Judge: Matthew C. Braner, Case: 37-2022-00050829-CU-CR-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Civil Rights Summary Judgment / Summary Adjudication (Civil) 37-2022-00050829-CU-CR-CTL SCHUTZA VS FOOD 4 LESS OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Food 4 Less of California, Inc.'s motion for summary judgment is GRANTED.

Preliminary Matters The court takes note of the existence of the two Los Angeles Superior Court orders Defendant requests judicial notice of, but the requests are otherwise denied; they are neither binding nor persuasive authority for the court's ruling. (San Diego County Employees Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 ['A trial court judgment cannot properly be cited in support of a legal argument . . . .']; Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 ['[A] written trial court ruling has no precedential value.'].) Plaintiff' Scott Schutza's opposition to Defendant's motion is untimely. An opposition to a motion for summary judgment is due 'not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.' (Code Civ. Proc., § 437c, subd. (b)(2).) For a May 10, 2024 hearing, opposition was due no later than April 26, 2024. Plaintiff served and filed his opposition on April 29, 2024, three days late. Plaintiff compounded the prejudicial nature of his untimely opposition by serving it by regular mail from Friendswood, Texas. (ROA #40, pg. 41 (POS).) Although the electronic mail transmission box on his proof of service was checked, Plaintiff apparently did not in fact email the opposition to Defendant. (ROA #43, Chilleen Dec., ¶ 2.) Plaintiff's conduct not only violated Code of Civil Procedure section 1005, subdivision (c), it also in fact resulted in Defendant not receiving the opposition until May 2, 2024, the day before Defendant's reply was due. (Code Civ. Proc., § 1005, subd. (c) ['[A]ll papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).]; ROA #43, Chilleen Dec., ¶ 2.) Although Plaintiff's opposition was untimely, the court will still consider it because his separate statement confirms several material facts (notwithstanding Plaintiff's mistaken assertions of irrelevance) are not disputed.

Summary Judgment Calendar No.: Event ID:  TENTATIVE RULINGS

3090026  14 CASE NUMBER: CASE TITLE:  SCHUTZA VS FOOD 4 LESS OF CALIFORNIA [IMAGED]  37-2022-00050829-CU-CR-CTL Summary judgment is appropriate when all the papers submitted by the parties show there is no triable issue of material fact as to any cause of action and the moving party is therefore entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each and every alleged cause of action is without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of each cause of action cannot be established or that there is a complete defense to each cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) According to the operative complaint, Plaintiff is a paraplegic and wheelchair user who visited Defendant's Santee store location on June 11, 2022, 'motivated in party to determine if the Defendant complies with the disability access laws.' (Complaint, ¶¶ 1, 3, 8.) Plaintiff alleges Defendant failed to fully comply with applicable ADA standards, and thereby violated the Unruh Civil Rights Act and the California Disabled Persons Act, because: 1) the centerline for the 'point of sale' check out card reader was too high (Complaint, ¶ 11); 2) the 'point of sale' check writing stand was too high (Complaint, ¶ 11); and 3) the 'service counters' were too high (Complaint, ¶ 17). Plaintiff alleges the violations denied him full and equal access to the point-of-sale machines and writing surfaces. (Complaint, ¶¶ 13, 18.) The following facts are undisputed: - Plaintiff admits he has no evidence of intentional discrimination. (ROA #41, Plaintiff's Separate Statement, UMF no. 10.) - Plaintiff seeks mandatory injunctive relief under the Unruh Civil Rights Act, and not under the Disabled Persons Act. (Plaintiff's Separate Statement, UMF no. 11; Complaint, p. 8, fn 2.) - The current centerline of the display screen of Defendant's point-of-sale machines at the Santee store is currently no more than 48 inches above the floor, and the display screen is tipped away from the viewer at less than a 30-degree angle. (Plaintiff's Separate Statement, UMF no. 12.) - At the time he visited the Santee store on June 11, 2022, the centerline of the display screen of Defendant's point-of-sale machines was no more than 52 inches above the floor, and the display screen is tipped away from the viewer at less than a 30-degree angle. (Plaintiff's Separate Statement, UMF no.

8.) - Plaintiff was able to reach the point-of-sale machines, for which credit cards are inserted at the bottom of the machine. Employees were readily available to assist Plaintiff in consummating his transaction, and an employee in fact assisted Plaintiff by inserting his credit card into the point-of-sale machine.

(Plaintiff's Separate Statement, UMF nos. 4-6, 9; see also ROA #36, Chilleen Dec., Ex. B (Schutza Depo., 12/28/23), at p. 49:10-12 [Q: So could you reach the machine when you were trying to bend it? A: Yeah, I reached it.].) - All writing surfaces at the Santee store are currently positioned between 28 inches and 34 inches above the floor, and Plaintiff did not use the 'check writing' surface when he visited the Santee store on June 11, 2022. (Plaintiff's Separate Statement, UMF nos. 13, 2.) - The counter alleged to be a 'service counter' is a manager's station that is for employee-only use, and Plaintiff did not visit or use this counter when he visited the Santee store on June 11, 2022. (Plaintiff's Separate Statement, UMF nos. 14, 3.) Based on these undisputed facts, Defendant argues Plaintiff cannot obtain injunctive relief under the Unruh Civil Rights Act because: 1) injunctive relief under the Act requires evidence of intentional discrimination, and Plaintiff has neither alleged nor presented evidence of intentional discrimination; 2) only preventative injunctive relief is permitted under the Act, but Plaintiff seeks only impermissible mandatory injunctive relief; and 3) the claim is moot because the alleged barriers at the Santee store meet applicable standards. The court agrees.

First, Civil Code section 52, subdivision (c), specifies that a request for injunctive relief may be made only if 'there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights . . . .' Thus, injunctive relief under the Unruh Civil Rights Act unambiguously requires a claim of intentional discrimination, which Plaintiff has Calendar No.: Event ID:  TENTATIVE RULINGS

3090026  14 CASE NUMBER: CASE TITLE:  SCHUTZA VS FOOD 4 LESS OF CALIFORNIA [IMAGED]  37-2022-00050829-CU-CR-CTL neither alleged nor presented evidence of.

Second, the Act also specifies that permissible injunctive relief is 'preventative'. (Civ. Code, § 52, subd.

(c)(3) ['A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order . . . .' ], underlining added.) Injunctive relief that is 'preventative' necessarily refers to a prohibitory injunction, and not a mandatory injunction. (See, e.g., Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446 ['[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.']; see also Civ. Code, § 3368 ['Preventive relief is given by prohibiting a party from doing that which ought not to be done.'].) Here, the complaint makes clear the injunctive relief sought by Plaintiff is mandatory (Prayer, ¶¶ 1-3), and Plaintiff admits he is seeking impermissible mandatory injunctive relief.

Defendant also argues Plaintiff is not entitled to damages of any kind because: 1) Plaintiff did not personally encounter (and thus was not denied equal access to) the 'check writing' service and the 'service counter'; 2) the point-of-sale machines are not covered under the ADA, so Plaintiff must prove intentional discrimination, which he has neither alleged nor presented evidence of; 3) the point-of-sale machines were at a compliant height pursuant to the California Building Code at the time Plaintiff visited the Santee store on June 11, 2022; and 4) Plaintiff was not denied equal access to the point-of-sale machines because he was able to reach them and he could readily (and in fact did) receive assistance from Defendant's employees to consummate his transaction. The court agrees.

A plaintiff is entitled to damages under the DPA only if he or she 'personally encountered a violation on a particular occasion,' or 'was deterred from accessing a place of public accommodation on a particular occasion.' (Civ. Code, § 55.56, subd. (b).) To demonstrate he or she was deterred on a particular occasion, a plaintiff must demonstrate he or she '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,' and that 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.' (Civ. Code, § 55.56, subd. (d).) Here, Plaintiff admits he neither personally encountered nor intended to use any of the writing surfaces he alleges were too high. Thus, the only alleged barrier that could arguably support a claim for damages is the point-of-sale machine. However, Plaintiff has not presented evidence the applicable standards for the point-of-sale machine he used at the time of his visit on June 11, 2022 were violated. Remarkably, Plaintiff provides neither argument nor evidence of what the applicable standards even are. Instead, he asserts because he personally felt the point-of-sale machine was 'too high' for him to reach, then a violation of the ADA occurred. That is not the law.

In fact, the point-of-sale machines used by Defendant are not covered by applicable ADA standards (§ 707), which cover only ATMs. Instead, these types of machines (along with ATMs and fare machines) are covered by the 'Accessibility to Public Buildings, Public Accommodations, Commercial Buildings and Public Housing' chapter of the California Building Code. (California Building Code (2022, tit. 24, part. 2, Ch. 11B.) For machines with vertically mounted display screens or screens tipped away from the viewer less than 30 degrees (as here), 'the center line of the display screen and other display devices shall be no more than 52 inches (1321 mm) above the floor or ground surface.' (Id. at § 11B-707.7.1.1.) There is no dispute the point-of-sale machine encountered by Plaintiff had a display screen mounted with its centerline no more than 52 inches above the ground. Consequently, there was no violation, and Plaintiff is therefore unable to obtain damages.

As a explained above, the material facts are not in dispute. Based on these undisputed material facts, and as a matter of law, Plaintiff cannot obtain the injunctive and monetary relief he seeks. Accordingly, Defendant's motion for summary judgment is granted.

If the tentative is confirmed, the court will sign Defendant's proposed judgment.

Calendar No.: Event ID:  TENTATIVE RULINGS

3090026  14 CASE NUMBER: CASE TITLE:  SCHUTZA VS FOOD 4 LESS OF CALIFORNIA [IMAGED]  37-2022-00050829-CU-CR-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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