Judge Gary Y. Tanaka, Case 21TRCV00705 2022-08-10 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, August 10, 2022

Department B Calendar No. 8

John Irizawa’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication is denied.

Plaintiff filed the Complaint on September 30, 2021. Plaintiff alleges the following facts. Plaintiff is a person with physical disabilities. Plaintiff sought to visit the restaurant, Taco El Parque, located on the property of Defendant but was unable to do so because of barriers and restrictions that limited access. Plaintiff alleges the following causes of action: (1) Violation of the ADA (42 U.S.C. § 12101, et seq.); (2) Violation of the Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53).

Plaintiff’s request for judicial notice is granted pursuant to Evidence Code § 452(d).

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Code Civ. Proc., § 437c(f)(1).

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Cal. Rules of Court, Rule 3.1350(b).

Plaintiff moves for summary judgment, or, in the alternative, for summary adjudication. “Plaintiff seeks an order from the Court requiring Defendant to comply with the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“UCRA”), and to remediate all existing accessibility violations, including to provide and maintain accessible routes of travel, signage, parking, business entrance, and restroom, at the property located 1124 W. Redondo Beach Blvd., Gardena, CA 90247 (the “Property”). Plaintiff also seeks a judgment in favor of Plaintiff and against Defendant in the amount of $12,000 for statutory damages under the UCRA, along with attorney’s fees and costs herein.” (Notice of Motion, page 2, lines 10-17.)

First, the Court notes that the motion for summary adjudication is defective as the notice of motion fails to identify the specific cause of action, affirmative defense, claims for damages, or issues of duty that are sought to be adjudicated. In addition, Plaintiff failed to repeat verbatim the specific cause of action, affirmative defense, claims for damages, or issues of duty in the separate statement of facts. Therefore, the Court will proceed simply as a motion for summary judgment.

Plaintiff has met its initial burden to show that there is no defense to the causes of action. However, Defendant has met its burden to show that a triable issue of material fact exists as to each cause of action. Code Civ. Proc., § 437c(p)(1).

42 U.S.C. § 12182(a) states: “No 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.” “In order to make a prima facie case under Title III of the ADA, a plaintiff must prove that (1) she has a disability, (2) defendants' facility is a place of public accommodation, (3) and she was denied full and equal treatment because of her disability. To succeed on a ADA claim of discrimination on account of an architectural barrier, the plaintiff must also prove that (1) the existing facility at the defendants' place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable.” Hubbard v. Twin Oaks Health and Rehabilitation Center (E.D. Cal. 2004) 408 F.Supp.2d 923, 929.

“[S]ection 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.... [A] plaintiff cannot recover damages under section 54.3 unless the violation actually denied him or her access to some public facility. [¶] Plaintiff's attempt to equate a denial of equal access with the presence of a violation of federal or state regulations would nullify the standing requirement of section 54.3, since any disabled person could sue for statutory damages whenever he or she encountered noncompliant facilities, regardless of whether that lack of compliance actually impaired the plaintiff's access to those facilities. Plaintiff's argument would thereby eliminate any distinction between a cause of action for equitable relief under section 55 and a cause of action for damages under section 54.3.... [¶] Based on the foregoing, the California cases cited above, when read together, indicate standing under section 54.3 of the DPA is established where a disabled plaintiff can show he or she actually presented himself or herself to a business or public place with the intent of purchasing its products or utilizing its services in the manner in which those products and/or services are typically offered to the public and was actually denied equal access on a particular occasion.” Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223–1224 (internal citations and quotations omitted).

“The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title.” 42 U.S.C.A. § 12188(a)(1). “Damages are not recoverable under Title III of the ADA—only injunctive relief is available for violations of Title III.” Wander v. Kaus (9th Cir. 2002) 304 F.3d 856, 858

Plaintiff has submitted evidence to meet each of the elements of a cause of action for ADA violation. (Plaintiff’s Separate Statement of Facts and Supporting Evidence (“PSSF”), 1-5, 9-63). However, Defendant has submitted competent evidence to show the existence of a triable issue of material fact as to the elements of Plaintiff’s cause of action.

Defendant submits evidence to dispute Plaintiff’s allegation that he has a mobility related disability that is affected by the conditions of the property. (Defendant’s Separate Statement of Additional Material Facts and Supporting Evidence (“DSUF”), 1-5). Defendant points to an absence of evidence indicating that the purported disability affected Plaintiff’s ability to maneuver around the property. “[S]ummary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.” Code Civ. Proc., § 437c(e).

Defendant submits evidence to dispute Plaintiff’s contention that he visited the subject property on the particular dates which he contends that he visited the property. (DSUF, 6-14). Defendant points to the lack of corroborating evidence to support these visits other than Plaintiff’s self-serving statements that he visited the property. “[S]ummary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.” Code Civ. Proc., § 437c(e).

Finally, Defendant submits evidence to dispute Plaintiff’s contentions that the property had barriers that are prohibited by the ADA. Defendant submitted expert evidence in the form of the declaration and report of Craig Lobnow, a California state Certified Access Specialist. Defendant’s expert evidence indicates that the conditions of the accessible parking spaces and access aisle complies with State and Federal accessibility standards. (DSUF, 19-26.) Defendant’s expert evidence indicates that the parking signs are also fully compliant with mandated standards. (Id., at 27-31.) Likewise, Defendant’s expert’s reports and findings concluded that the location of the parking spaces were also fully compliant. (Id., at 32-34.) Defendant’s expert concludes that contrary to Plaintiff’s evidence there was no need for directional signage at the location. (Id., at 35-37.) Defendant refutes Plaintiff’s evidence concerning barriers in the bathroom by indicating that the restaurant had no public restrooms. (Id., at 38.) Defendant’s expert indicates that the alleged defects with the handrails, door pressure, and floor mats did not exist. (Id., at 39-48.) Based on the foregoing evidence, Defendant has shown the existence of a triable issue of material fact as to Plaintiff’s first cause of action for ADA Violation.

Second Cause of Action for Violation of the Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53)

To prevail on a claim under the Unruh Act, a plaintiff must prove that the: (1) Defendant's business had barriers that violated construction-related accessibility standards; and either (2) Plaintiff personally encountered the violation on a particular occasion or Plaintiff was deterred from accessing Defendant's business on a particular occasion. CACI, Section 3070.

“(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.

(b) A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.

(c) 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.

(d) A plaintiff demonstrates that he or she was deterred from accessing a place of public accommodation on a particular occasion only if both of the following apply:

(1) The plaintiff had actual knowledge of a violation or violations that prevented or reasonably dissuaded the plaintiff from accessing a place of public accommodation that the plaintiff intended to use on a particular occasion.

(2) 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.”

Here, based on the same facts and evidence noted above in the Court’s analysis of the first cause of action, Defendant has submitted competent evidence to show the existence of a triable issue of material fact as to whether Defendant’s business had barriers that violated construction related disability standards, whether Plaintiff personally encountered the alleged violations, or whether Plaintiff was deterred from accessing Defendant’s business on a particular occasion.

Therefore, Plaintiff’s motion for summary judgment, or, alternatively, summary adjudication is denied.