Judge Mark E. Windham, Case Number: 21STLC07929, Date: 2023-08-29 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC07929, Date: 2023-08-29 Tentative Ruling

Case Number: 21STLC07929 Hearing Date: August 29, 2023 Dept: 26

Carrillo v. Downey Landing SPE, LLC, et al.

MOTION FOR SANCTIONS

(CCP § 128.7)

TENTATIVE RULING:

Defendants Downey Landing SPE, LLC and Harbor Freight Tools USA, Inc.’s Motion for Sanctions is DENIED.

ANALYSIS:

On November 4, 2021, Plaintiff Edgar Carrillo (“Plaintiff”) filed the instant action against Defendants Downey Landing SPE, LLC (“Defendant Downey Landing”) and Harbor Freight Tools USA, Inc. (“Defendant Harbor Freight”). Plaintiff filed a first amended complaint on March 29, 2023, alleging a single cause of action for violation of the Unruh Civil Rights Act (“the UCRA”). Defendants filed an answer on May 25, 2023 and the instant Motion on July 14, 2023. Plaintiff filed an opposition on August 16, 2023, and Defendants replied on August 22, 2023.

Evidentiary Objections

Defendants’ evidentiary objections to Plaintiff’s declaration are overuled.

Defendants’ evidentiary objections to the declaration of Randall Marquis is overruled.

Discussion

Defendants bring the Motion for Sanctions pursuant to Code of Civil Procedure section 128.7, which

[R]equires that at least one attorney, or the party if he/she is not represented by an attorney, sign all pleadings, petitions, notice of motions and other similar papers. [Citation.] The signature indicates that the attorney, or party, certifies that: the paper is not being presented for an improper purpose; the legal contentions are warranted by law or nonfrivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence. [Citation.] If the court determines, after notice or a reasonable opportunity to respond, that the attorney or party improperly certified the document, it may impose a proper sanction.

(Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 130.) In addition, section 128.7 contains a “safe harbor” provision specifying the motion for sanctions may not be filed “unless, within 21 days after service of the motion, ... the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1).) Defendants complied with the safe harbor provision because the Motion for Sanctions was served on Plaintiff on June 21, 2023, but not filed until July 14, 2023. (Motion, Ellis Decl., Exh. N.)

Regarding the merits, Defendants move for sanctions based on Plaintiff’s filing of the first amended complaint, which alleges the following facts. Plaintiff is a California resident with physical disabilities. (FAC, ¶1.) In May 2020, Defendant Downey Landing owned the real property located at 12056 Lakewood Blvd., Downey, California (“the Property”). (Id. at ¶3.) Defendant Harbor Freight owed the Harbor Freight Tools store (‘the Store”) located on the Property. (Id. at ¶4.) Plaintiff visited the Store on May 30, 2020. (Id. at ¶6.) On that date, Defendants failed to provide wheelchair-accessible point-of-sale machines in conformity with the ADA Standards. (Id. at ¶8.) Plaintiff encountered the problem that the point-of-sale machines were too high, and the clerk had to swipe his card to complete the transaction. (Id. at ¶10.) Other customers who were not in wheelchairs, however, were able to complete their transactions without assistance. (Ibid.) Defendants, therefore, denied Plaintiff full and equal access to their facilities. (Id. at ¶¶12-13.) This denial of access is an act of discrimination under the ADA, and therefore, under the UCRA. (Id. at ¶¶15-24.)

Defendants argue that they prevailed on summary judgment in the federal action but Plaintiff is now bringing this action on the same facts. Summary judgment in the federal action, however, was granted because Defendants brought the Store into compliance with ADA Standards. (Motion, Ellis Decl., Exh. H.) Specifically, Plaintiff’s federal claim only sought injunctive relief (making the point-of-sale machines ADA-complaint) and was deemed moot because the point-of-sale machines were found to be ADA-compliant at the time of the ruling. (Id. at Exh. H, pp. 2:2-3, 4:14-5:8.) The federal court’s summary judgment ruling did not address whether the point-of-sale machines at the Store on the date of Plaintiff’s visit in May 2020 were ADA-compliant, which is the basis of this action. Nor did Plaintiff’s own expert, Souyoung Ward, provide a report regarding the point-of-sale machines in May 2020. Ward’s report was issued in May 2021 and was provided simply as an accompaniment to Plaintiff’s counsel expert witness designation. (Id. at Exh. L at ¶¶2-6; Ward resume and report.) Contrary to Defendants’ assertions, Plaintiff’s own expert did not determine that this action has no merit.

Defendants also argue that the first amended complaint does not cite any ADA Standard regarding the height of the point-of-sale machines and during the federal action, Plaintiff relied on standards with respect to automated teller machines. (Motion, Ellis Decl., Exhs. C and D at p. 4:9-23.) In opposition, Plaintiff contends that the relevant ADA Standard was identified by Defendants’ own expert, Certified Access Specialist Craig Lobnow (“Lobnow”), as “2010 ADAS Section: 308.3.2.” (Citing Motion, Ellis Decl., Exh. F, p. 6.) The Motion does not address whether the relevant ADA Standard identified by their own expert supports the allegations in the first amended complaint. Plaintiff’s opposition provides the declaration of investigator Randall Marquis, who measured the height of the sales counter, the depth to the point-of-sale machines, and the distance to the middle of the point-of-sale machines’ screen. (Opp., Marquis Decl., ¶¶2-5 and Exhs. 1-3.) The photos taken by Marquis on June 4, 2020 show that boxes were placed in front of the counter on which the point-of-sale machines were placed. (Id. at Exhs. 1-3.) Marquis estimated but did not measure, that the depth to the point-of-sale machines over the boxes was 30 inches. (Id. at ¶5.)

In reply, Defendants attempt to overcome Marquis’ declaration by making much of the 30-inch estimate because it is not supported by an actual measurement. However, the Court is not persuaded that the lack of a specific measurement creates a fatal flaw in Plaintiff’s claim. Whether Marquis’ estimate is sufficient, in combination with other evidence to prove Plaintiff’s claim, remains to be seen. Defendants attempt to overcome Plaintiff’s declaration regarding the boxes in front of the checkout stand by pointing to earlier deposition testimony in the federal action in which Plaintiff could not recall the boxes. (See Opp., Carrillo Decl., ¶¶5-9 and Exh. 3-4.) Plaintiff’s testimony, however, is equivocal. He initially testified that he could not recall the boxes but after viewing photographs, had his recollection refreshed. (Reply, Ellis Decl., Exh. O, pp. 49:4-50:21.) Finally, Defendants again point to the declaration of Plaintiff’s expert, Ward, regarding measurements taken on May 12, 2021, to argue that the height of the point-of-sale machines was ADA-compliant. As discussed above, Ward’s declaration regarding the Store’s ADA compliance in 2021 has no bearing on Plaintiff’s claim in this action. Ward also opined, after looking at the photos taken by Marquis of the boxes in front of the sales counter on June 4, 2020, that the reach depth to the point-of-sales machines might not have been compliant at that time. (Opp., Potter Decl., Ward Report, p. 12.)

Based on the foregoing, Defendants have not shown that Plaintiff lacks any evidence to support his claim and, therefore, filed the first amended complaint for an improper purpose, such as harassment. The filing of the first amended complaint, therefore, does not support sanctions under Code of Civil Procedure section 128.7 against Plaintiff.

Conclusion

Defendants Downey Landing SPE, LLC and Harbor Freight Tools USA, Inc.’s Motion for Sanctions is DENIED.

Plaintiff to give notice.