Judge: Maurice A. Leiter, Case: 21STCV31010, Date: 2023-02-08 Tentative Ruling

Case Number: 21STCV31010    Hearing Date: February 8, 2023    Dept: 54

Hearing Date: February 8, 2023

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Plaintiff Orlando Garcia

Responding Party: Defendants George T. Farmer and Christy A. Farmer

T/R:    PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

            PLAINTFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On August 23, 2021, Plaintiff Orlando Garcia sued Defendants George T. Farmer and Christy A. Farmer, asserting causes of action for violations of the ADA and violations of Unruh Civil Rights Act. Plaintiff, a wheelchair user, alleges that Defendants’ restaurant was not accessible to him.

ANALYSIS

“In moving for summary judgment, a ‘plaintiff . . . has met’ his ‘burden of showing that there is no defense to a cause of action if’ he ‘has proved each element of the cause of action entitling’ him ‘to judgment on that cause of action.’”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (as modified (July 11, 2001).)  The plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.”  (Id., at 851, original italics.)

Once the plaintiff has met that burden, the burden shifts to the defendant 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)(1).)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar, supra, 25 Cal.4th at 850.)  The defendant “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  (CCP § 437c(p)(1).)

“[T]o prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” (Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc. (9th Cir. 2010) 603 F.3d 666, 670.)  A violation of the Americans with Disabilities Act (ADA) also qualifies as a violation of Unruh. (Civ. Code § 51(f).) 

Plaintiff presents evidence showing he is disabled and uses a wheelchair. Defendants own real property that includes a restaurant called Cheech’s Pizza. Plaintiff was denied access to Cheech’s Pizza because of his disability. (UMF ¶¶ 1-7.) Plaintiff asserts Defendants’ wheelchair ramp had a steep slope and lacked a level landing, preventing Plaintiff from entering. (UMF ¶¶ 6-7.)

In opposition, Defendants assert the motion fails because the accessibility issue has been remedied. Defendants cite Civ. Code § 55.56(g)(D)(3)(A), which provides, “Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with [provisions of the Act].”

Defendants present evidence showing that an inspection was performed on April 16, 2021. Thereafter, the restaurant installed a wireless doorbell together with a sign stating “ring bell for assistance” at the entrance of the restaurant, and trained its employees to assist disabled persons. Defendants provide the declaration of John Battista, California Certified Access Specialist, who states a barrier removal solution is not readily achievable for Defendants, and that the signage and training of employees is an accessible solution. This is sufficient to create a triable issue of fact as to whether Defendants have violated the ADA. Plaintiff does not address this argument in reply.

Plaintiff’s motion is DENIED.