Judge: Deborah C. Servino, Case: 30-2021-01204069, Date: 2022-10-14 Tentative Ruling
Plaintiff Poupak Barekat’s motion for summary judgment on her First Amended Complaint (“FAC”) against Defendants Giacomo Zanchi and Yolanda Zanchi, each individually as and as trustees of The Giacomo J. and Yolanda Zanchi Trust UDT Dated July 3, 1991, as amended, is denied.
Notice
The court deems Defendants’ objection to the defective notice as waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-697.)
Evidentiary Objections
Defendants’ evidentiary objections are overruled.
Summary Judgment Standard
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)
Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (LLP Morg. v. Bizar (2005) 126 Cal.App.4th 773, 776.)
If plaintiff meets this burden, the burden then shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
Merits
Plaintiff’s sole claim is for violation of the Unruh Act (Civ. Code, § 51, et seq.) (FAC, at pp. 7-8.) Plaintiff seeks declaratory judgment, injunctive relief, damages, additional award of $4,000 as deterrence damages for each violation, attorney’s fees, expenses, and costs. (FAC, at pp. 8-9.) Civil Code section 51 (the Unruh Civil Rights Act) provides, in relevant part, that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).) Under subdivision (f), a “violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336)[footnote] shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).)
Here, Plaintiff did not meet her prima facie burden. For the motion, she only addresses the theory of violation of the ADA for her claim. The evidence that she produced did not show that it is an undisputed fact that Defendants have previously made significant alterations to the parking lot to trigger compliance with the 2010 ADA regulations. She simply referred to Defendants’ response to request for production of documents (set one) “Proposals, notes, and invoices produced . . .”, which totals 42 pages. (See Plaintiff’s Separate Statement no. 31.) Some of those documents are illegible. (See App. of Exhs., Exh. H.)
Even assuming Plaintiff has met her prima facie burden, there are triable issues of material fact as to whether Plaintiff had a bona fide intent to get a tattoo; whether she is entitled to injunctive relief (e.g., there is a “real and immediate threat of repeated injury); and whether there was a violation of the ADA, based upon construction-related accessibility standards. (App. of Exhs. Exh. H; Pl. Depo., at pp. 90-92; see 28 C.F.R. §§ 36.402(b), 36.406(a)(3), 36.406(a)(5)(ii); 42 U.S.C. § 12182(b)(2); 42 U.S.C. § 12183(a)(2).) While Plaintiff has stated that she “would like to go back to the [tattoo parlor],” once it is ADA-compliant, Plaintiff has also made statements that undermine her intent to return to the business to get a tattoo. Plaintiff testified at her deposition that she does not have any tattoos, but she has been thinking about getting one for over thirty years, and “never could find [a design] that [she] could commit to” until now. However, she also testified at her deposition on April 1, 2022, that since she visited on October 10, 2020, she has not gotten the tattoo because she consulted with a physician about whether it will make her vitiligo skin condition worse, and the physician “actually is about to give me the green light.” (Pl. Depo., at pp. 90:11-92:3.) In her supporting declaration filed on July 29, 2022, Plaintiff omits any discussion about whether she was cleared to get the tattoo and if she would get the tattoo even if she had not been cleared.
In her reply, Plaintiff claims Defendants are manufacturing disputes of fact where none exist. But on summary judgment, the court must consider all of the evidence, and all of the inferences reasonably drawn therefrom, and must view them in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) Accordingly, the motion for summary judgment is denied.
Defendants shall give notice of the ruling.