Judge: Mark E. Windham, Case: 22STLC00939, Date: 2023-04-27 Tentative Ruling
Case Number: 22STLC00939 Hearing Date: April 27, 2023 Dept: 26
Garcia v. 8 LA Pizzas, LLC, et al.
MOTION
FOR SUMMARY JUDGMENT
(CCP §
437c)
TENTATIVE RULING:
Plaintiff Orlando Garcia’s Motion for Summary Judgment is DENIED.
ANALYSIS:
Plaintiff Orlando Garcia (“Plaintiff”) filed the instant
action for discrimination on the basis of disability in violation of the Unruh
Civil Rights Act against Defendant 8 LA Pizzas, LLC (“Defendant”) on February
14, 2022. Defendant filed an Answer on March 6, 2022.
Plaintiff filed the
instant Motion for Summary Judgment against Defendant on March 6, 2023. Defendant
filed an opposition on April 13, 2023 and Plaintiff filed documents on April
20, 2023.
Discussion
Plaintiff alleges he is a California resident with physical
disabilities and uses a wheelchair for mobility. (Compl., ¶1.) He further
alleges that on December 29, 2020, he visited “Pizza Hut” located at 1219 N. Atlantic
Blvd., Alhambra, California (“the Store”). (Id. at ¶¶3-5.) Defendant
allegedly owns the property on which the Store was located at the time of
Plaintiff’s visit. (Id. at ¶3.) On the day of his visit, Plaintiff
alleges that Defendant failed to a parking space in conformity with the
standards of the Americans with Disabilities Act (“the ADA”). (Id. at ¶¶8-10.)
Specifically, the parking spot and access aisle had slopes in excess of 2.1
percent. (Id. at ¶10.) Due to the lack of accessible parking at the
Premises, which Plaintiff personally encountered, he experienced difficulty and
discomfort, and was denied full and equal access. (Id. at ¶¶11-13.)
Plaintiff originally filed this action in federal court on January 28, 2021;
the federal action declined to exercise jurisdiction over the state claim. (Id.
at ¶14.)
Legal Standard
On a motion for summary adjudication of a particular cause
of action, a moving plaintiff must show that there is no defense by proving
each element of the cause of action entitling the party to judgment on that
cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden
shifts to the defendant to show that a triable issue of one or more material
facts exists as to that cause of action or a defense. (Code Civ. Proc., § 437c,
subd. (p)(1).) In ruling on the Motion, the Court must view the “evidence
[citations] and such inferences [citations], in the light most favorable to the
opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72,
81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843].)
Request for Judicial Notice
Plaintiff’s request for judicial notice of (1) the business
entity search result page for 8 LA Pizzas LLC from the website of the
California Secretary of State; and (2) Statement of Information of 8 LA Pizzas
LLC available on the California Secretary of State’s website, are granted
pursuant to Cal. Evidence Code section 452, subdivision (d).
Defendant’s request for judicial notice of Plaintiff’s
federal complaint filed in Garcia v. 8 LA Pizzas, LLC, case no.
2:21-cv-00774-FLA-E is granted pursuant to Cal. Evidence Code section 452,
subdivision (c).
Evidentiary Objections
Defendant’s evidentiary objections to Plaintiff’s evidence are
ruled on as follows:
·
Exh. 4 and 5 overruled
·
Exh. 6 at ¶¶10-13 sustained
·
Exh. 7 sustained as to issues not related to
excessive slopes
·
Exhs. 8 and 9 sustained
Plaintiff’s evidentiary objections to Defendant’s evidence
are ruled on as follows:
·
Chilleen Decl., ¶3 sustained
Disability Discrimination Under the Unruh Civil Rights
Act
The complaint alleges a single cause of action for violation
of California’s Unruh Civil Rights Act (“the UCRA”) under Civil Code section
51. A violation of the American with Disabilities Act (“ADA”) is a violation of
section 51, subdivision (f) of the UCRA. (Cal. Civ. Code, § 51, subd. (f).)
Statutory penalties of at least $4,000.00 are available for construction-related
accessibility violations of the Unruh Act if a patron is denied full and equal
access to the place of public accommodation on a particular occasion. (Cal.
Civ. Code, §§ 52, subd. (a); 55.56, subd. (a).) A denial of full and equal
access to the place of public accommodation occurs when a patron experiences
difficulty, discomfort, or embarrassment due to the violation. (Cal. Civ. Code,
§ 55.56, subd. (c).) Failure to remove a physical element of the property that
does not meet the ADA Accessibility Guidelines for Buildings and Facilities
(“ADAAG”) amounts to discrimination under the ADA. (42 U.S.C., § 12182, subd.
(b)(2)(A)(iv).)
Accordingly, the elements of a claim for 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; (5) the
violations were personally encountered by Plaintiff 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 section 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, subd. (f).)
In its opposition, Defendant provides additional legal
authority regarding the third element and what is required by a plaintiff to
show violation of a construction-related accessibility standard. Specifically,
Defendant argues that the UCRA expressly omits the ADA requirement of physical
modification of existing facilities. Instead, the applicable
construction-related accessibility standard in any case depends on the
construction and alteration history of the property at issue. The UCRA incorporates
violations of the ADA into its language, but qualifies that incorporation with
the following: “Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or modification of
any sort whatsoever to any new or existing establishment, facility, building,
improvement, or any other structure . . . .” (Civ. Code, § 51, subd. (d).)
Therefore, a defendant is not obligated under the UCRA to remove a “readily
achievable” barrier, which is required under the ADA. Rather, a plaintiff must
demonstrate the construction and alteration history of the property at issue to
determine the corresponding construction-related accessibility standard at the
time of construction.
Defendant cites to Arnold v. United Artists Theatre
Circuit, Inc. (N.D. Cal. 1994) 158 F.R.D. 439, for the rule that “the
California Assembly expressly declined to adopt and incorporate any ADA
standards requiring the physical modification of existing facilities.” (Arnold
v. United Artists Theatre Circuit, Inc. (N.D. Cal. 1994) 158 F.R.D. 439,
444 n. 1.) However, this is not a holding of Arnold. Rather, it is a
statement of the law of the case and has no binding or persuasive authority as
a rule of law. (Ibid.)
Defendant also cites to Dowling
v. MacMarin (9th Cir. 1998) 156 F.3d 1236, which is an unpublished
circuit court case and only citable as persuasive, not binding, authority in
California courts. (Landmark Screens, LLC v. Morgan, Lewis & Bockius,
LLP (2010) 183 Cal.App.4th 238, 251 n. 6 [citing Cal. Rules of Court rule
8.1115].) Dowling does persuasively support Defendant’s position because
the Circuit Court ruled that “[t]he removal of an architectural barrier is an
alteration or modification, and therefore cannot be required under the Unruh
Act.” (Dowling v. MacMarin, Inc. (9th Cir. 1998) 156 F.3d 1236, *2.)
Other cases support Defendant’s contention that a violation
of the applicable construction-related accessibility standard can only be shown
through the evidence of the property’s construction and alteration history.
(See Blackwell v. City and County of San Francisco (9th Cir. 2013) 506
Fed.Appx. 585, 587; Association For Disabled Americans v. City of Orlando
(M.D. Fla. 2001) 153 F.Supp.2d 1310, 1317-1318; Disabled Americans for Equal
Access, Inc. v. Compra Hosp. Pavia, Inc. (D.P.R. 2004) 2004 WL 5568603, at
*11.) It is not clear if there is a reply in support of the motion. Plaintiff
filed documents entitled “Opposition to Defendants Motion for Summary Judgment”
on April 20, 2023. In the opposition, Plaintiff cites to Moeller v. Taco
Bell Corp. (N.D. Cal. 2011) 816 F.Supp.2d 831, for the proposition that the
third element of an UCRA claim is violation of the applicable accessibility
standards. (Opp., filed 04/20/23, p. 2:17-19 n. 7.) Moeller also
supports Defendant’s position that a plaintiff must set forth the applicable
standards as part of their case and goes on to list the categories of
accessibility standards under the ADA:
There are three categories of
accessibility requirements under Title III of the ADA—the “new construction”
provisions, which apply to public accommodations constructed after January 26,
1993; the “alteration” provisions, which apply to post-January 26, 1992
alterations to buildings that existed as of that date; and the “readily
achievable” provisions, which apply to unaltered portions of buildings
constructed before January 26, 1993.
(Moeller v. Taco Bell Corp. (N.D. Cal. 2011) 816
F.Supp.2d 831, 848.) Therefore, part of Plaintiff burden to prove a violation
of one or more construction-related accessibility standards is through evidence
of the applicable standards at the time of the property’s construction.
Plaintiff’s Initial Burden of Proof
In support of the Motion, Plaintiff presents the following
evidence. Plaintiff is unable to walk and uses a wheelchair for mobility.
(Motion, Separate Statement, Fact No. 1; Garcia Decl., ¶2.) The Store is
located at 1219 N. Atlantic Blvd., Alhambra, California. (Motion, Separate
Statement, Fact No. 2; Garcia Decl., ¶2; Louis Decl., ¶2.) Defendant owns the
property on which the Store is located and owned it in December 2020. (Motion,
Separate Statement, Fact No. 3; Exh. 10.)
On December 29, 2020, Plaintiff went to the Store to buy
pizza and assess it for compliance. (Motion, Separate Statement, Fact No. 4;
Garcia Decl., ¶3 and Exhs. 1, 3.) Plaintiff observed one parking space marked
for use by persons with disabilities. (Motion, Separate Statement, Fact No. 5;
Garcia, ¶4 and Exhs. 1, 3.) However, Plaintiff also observed that there were
slopes resulting in the access aisle not being level with the parking space. (Motion,
Separate Statement, Fact No. 6; ¶5 and Exh. 3.) Plaintiff did not feel
comfortable trying to use the parking space and chose not to use it. (Motion,
Separate Statement, Fact No. 7; Garcia Decl., ¶6.) Plaintiff’s investigator
visited the property on January 25, 2021 and measured the parking space slopes
at 5.6 percent gradient and the cross-slopes at 5.1 percent gradient. (Motion,
Separate Statement, Fact Nos. 13-15; Louis Decl., ¶¶2-5 and Exhs. 4-5.) The
access aisle slopes measured 5.5 percent gradient. (Motion, Separate Statement,
Fact No. 16; Louis Decl., ¶6 and Exh. 5.) On January 27, 2021, Plaintiff’s CASp
expert, Soyoung Ward, found that the surface slopes of the accessible parking
space and access aisle exceed 1:48 (2.083%). (Motion, Separate Statement, Fact
No. 18; Ward Decl., ¶8 and Exh. 7.) Ward also found the parking identification
sign was less than 60 inches high and that an accessible route from the parking
space to the Store was not provided. (Motion, Separate Statement, Fact Nos. 20,
22; ¶¶10, 12 and Exhs. 6-7.) The cost to make corrections to these
non-compliant elements would be approximately $4,110.00. (Motion, Separate
Statement, Fact Nos. 24-25; Slater Decl., ¶¶4-5 and Exhs. 8-9.)
Plaintiff contends that under the 2010 ADA Standards,
parking access aisles must be at the same level as the adjacent parking space.
(36 C.F.R., Pt. 1191, Appendix D (Building Blocks: 502.4.) The standards
provide that “changes in level are not permitted” but provide an exception for
“slopes not steeper than 1:48.” (36 C.F.R., Pt. 1191, Appendix D (Building
Blocks: 502.4.) A 1:48 gradient slope is 2.083 percent. (Motion, Ward Decl.,
¶8.) Plaintiff has demonstrated that the slope of the parking space and access
aisle was in excess of 2.083 percent, as discussed above. However, the Motion
does not explain why the 2010 ADA Standards are applicable to the subject
property. No evidence is provided regarding when the property was constructed
or whether it was altered. Without such evidence, it cannot be determined that
the 2010 ADA Standards apply to the subject property and that any violation of
those standards is relevant to Plaintiff’s action.
Therefore, the Court finds that Plaintiff has not carried
their initial burden of proof to demonstrate no triable issues of material fact
exist regarding Defendants’ violation of section 51 of the Unruh Act and
liability for statutory damages.
Conclusion
Plaintiff Orlando Garcia’s Motion for Summary Judgment is DENIED.
Court clerk to give notice.