Judge Mark E. Windham, Case Number: 2STLC00939, Date: 2023-07-13 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Orlando Garcia v. 8 LA Pizzas, LLC

MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

(CCP § 437c)

DENY Motion for SUMMARY JUDGMENT. DENY Motion for Summary Adjudication.

ANALYSIS:

Plaintiff Orlando Garcia (“Plaintiff”) filed the instant action for discrimination on the basis of disability in violation of the UCRA against Defendant 8 LA Pizzas, LLC (“Defendant”) on February 14, 2022.

Defendant filed the instant Motion for Summary Judgment, or, in the alternative, Summary Adjudication against Plaintiff on April 26, 2023. Plaintiff filed an opposition on June 28, 2023. No reply was filed.

Plaintiff alleges he is a California resident with physical disabilities and uses a wheelchair for mobility. (Compl., ¶1.) He further alleges 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.) Plaintiff alleges Defendant failed to provide a parking space in conformity with the standards of 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 on the property, Plaintiff 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.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each claim as framed by the complaint, the moving party must satisfy the initial burden of proof by presenting facts proving the essential elements of a cause of action, negating the essential elements of a cause of action, or establishing a defense. (Code Civ. Proc., § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant’s Request for Judicial Notice as to Exhibit A is GRANTED pursuant to California Evidence Code section 452(c).

The complaint alleges a single cause of action for violation of the UCRA under Civil Code section 51. A violation of the ADA is a violation of section 51(f) of the UCRA. (Cal. Civ. Code, § 51(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(a); 55.56(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(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 or deterred Plaintiff 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 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).)

Defendant contends 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 building code in effect at the time of construction or alteration 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 persuasively support Defendant’s position as 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 applicable standards at the time of the property’s construction. (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.)

Defendant contends that Plaintiff cannot establish the third element under the UCRA because he does not have any evidence of the construction/alteration history of the parking lot and cannot prove any violation under the UCRA.

The Court finds that Defendant has failed to meet its burden by negating this element, and failed to shift the burden to Plaintiff to establish a triable issue of material fact. Defendant simply contends Plaintiff does not have evidence of the construction/alteration history, but absence of evidence is insufficient to obtain summary judgment. (Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 173–174 “[S]imply pointing to” the absence of evidence supporting [a party’s] position is not in itself enough to obtain summary judgment. . . . There must be some ‘affirmative showing’ by the moving defendant that plaintiff could not obtain such evidence, before summary judgment would be proper. [A] defendant . . . should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain [evidence to establish] a prima facie case.” (Citations omitted.)) The Court notes Defendant’s reliance on Blackwell to contend the Court can grant summary judgment is misguided because in Blackwell the defendant had shifted the burden to the plaintiff to establish a genuine dispute of material fact, and the Blackwell court found the evidence presented was inadequate to establish a genuine dispute of material fact. In contrast, Defendant has not met its burden to shift the burden to Plaintiff by simply contending the absence of evidence.

Thus, Defendant’s Motion for Summary Adjudication as to the construction-related accessibility standard element is DENIED.

Defendant contends Plaintiff cannot establish this element because he was not denied access. Defendant points the Court to Plaintiff’s declaration in support for his previously denied motion for summary judgment, wherein he states he did not attempt to use the parking space because he immediately noticed there were slopes that cause the access aisle not to be level with the parking space, and the idea of using the parking space and access aisle gave him discomfort. (Pl. MSJ Exh. 1, ¶¶ 6-7.) Defendant contends Plaintiff cannot show he encountered any difficulty, as he did not get out of his van, and he cannot rely on the appearance of excessive slopes. Defendant also points the Court to inconsistencies in Plaintiff’s declaration and testimony, with regards to the ramp not opening, and with regards to who drove to the Store. (Mot. p. 19.)

The Court finds that Defendant has failed to meet its burden by negating this element, and shifting the burden to Plaintiff to establish a triable issue of material fact. As a preliminary matter, Defendant’s contention that Plaintiff cannot establish this cause of action because he did not encounter any difficulty because he did not get out of his van is misguided. Civil Code section 55.56(b) states “[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.” (Emphasis added.) Plaintiff does not necessarily need to encounter the violation, but it is sufficient that the violation deter him from accessing the Store. The evidence submitted by Defendant here establishes that Plaintiff was deterred from accessing the Store due to the excessive slopes.

Defendant also contends that Plaintiff cannot proven a denial of access because his son could have picked up the pizza or Plaintiff could have called the Store to bring out the pizza. Defendant cites to numerous cases for the proposition that plaintiff must affirmatively ask for assistance and then be denied equal access to have an actionable claim. (Skaff v. Meredien North America Beverly Hills, LLC (9th Cir. 2007) 506 F.3d 832, 840 [“The mere delay during correction of the problem with the shower is too trifling of an injury to support constitutional standing.”]; Tanner v. Wal-Mart Stores, Inc. (D.N.H., Feb. 8, 2000, No. 99-44-JD) 2000 WL 620425, at *6 [“Regular use of an accessible route for storage of supplies would violate Title III, but an isolated instance of placement of an object in an accessible route is not a violation if the object is promptly removed.”]; Hardy v. California (N.D. Cal. 2006) 2006 WL563049 [no finding of denial of access where the plaintiff was accommodated]; Anderson v. Ross Stores, Inc. (N.D. Cal. 2009) 2009 WL585269, *9-10 [45-60 minute delay in access to fitting room while defendant’s employees determined the best way to accommodate plaintiff was not actionable]; Jones v. Wild Oats Markets, Inc. (S.D. Cal. 2005) 2005 WL 8173324, *5-6 [“Plaintiff could have easily requested and received assistance in reaching the produce scales and bags”].)

The non-binding authorities cited by Defendant are unavailing. As a preliminary matter, there is no binding authority before the Court that states that Plaintiff is required to ask for assistance. In addition, Civil Code section 55.56 does not require that Plaintiff ask for assistance in order to maintain this action, and the Court will not read such a requirement into the statute. Further, the cases cited by Defendant stand for the proposition that the plaintiff cannot maintain an action under the UCRA if the defendant promptly resolves the violation or accommodate the Plaintiff. Defendant has failed to present evidence that it was resolving the violation and/or accommodating person(s) who encountered/deterred by the violation. None of the cited authority suggest the violations under the UCRA become nonactionable if there is a friend or family member that can assist. Moreover, Defendant’s contention that Plaintiff could have called the store to bring out the order to him is based on speculation, as there is no evidence before the Court that the Store could have brought out the order. The evidence simply establishes that Plaintiff did not call the Store.

Thus, Defendant’s Motion for Summary Adjudication as to the full and equal access element is DENIED.

Defendant further contends Plaintiff’s claim under UCRA fails because he cannot demonstrate he was a bona fide patron of the Store. Defendant cites to White v. Square, Inc. and Thurston v. Omni Hotels Management Corp., among other cases, for the statement that to make a claim under the Unruh Civil Rights Act, the individual must establish bona fide intent to use the business’s services. (White v. Square (2019) 7 Cal.5th 1019, 1032; Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, 309.)

Defendant contends Plaintiff did not have a bona fide intent to use Defendant’ services because he has filed nearly 600 similar lawsuits, he went to the store to assess its compliance with disability access laws, he promptly took photos to give to his attorney, does not care for Pizza Hut’s pizza, and the Store is about 15-20 minutes from his residence. (Def. UMF No. 8.)

The Court finds Defendant has established Plaintiff did not have the bona fide intent to use Defendant’s services, as he was there to assess the store’s compliance with disability access laws. This shifts the burden to Plaintiff to establish a triable issue of material fact that he had the bona fide intent to use Defendant’s services.

In opposition, Plaintiff submits evidence that when he visited the Store to assess the Store for compliance with disability access laws and “to buy pizza,” but was deterred from using Defendant’s services because of the condition of the parking. (Pl. Decl., ¶¶ 3-7.) Plaintiff’s declaration, which states that he was there to buy pizza, establishes a triable issue of material fact as to whether Plaintiff had bona fide intent to use the business’s services. (But cf. Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 305 [where the defense challenged plaintiff’s intent by showing “that she ‘never intended to go to Omni’s website to book a hotel’ because she never attempted to book a room via any travel website, by e-mailing Omni, or calling the hotel directly, and she never actually booked a room at another hotel.”]) In addition, serial litigation alone does not speak to Plaintiff’s intent to use Defendant’s services on the day at issue, and whether Plaintiff’s account of the events of this case are credible is an issue of fact for the jury to determine.

Thus, Defendant’s Motion for Summary Adjudication as to the bonafide patron element is DENIED.