Judge: Christian R. Gullon, Case: 23PSCV00187, Date: 2023-11-17 Tentative Ruling
Case Number: 23PSCV00187 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 January 17, 2023, Plaintiff filed suit for violation of Unruh Civil Rights Act (UCRA).
On July 11, 2023, default was entered against Defendant.
On October 19, 2023, the instant application was filed.
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 he encountered were as follows: “No
accessible parking (the minimum number of accessible parking spaces required by
ADAAG/ADASAD Section 208.2 is not provided); b. No accessible parking spaces or
van accessible parking spaces in the parking lot as required by Section 502;
and, c. No ADAAG/ADASAD compliant accessible or van accessible parking signage
in violation of Section 502.6.” (Rutherford Decl., ¶6.) Were there
no spaces? Or not enough spaces? The evidence appears to support the latter as
there is a sign that provides for accessible parking. (Rutherford Decl., p. 5
of 9 of PDF.)
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, according to another attached photo, there are
numerous parking spaces available, whether that be accessible parking or no. Thus,
it is uncertain how on this particular occasion it was difficult
for Plaintiff to make a purchase. (Rutherford Decl., p. 8 of 9 of PDF.)
Therefore, absent evidence (including a more detailed
declaration) as to what specific architectural defect existed on the particular
occasion when Plaintiff went to make a purchase and how that specific defect
made it difficult for Plaintiff to make his purchase, the application
fails for insufficient support of damages. (Insufficient evidence would result
in a denial without prejudice.)
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 ¶34.) 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.