Judge: Christian R. Gullon, Case: 22PSCV00508, Date: 2023-11-17 Tentative Ruling
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Case Number: 22PSCV00508 Hearing Date: November 17, 2023 Dept: O
Tentative Ruling
Plaintiff’s Application for Default Judgment is DENIED
with prejudice.
Background
This is a civil rights/disability case.
On May 27, 2022, Plaintiff filed suit for violation of Unruh Civil Rights Act (UCRA).
On September 6, 2022, default was entered against Defendant.
On October 12, 2023, Plaintiff filed a ‘Notice of Withdrawal
of Notice of Settlement.’
On October 13, 2023, Plaintiff filed the instant
application.
Discussion
Overview of UCRA
California’s UCRA provides: ‘All persons within the
jurisdiction of this state are free and equal and no matter what their….
disability… are entitled to the full and equal¿accommodations, advantages,
facilities, privileges, or services in all business establishments of every
kind whatsoever. (Civ. Code, § 51(b).) A violation of any
individual right under the Federal Americans with Disabilities Act (“ADA”) is
also a violation of California’s Unruh Act. (Civ. Code §¿51(f).)
Under the ADA, “[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).) Under the ADA, a place of public
accommodation expressly includes grocery stores or other sales establishments.
(42 U.S.C. § 12181(7)(E).)
“A plaintiff can recover under the Unruh Civil Rights Act on¿two
alternate theories: (1) a violation of the ADA (Civ. Code, § 51, subd.
(f)); or (2) denial of access to a business establishment based on intentional
discrimination. [Citations.]” (Martinez v. San Diego County Credit
Union¿(2020) 50¿Cal.App.5th 1048, 1059.)¿(Emphasis added.) Intentional
discrimination, however, need not be proved to obtain damages under the Unruh
Civil Rights Act when the plaintiff establishes a violation of the ADA. (Munson
v. Del Taco, Inc., supra, 46 Cal.4th at p. 665.)
Under the ADA, discrimination includes “a failure to remove
architectural barriers…, in existing facilities … where such removal is readily
achievable.” (42 U.S.C. § 12182(b)(2)(A)(ii), (iv).)
Statutory penalties are available for construction-related
accessibility violations of the Unruh Act only if a patron
is denied full and equal access to the place of public accommodation on a
particular occasion. (Civ. Code, § 55.56(a).) (Emphasis added.)
Under the statute, a plaintiff is denied full and equal access only if
the plaintiff personally encounters the violation on a particular occasion or
she or he is deterred from accessing a place of public accommodation on a
particular occasion. (Civ. Code, § 55.56(b).) “A violation
personally encountered by a plaintiff may be sufficient to cause a denial of
full and equal access if the plaintiff experienced difficulty, discomfort, or
embarrassment because of the violation.” (Civ. Code, §¿55.56(c).)
Under this theory, a plaintiff cannot recover statutory damages absent evidence
that the violation caused him difficulty, discomfort, or embarrassment. (Mundy
v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1, 6.)
In summary, the elements of a claim for
construction-related violation of the Unruh Act are that: (1) Plaintiff is a
qualified individual with a disability; (2) Defendant owned, leased, or
operated a place of public accommodation; (3) the place of public accommodation
was in violation of one or more construction-related accessibility standards;
(4) the violations denied Plaintiff full and equal access to the place of
public accommodation; and (5) the violations were personally encountered by
Plaintiff or was deterred from accessing a place of public accommodation on a
particular occasion; (6) Plaintiff experienced difficulty, discomfort or
embarrassment due to the violations; and (7) the discrimination was intentional
unless premised exclusively upon a violation of the ADA. (Cal. Civ. Code §
55.56; Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1; Surrey
v. TrueBeginnings (2009) 168 Cal.App.4th 414.) A defendant in
violation of Civil Code § 51 “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 jury, up to a maximum of three times the amount of actual
damage but in no case less than four thousand dollars ($4,000) . . . .” (Civ.
Code, § 51(f).)
1.
Defect No. 1: Prelitigation Requirements
As of 2009, California law provides for mandatory
alternative dispute resolution for civil “construction-related accessibility
claims.” Specifically, if a civil action alleging physical inaccessibility from
non-compliance with technical standards is brought against a public
accommodation pursuant to the Unruh Act or the Disabled Persons Act, the
attorney filing the complaint must notify the defendant of possible
eligibility for a stay and an early evaluation conference upon service of the
summons. (Civ. Code § 55.54(a), emphasis added.)
Here, there is no such filing indicating that Plaintiff has
complied with this requirement.
Therefore, the application would be denied with prejudice
for that reason.
2.
Defect No. 2: Evidence
As set forth above, a plaintiff cannot recover statutory
damages absent evidence that the violation caused him difficulty, discomfort,
or embarrassment.
Here, for one, the evidence is unclear. Plaintiff attests
that the barriers caused her “difficulty when [she] tried to access this
business and make a purchase. Specifically, [she] was forced to travel in [her]
wheelchair without a designated right-of-way and to navigate a hazardous curb
ramp.” (Cabrera Decl., p. 2.) But the attached photos (Ex. 2), do not reveal
that the curb ramp was hazardous. It is also unclear what Plaintiff means by a
lack of “right of way.”
Moreover, to demonstrate a plaintiff was deterred from accessing a
place of public accommodation, she or he must demonstrate that the “violation
or violations would have actually denied the plaintiff full and equal access if
the plaintiff had accessed the place of public accommodation on that
particular occasion.” (Civ. Code, § 55.56(d), emphasis added and
underline added.)
Here,
however, she conclusively states that the property “deprived [her] of full and
equal enjoyment of the Business.” (Cabrera Decl., p. 2.) Also, Plaintiff was
able to make her purchase (receipt attached) so it is unclear how she was
deterred from access to the business.
Additionally, Plaintiff alleges the following violations: no
accessible route leading to the entrance of the Business from the public
right-of-way (Section 206.2.1); and, b. a built-up curb ramp that projects into
the vehicular traffic lane (Section 406.5). (Complaint p. 3). However, there is
no evidence that those in fact are the ADA violations at the business.
3.
Defect No. 3: Lack of Specificity
The threshold requirement for a default judgment is that the
complaint be well-pled. (See Kim
v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267.) As a statutory cause of action, the
complaint should be pleaded with particularity.
(Vedder v. City of Imperial (1974) 36 Cal.App.3d 654, 659).)
Here, however,
Plaintiff conclusively argues that Defendant’s “actions constitute
intentional discrimination against Plaintiff on the basis of a disability, in
violation of the UCRA, Civil Code § 51 et seq., because Defendants have been
previously put on actual or constructive notice that the Business is
inaccessible to Plaintiff. Despite this
knowledge, Defendants maintain its premises in an inaccessible form, and
Defendants have failed to take actions to correct these barriers.” (Complaint ¶33.) But when was Defendant put on notice? What barrier or barriers was
Defendant put on notice of?
Therefore,
absent specific and particular facts that establish an UCRA violation, the
complaint fails to meet basic pleading standards, rendering the default
judgment denied with prejudice.
Conclusion
Based on the foregoing, the application for entry of default
judgment is denied with prejudice.