Judge Michael P. Linfield, Case Number: 21STCV40951, Date: 2023-05-19 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV40951, Date: 2023-05-19 Tentative Ruling

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SUBJECT: Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Plaintiff Andrew Baracco’s Motion for Summary Judgment or, in the Alternative, for Summary Adjudication is DENIED.

Defendant Opposition cites to “Garcia v. Summerville Properties, LP, Los Angeles App. Division BV028645 (October 26, 2010.)” (Opposition, p. 9:21-22.) It appears that this is an unpublished opinion. “[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (California Rules of Court, Rule 8.115.) It is improper for Defendant to be citing to this opinion.

The Court also suggests that it does not help Plaintiff’s case to argue that Defendant is “Estrange[d] From Reality.” (Reply, p. 9:19.) “The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1266.)

On November 5, 2021, Plaintiff filed his Complaint against Defendant Shakey’s USA, Inc. on a cause of action for violation of the Unruh Civil Rights Act.

On February 27 and 28, 2022, Plaintiff filed: (1) Motion for Summary Judgment or, in the Alternative, Summary Adjudication; (2) Declaration of Nilofar Nouri; (3) Notice of Lodging Plaintiff’s Compendium of Evidence; (4) Compendium of Evidence; (5) Separate Statement; and (6) Proposed Order.

On April 28, 2023, Defendant filed: (1) Opposition; (2) Memorandum of Points and Authorities in Opposition (“Memorandum”); (3) Declaration of Stephen Abraham; (4) Declaration of Cynthia Staats; (5) Reply to Plaintiff’s Separate Statement; (6) Notice of Lodging Deposition Transcript; and (7) Lodging of Excerpts of Deposition Transcript.

On May 12, 2023, Plaintiff filed: (1) Reply; (2) Objections to Evidence; and (3) Reply to Defendant’s Separate Statement.

Plaintiff filed Objections to Defendant’s evidence. The following are the Court’s rulings as to the Objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED

The Court finds that Plaintiff’s objections are frivolous. Attorney Mouzari was admitted to the Bar in 2009. Attorney Nouri was admitted to the Bar in 2016. Attorneys who have practiced for this long should have a better understanding of the rules of evidence. “This is hardly good advocacy, and it unnecessarily overburdens the trial court.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3.)

Objections to evidence in a Motion for Summary Judgment that are not presented in the form mandated by California Rules of Court, Rule 3.1354, are deemed waived. (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.) Plaintiff’s counsel never filed a proposed order for the Court to rule upon for his objections, and hence has not complied with CRC Rule 3.1354.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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 v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Plaintiff moves for summary judgment, arguing: (1) that Plaintiff is disabled; (2) that Defendant’s website, with a nexus to Defendant’s restaurants, is a place of public accommodation for purposes of the Americans with Disabilities Act (“ADA”); (3) that Defendant’s website has communication barriers relating to Plaintiff’s disability; (4) that Plaintiff personally encountered communication accessibility barriers on Defendant’s website; (5) that Plaintiff is entitled to injunctive relief under the ADA and the Unruh Civil Rights Act; and (6) that Plaintiff is entitled to recover damages under the Unruh Civil Rights Act. (Memorandum, pp. 14:24, 15:7–8, 17:24–25, 19:9–10, 19:24–25, 20:7.)

Defendant opposes the Motion, arguing: (1) that there is a serious question as to Plaintiff’s credibility, which supports denial of Plaintiff’s Motion; (2) that Plaintiff’s contradictory statements at his deposition and contradiction of discovery responses further undermines his credibility, which supports denial of the Motion; (3) that Plaintiff’s failure to offer evidence supporting his claim further undermines his credibility, which supports denial of the Motion; (4) that Plaintiff cannot prevail on his claims for injunctive relief of monetary damages; (5) that Plaintiff lacks standing for injunctive relief under state law; (6) that Plaintiff’s money claims under the Unruh Civil Rights Act necessarily fail; and (7) that there is no basis for granting Plaintiff “partial” relief on his all-or-nothing Motion. (Opposition, pp. 15:15–16, 16:18–20, 19:3–4, 19:21–22, 20:1–2, 21:15, 22:4, 22:19–19.)

In his Reply, Plaintiff argues: (1) that the evidence refutes Defendant’s sole argument about lack of standing; (2) that there is a plethora of irrefutable evidence establishing that Plaintiff has standing in this case; (3) that Defendant is estranged from reality and the law; and (4) that Plaintiff is entitled to injunctive relief under the ADA and the Unruh Civil Rights Act. (Reply, pp. 4:1–2, 7:17–18, 9:18–19, 11:9.)

Through the Declaration of Andrew Baracco (Plaintiff) and Declaration of Jonathan Robert Pool (an expert on software development), Plaintiff sufficiently meets his initial burden by submitting evidence that there are no triable issues of material fact and that Plaintiff is entitled to judgment as a matter of law. (Compendium of Evidence, Exhs. A, B.)

Defendant disputes various material facts. The first issue of material fact that Defendant disputes is Plaintiff’s Separate Statement, Item 8. (“Despite the fact that the subject Website is a direct service, privilege, or advantage of the brick-and-mortar restaurants Defendant operates, it has been inaccessible to visually impaired individuals.”)

The Court agrees with Defendant that Item 8 is a disputed issue of material fact.

Defendant produces the deposition transcript of Andrew Baracco. Among the issues raised by this deposition transcript is whether Defendant’s website is actually inaccessible to visually-impaired individuals. This issue is raised because Plaintiff claims: (1) that Plaintiff had issues with finding on the website a garlic-shrimp pizza (even though he was able to find other offers there, and there is no evidence that Shakey’s ever sold a garlic-shrimp pizza on its website); (2) that when Plaintiff clicked on an “Accessibility” link and then clicked on a “Leave Feedback” link, he was unable to give feedback (giving rise to the question of fact as to whether that issue is enough to make a website inaccessible); and (3) that Plaintiff was unable to access a rewards program through the Shakey’s website — even though, according to Defendant’s Vice President of Marketing, Defendant does not have an online rewards program. (Defendant’s Excerpts of Deposition Transcript, Transcript pp. 46–61, 63, 74–75, 81–89; see also Declaration of Cynthia Staats, ¶¶ 7, 12.)

Defendant meets its subsequent burden in demonstrating that there is at least one triable issue of material fact.

Plaintiff Andrew Baracco’s Motion for Summary Judgment or, in the Alternative, for Summary Adjudication is DENIED.