the Urhausen case to argue lack of standing, while Garcia attempts to distinguish it. In that case, the plaintiff, who could not walk without crutches, parked her car at the defendant drugstore’s parking lot.  While she had a disabled parking placard, she parked in the adjacent spot next to the disabled parking spot.  (155 Cal.App.4th at pp. 258-259.)  After she exited, she walked diagonally across the empty disabled parking spot and up the curb to the sidewalk.  Because the slope for the disabled parking spot violated state and federal law, Plaintiff fell and broke her wrist. (Id. at p. 259.)  The plaintiff sued the drugstore, alleging that it denied her equal access to the store because the space where she fell did not comply with the governing accessibility standards.  The Court of Appeal affirmed the trial court’s order granting defendant’s summary judgment because the drug store provided her access through the adjacent access aisle, curb cutout, and ramp. (Id. at p. 260.) 

While the Urhausen plaintiff argued she had standing “because the sudden increase in slope near the curb caused her to fall,” the appellate court disagreed, stating that “[w]hile we recognize that the failure of the parking space to comply with slope requirements was the cause of plaintiff’s injury, and therefore a cause of her failure to reach the entrance of the drugstore, we do not believe that this is sufficient to demonstrate that plaintiff was denied equal access to the store. The phrase ‘denied equal access’ necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access. It is undisputed, however, that [the drugstore] provided access to its entrance by way of an aisle, curb cut, and ramp installed for the particular use of the disabled. Because this means of access was at all times available for plaintiff’s use, she cannot demonstrate that she was denied equal access to the store without demonstrating that this route, too, was inadequate. By her own acknowledgment, however, she was fully capable of negotiating a typical disabled access ramp. It was plaintiff's injury, and not the physical configuration of the store, that prevented plaintiff from entering. Accordingly, she was not denied equal access to the store; rather, she was unable to enter as a result of her fall.” (Urhausen, supra, 155 Cal.App.4th at p. 263, italics added.)

The Urhausen court stated the purpose of the Act was “not to provide a cause of action for disabled persons who have suffered physical injury but to persons who have been denied the same access to public facilities as persons without a disability. . . . ‘[t]he impediments to the physically handicappeds’ interaction in community life is the inequity which section 54 et seq. . . . seek[s] to prevent.’”  The court further explained that “[i]f plaintiff had attempted to use the disabled access aisle, curb cut, and ramp and had fallen because these were not in compliance with statutory requirements, she would presumably have a cause of action under the [Act].  The cause of action would not arise because plaintiff was injured, however, but because her fall suggested that the store did not provide safe access for disabled persons, thereby denying them equal access. In that situation, her injury would not be the basis of the cause of action but would be evidence of a lack of equal access. Here, in contrast,  plaintiff did not demonstrate that the means for disabled access provided by [the drugstore] was unsafe or otherwise unusable by her. Because plaintiff did not demonstrate that she was denied equal access, section 54.3 provides no remedy for her injury.” (Id. at pp. 264-265.)

            Assuming for this motion that the elevator floor was misaligned when Garcia entered it, and further assuming that she suffered from diabetes and asthma, did the condition of the elevator deny her equal access?  The purpose of the Act and the cases interpreting it indicate that the answer is no.

“‘In essence, an individual plaintiff has standing under the Act if he or she has been the victim of the defendant’s discriminatory act.’”  (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1220, italics added.)  Inherent in the definition of a discriminatory act is the requirement that the defendant treated the plaintiff different because of her disability.  “[P]ublished cases [under the Act] have involved challenges of physically disabled individuals denied access to some public site or service due to their disability.  (Turner v. Association of American Medical Colleges, supra, 167 Cal.App.4th at p. 1412, italics added.) 

Here, it is undisputed that Garcia’s alleged injuries are her asthma and diabetes.  (Separate Statement (SS) 19.)  Facially, it is unclear how her asthma and diabetes directly impact her mobility.  She admits that her walking is generally unimpaired unless she has a “really bad attack of asthma.”  (SS 59.)  And she concedes that she generally does not exhibit any symptoms from her diabetes.  (SS 61.)  It is true that Garcia testified to being mildly fatigued on the day of the incident and that she is sometimes tired from her diabetes medication.  However, individuals without diabetes or asthma would equally be likely to encounter the alleged violation here (i.e., the mis-leveled elevator) and injure themselves.  There is no indication that her diabetes or asthma is what caused Garcia to injure herself on that day; rather, her tripping on the elevator is what prevented her from accessing the Building.  (See Urhausen, supra, 155 Cal.App.4th at p. 263.)  The testimony of Dr. Karen Lau that Garcia’s asthma and diabetes “can” affect her walking is too speculative.  (Wegman Decl., Ex. 9, Lau Depo., pp. 165:11-166:22.)

Garcia also concedes that Disabled Persons Act incorporates the provisions from the Americans with Disabilities Act.  (Opposition, p. 6:3-6.)  The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a), italics added.)  This concept is explored in numerous federal court cases discussing Article III standing.  “An ADA plaintiff has suffered an injury-in-fact when he encounters ‘a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability.’”  (O'Campo v. Bed Bath & Beyond of Cal., LLC (9th Cir. 2015) 610 F.App’x 706, 708, original italics [alleged violations would cause problems for those in a wheelchair, but not those using a cane]; see also Chapman v. Pier 1 Imports (U.S.), Inc. (9th Cir. 2011) 631 F.3d 939, 947 [“a ‘barrier’ will only amount to such interference [under the ADA] if it affects the plaintiff’s full and equal enjoyment of the facility on account of his particular disability”].)  For example, “a blind person would have standing to assert an ADA violation where a newly constructed multi-story facility has elevators lacking floor buttons in Braille, while [plaintiff], who we assume can see and press the floor buttons, would not. [Citation.] Where the barrier is related to the particular plaintiff’s disability, however, an encounter with the barrier necessarily injures the plaintiff by depriving him of full and equal enjoyment of the facility.”  (Chapman, supra, 631 F.3d at p. 947, n.4; Doran v. 7-Eleven, Inc. (9th Cir. 2008) 524 F.3d 1034, 1044 [a plaintiff in a wheelchair “cannot challenge all of the ADA violations” in defendant’s store, but only those that “might reasonably affect a wheelchair user’s full enjoyment of the store]; accord Rodriguez v. Barrita, Inc. (N.D.Cal. 2014) 10 F. Supp. 3d 1062, 1075 [“The stairway safety barriers [such as non-complaint handrails and absence of caution striping] did not make [plaintiff’s] ‘use of the facility more difficult than a nondisabled individual’”].)

            While the cited cases above are from federal courts and standing under the Act may differ from standing under the ADA (Reycraft, supra 177 Cal.App.4th at p. 1221), California courts have also recognized a requirement that discrimination must be made based on the disability.  (Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571, 580–581 [inadequate pathways in a department store made the merchandise inaccessible to those using wheelchairs]; Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 515 [patron on crutches could not ascend 18 stairs leading to public restroom and denied permission to use the only bathroom on first floor, which was reserved for employees]; Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 173 [plaintiff in a wheelchair could not access other floors of the restaurant]; Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1186–1187 [quadriplegic could not access automatic teller machine from wheelchair because there were steps in front of it].)

Here, Garcia points to no limitation based on her disability that was targeted by Defendant’s alleged violation.  All individuals using that elevator on that particular day faced an equal risk of falling.  In addition, Garcia acknowledged that on the day of the incident, she drove her vehicle to a park and ride station, took public transit to a hotel nearby the John Hancock Building, walked a few blocks.  (SS 26.)  She did not use any walking devices, though she was “mildly fatigued” when she reached the Building because of her asthma.  (Id. at 28.)  She has taken this route since 2014.  (Id. at 42.)  Furthermore, there is no evidence indicating her mobility was impaired at the time of the incident.  Therefore, she has not shown how the violation of the mis-leveled floors discriminated against her because of her asthma and diabetes.

            Garcia’s opposition misses this point.  She merely argues that the severity of her disability is a factual dispute and there is evidence that she was fatigued at the time of the incident.  But this does not connect the disability to the alleged barrier.  Under Plaintiff’s theory,  anyone with any qualified disability could claim disability discrimination if they suffer an injury related to accessing a building.  A person who is deaf, for example, could assert discrimination under the Act if a multi-floor restaurant did not have an elevator. This is not what the Act intended.  (Urhausen, supra, 155 Cal.App.4th at p. 264 [the Act’s purpose was to ensure equal access for those with disabilities as to those without disabilities].)

            Similarly, Garcia’s attempts to distinguish Urhausen fails.  She asserts that in that case, the Court of Appeal noted that “[i]f plaintiff had attempted to use the disabled access aisle, curb cut, and ramp and had fallen because these were not incompliance with statutory requirements, she would presumably have a cause of action under the [Act].”  But this again fails to recognize that the plaintiff in Urhausen ambulated with a cane and so it was clear that her physical mobility was restricted.

            American Casualty’s opposition also fails to address the standing issue.  It cites to numerous federal cases holding that whether a plaintiff suffers a disability is a question of fact.  (Bates v. Wisconsin (W.D.Wis. 2009) 636 F.Supp.2d 797, 809; Albert v. Smith's Food & Drug Centers, Inc. (10th Cir. 2004) 356 F.3d 1242, 1251.)  But this argument misses the mark.  The issue is not whether Garcia had a disability.  Assuming that she was disabled, Garcia has not shown that she was denied equal access because of that disability.  There must be some causal connection between the alleged violation and the disability.  (See, e.g., Bates, supra, 636 F.Supp.2d at pp. 809-810; Albert, supra, 356 F.3d at p. 1250 [a claim under the ADA requires a plaintiff to show that her employer discriminated against her because of her disability].)[3]  While American Casualty argues that Garcia “had a permanent handicap disabled persons parking permit for her vehicle because of the severity of her asthma,” it makes no further argument as to how her asthma caused her to trip at the elevator and fall.  An individual without asthma or diabetes would be equally likely to have fallen.

            Because Plaintiff has not shown how she was denied access because of her asthma and diabetes, there is no denial of equal access.  Accordingly, the motion for summary adjudication is granted.