Judge Michael P. Linfield, Case Number: 22STCV14496, Date: 2023-08-11 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV14496, Date: 2023-08-11 Tentative Ruling

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

On May 2, 2022, Plaintiff Drew Hunthausen filed his Complaint against Defendant Quality is Our Recipe, LLC on causes of action related to Defendant’s compliance with disability accommodations for the visually impaired under the Unruh Civil Rights Act (Unruh Act) and Disabled Persons Act (DPA).

On May 16, 2023, Defendant filed its Motion for Summary Judgment or, in the Alternative, for Summary Adjudication (“Motion”). Defendant concurrently filed: (1) Declaration of James W. Denison; (2) Separate Statement; and (3) Request for Judicial Notice.

On July 19, 2023, Plaintiff filed his Opposition to the Motion. Plaintiff concurrently filed: (1) Declaration of Drew Hunthausen; (2) Separate Statement; and (3) Evidentiary Objections to Declaration of James W. Denison.

On July 24, 2023, Defendant filed its Notice of Errata to and Amended Declaration of James W. Denison.

On July 25, 2023, Defendant filed its Reply regarding the Motion. Defendant concurrently filed: (1) Objections to Plaintiff’s Separate Statement and Declaration of Drew Hunthausen; (2) Proposed Order on Objections; and (3) Response to Plaintiff’s Evidentiary Objections.

Plaintiff filed an evidentiary objection to Defendant’s Declaration of James W. Dennison. The following is the Court’s ruling on this objection.

Defendant filed evidentiary objections to Plaintiff’s Separate Statement and Declaration of Drew Hunthausen. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3	SUSTAINED
4		OVERRULED
5		OVERRULED
6	SUSTAINED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11	SUSTAINED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18	SUSTAINED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22	SUSTAINED
23		OVERRULED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27		OVERRULED
28		OVERRULED
29		OVERRULED

Defendant requests that the Court take judicial notice of ten other cases filed in the Los Angeles Superior Court that are not related to this case as that term is defined in California Rules of Court, rule 3.300(a).

Judicial notice is DENIED as irrelevant to all of these items. “Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed.” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7, quotation omitted, italics in original.) “A written trial court ruling in another case has no precedential value in this court”. (Budrow v. Dave & Buster’s of Cal., Inc. (2009) 171 Cal.App.4th 875, 885, citations omitted; Bolanos v. Super. Ct. (2008) 169 Cal.App.4th 744, 761; Santa Ana Hosp. Med. Ctr. v. Belshé (1997) 56 Cal.App.4th 819, 831, citation omitted.)

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (1)(a).)

“[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. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. 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, citation omitted.)

“[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.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

“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, citation omitted.)

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; 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”].)

“On 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, citation omitted.)

The causes of action in this case are: (1) a violation of the Unruh Act; and (2) a violation of the DPA. (Complaint, ¶¶ 24–39.)

Defendant moves the Court to: (1) grant summary judgment in favor of Defendant and against Plaintiff on the entirety of the Complaint; or (2) in the alternative, grant summary adjudication in favor of Defendant and against Plaintiff on each cause of action. (Motion, p. 19:9–12.)

Defendant argues that summary judgment is warranted because: (1) Plaintiff’s cause of action under the Unruh Act is premised on a violation of Proposition 65 (specifically, Health and Safety Code section 25249.6); (2) Plaintiff did not provide the notice required by Proposition 65; (3) Plaintiff cannot plead around a Proposition 65 claim with allegations under the Unruh Act; (4) Plaintiff did not meet his burden of identifying the standards violated or the accommodations that should have been made; (5) Plaintiff cannot show he was denied access to the restaurant; and (6) Plaintiff’s claims are defective and preclude damages and injunctive relief. (Motion, pp. 6:10–11, 9:19–20, 12:21–22, 14:16–18, 17:11, 18:13–14.)

Plaintiff disagrees, arguing: (1) Defendant has not met its burden of proof because it did not present admissible evidence; (2) the Motion is not actually brought under Proposition 65; (3) a genuine dispute of material fact exists as to whether Defendant engaged in discriminatory conduct against Plaintiff; (4) Defendant incorrectly argues that Plaintiff must establish a denial of physical access; and (5) Defendant incorrectly argues that Plaintiff must suggest a reasonable accommodation. (Opposition, pp. 3:13–17, 4:20–22, 6:23–24, 7:19–20, 9:1.)

In its Reply, Defendant argues: (1) Plaintiff is bringing a defective Proposition 65 case; (2) Plaintiff admits that his claims concern failures to provide Proposition 65 warnings; (3) an attorney’s admissions on behalf of a party are admissible and sufficient to defeat a Proposition 65 claim; (4) Plaintiff does not counter Defendant’s argument that a Unruh Act claim cannot be premised on compliance with other laws; and (5) the undisputed facts defeat Plaintiff’s DPA claim. (Reply to Motion, pp. 2:14–16, 6:4–6, 8:10–11, 9:4–5.)

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

“A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).)

“Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, 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), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.” (Civ. Code, § 52, subd. (a).)

“Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.” (Civ. Code, § 52, subd. (e).)

Plaintiff alleges that Defendant is liable under the Unruh Act because: (1) Defendant did not warn Plaintiff (and other blind and visually-impaired consumers) about exposures to chemicals that are carcinogenic and can cause reproductive harm; and (2) Defendant did not provide such warnings to blind and visually-impaired consumers. (Complaint, ¶ 27.) (The Court notes that Plaintiff’s Complaint is somewhat unclear in that it sometimes uses the word “non-blind” where it appears that the word “blind” was intended.)

All of Defendant’s arguments regarding the Unruh Act cause of action involve linking it to a violation of Proposition 65, which is codified under Health and Safety Code sections 25249.5, et seq.

The Court first lists the relevant sections and subdivisions of Proposition 65. The Court then discusses what relevance, if any, Proposition 65 has to the Unruh Act.

The following quotations are the relevant sections and subdivisions of Proposition 65.

“No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (Health & Saf. Code, § 25249.6.)

“A person who violates or threatens to violate Section 25249.5 or 25249.6 may be enjoined in any court of competent jurisdiction.” (Health & Saf. Code, § 25249.7, subd. (a).)

“A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.” (Health & Saf. Code, § 25249.7, subd. (b)(1).)

“Actions pursuant to this section may be brought by the Attorney General in the name of the people of the State of California, by a district attorney, by a city attorney of a city having a population in excess of 750,000, or, with the consent of the district attorney, by a city prosecutor in a city or city and county having a full-time city prosecutor, or as provided in subdivision (d).” (Health & Safe. Code, § 25249.7, subd. (c).)

“Actions pursuant to this section may be brought by a person in the public interest if both of the following requirements are met:

“(1) The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice alleges a violation of Section 25249.6, the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Factual information sufficient to establish the basis of the certificate of merit, including the information identified in paragraph (2) of subdivision (h), shall be attached to the certificate of merit that is served on the Attorney General.

“(2) Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation.”

“A person bringing an action in the public interest pursuant to subdivision (d) and a person filing an action in which a violation of this chapter is alleged shall notify the Attorney General that the action has been filed. Neither this subdivision nor the procedures provided in subdivisions (f) to (k), inclusive, affect the requirements imposed by statute or a court decision in existence on January 1, 2002, concerning whether a person filing an action in which a violation of this chapter is alleged is required to comply with the requirements of subdivision (d).” (Health & Saf. Code, § 25249.7, subd. (e)(2).)

“In an action brought by the Attorney General, a district attorney, a city attorney, or a prosecutor pursuant to this chapter, the Attorney General, district attorney, city attorney, or prosecutor may seek and recover costs and attorney’s fees on behalf of a party who provides a notice pursuant to subdivision (d) and who renders assistance in that action.” (Health & Saf. Code, § 25249.7, subd (j).)

“Preservation Of Existing Rights, Obligations, and Penalties. Nothing in this chapter shall alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and nothing in this chapter shall create or enlarge any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.” (Health & Saf. Code, § 25249.13.)

The Court considers whether Proposition 65 and the Unruh Act are linked (i.e., whether liability under Proposition 65 is contingent upon liability under the Unruh Act, and vice versa).

First, there is nothing that explicitly connects violations under the Unruh Act and under Proposition 65. The statutes do not include any references to each other. Further, the statutes involve different issues. Health and Safety Code sections 25249.5 and 25249.6 prohibit contaminating drinking water with certain chemicals and requiring warnings before exposures to certain chemicals, respectively. In contrast, Civil Code sections 51 and 52 are about the rights of the people within the jurisdiction of the State of California and liability for discrimination contrary to those rights, respectively. It is possible to provide warnings of chemical exposure without discriminating, just as it is possible to discriminate without needing to provide warnings of chemical exposure.

Second, the language of the statutes indicates that the Legislature knew how to link statutes and chose not to do so in the way Defendant argues. For example, Civil Code section 52, subdivision (a) specifically allows penalties for violations of Civil Code sections 51, 51.5, and/or 51.6. Similarly, Health and Safety Code section 25249.7, subdivisions (a) and (b) specifically allow for injunctions and penalties, respectively, for violations of Health and Safety Code sections 25249.5 and 25249.6. But none of the Health and Safety Code sections reference the Civil Code sections, and vice versa. This indicates that the Legislature not only knew how to link statutes but chose not to do so for these differing sets of statute.

Finally, the language of the statutes indicates that the remedies for violations of Proposition 65 are cumulative — i.e., in addition to — other violations under law, not dependent upon them.

“Nothing in this chapter shall alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and nothing in this chapter shall create or enlarge any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.” (Health & Saf. Code, § 25249.13.)

Thus, Proposition 65 cannot alter or diminish legal obligations under Civil Code sections 51 and 52, nor can Proposition 65 create or enlarge any defense in an action for enforcing Civil Code section 51 and 52. It is difficult for the Court to see how the Legislature could have been any clearer on this matter.

Of course, it is possible to be liable under both Proposition 65 and the Unruh Act. For example, if a covered entity failed to provide warnings of chemical exposure and did so in a way that was discriminatory, then it is conceivable that the covered entity could be liable under both statutes. But such liability is not automatic. Moreover, individuals harmed under both statutes are not required to sue under both statutes. Plaintiffs and cross-complainants are, by their very nature, allowed to sue under whichever combination of causes of action they wish — so long as there is a basis for doing so in law and fact.

For the reasons discussed above, it is clear that Proposition 65 and the Unruh Act are not linked.

The Court considers whether Plaintiff’s allegation require notice to the government, either under Proposition 65 or the Unruh Act.

First, it is worth repeating that Plaintiff has not alleged that Defendant is liable for a violation of Health and Safety Code section 25249.6 (warning before exposure to certain chemicals). Rather, Plaintiff is alleging that Defendant is liable for a violation of the Unruh Act because Defendant discriminated on the basis of disability against Plaintiff by not making a Proposition 65 warning accessible to Defendant.

Second, there is nothing within the Unruh Act that requires notice to the government.

Finally, “a person filing an action in which a violation of this chapter is alleged” — i.e., a violation of Proposition 65 — “shall notify the Attorney General that the action has been filed.” (Health & Saf. Code, § 25249.7, subd. (e)(2), emphasis added.)

But, as previously discussed, there is nothing linking the Unruh Act with Proposition 65. Thus, it is entirely irrelevant that Proposition 65 contains a notice requirement because it does not apply to Plaintiff’s allegations in this matter.

Therefore, as Plaintiff is not alleging a Proposition 65 claim, Plaintiff was not required to file a notice with the government regarding Plaintiff’s claims.

Defendant does not meet its initial burden of proof here. The Court does not reach issues with the Americans with Disabilities Act (“ADA”) or any issues with triable issues of material fact regarding the first cause of action.

The Court DENIES summary adjudication to the first cause of action for violation of the Unruh Act.

“Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians’ offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” (Civ. Code, § 54.1, subd. (a)(1).)

“A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section, and this section does not limit the access of any person in violation of that act.” (Civ. Code, § 54.1, subd. (d).)

“Any person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54, 54.1 and 54.2 is liable for each offense for the actual damages and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ($1,000), and attorney’s fees as may be determined by the court in addition thereto, suffered by any person denied any of the rights provided in Sections 54, 54.1, and 54.2. . . .” (Civ. Code, § 54.3, subd. (a).)

“. . . The remedies in this section are nonexclusive and are in addition to any other remedy provided by law, including, but not limited to, any action for injunctive or other equitable relief available to the aggrieved party or brought in the name of the people of this state or of the United States.” (Civ. Code, § 54.3, subd. (b).)

“A person may not be held liable for damages pursuant to both this section and Section 52 for the same act or failure to act.” (Civ. Code, § 54.3, subd. (c).)

“Any person who is aggrieved or potentially aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” (Civ. Code, § 55.)

Plaintiff alleges that Defendant is liable under the DPA for the same reasons that Defendant is liable under the Unruh Act. (Complaint, ¶ 27.)

Defendant’s arguments fall into three categories: (1) arguments involving Proposition 65; (2) arguments about whether the requirements of the DPA were met here; and (3) whether there are any triable issues of material fact.

In the prior section discussing the first cause of action for a violation of the Unruh Act, the Court already listed the relevant sections of Proposition 65. The Court reiterates that list here.

The Court now considers a similar question: whether the DPA and Proposition 65 are linked.

The analysis is almost exactly the same, except that it is even stronger in the case of the DPA.

First, there is nothing that explicitly connects violations under the DPA and under Proposition 65. The statutes do not include any references to each other. Further, the statutes involve different issues. Health and Safety Code sections 25249.5 and 25249.6 prohibit contaminating drinking water with certain chemicals and requiring warnings before exposures to certain chemicals, respectively. In contrast, Civil Code sections 54.1 and 54.3 are about the rights of individuals with disabilities and liability for interference with those rights, respectively. It is possible to provide warnings of chemical exposure without interfering with the rights of individuals with disabilities, just as it is possible to interfere with the rights of individuals with disabilities without needing to provide warnings of chemical exposure.

Second, the language of the statutes indicates that the Legislature knew how to link statutes and chose not to do so in the way Defendant argues. For example, Civil Code section 54.3, subdivision (a) specifically allows penalties for violations of Civil Code sections 54, 54.1, and/or 54.2. Similarly, Health and Safety Code section 25249.7, subdivisions (a) and (b) specifically allow for injunctions and penalties, respectively, for violations of Health and Safety Code sections 25249.5 and 25249.6. But none of the Health and Safety Code sections reference the Civil Code sections, and vice versa. This indicates that the Legislature not only knew how to link statutes but chose not to do so for these differing sets of statute.

Third, as previously discussed, Health and Safety Code section 25249.13 makes Proposition 65 cumulative. The prior discussion of this section is reiterated here.

Finally — unlike the Unruh Act — the DPA contains two provisions that clearly reject any notion that it is linked to violations of Proposition 65. The first provision is one similar to that of Health and Safety Code section 25249.13, which makes the DPA cumulative. (Civ. Code, § 54.3, subd. (b) [“. . . The remedies in this section are nonexclusive and are in addition to any other remedy provided by law . . . .”].) The second provision holds that “[a] person may not be held liable for damages pursuant to both this section [i.e., Civil Code section 54.3] and Section 52 for the same act or failure to act.” (Civ. Code, § 54.3, subd. (c).) This is important because it clarifies that the Legislature knew how to prohibit dual relief under two sets of statutes and chose to do so for the Unruh Act and the DPA, but not for the DPA and Proposition 65.

For the reasons discussed above, it is clear that Proposition 65 and the DPA are not linked. Further, as discussed above with the Unruh Act, the DPA does not have a notice requirement. Thus, these allegations did not require Plaintiff to notify the government when pleading the second cause of action for violation of the DPA.

Defendant argues that summary adjudication is appropriate on the second cause of action because Plaintiff did not: (1) identify the standards violated or the accommodations that should have been made; or (2) show he was denied access to the restaurant.

Notably, some of Defendant’s involve the ADA, including assertions about what is involved under the ADA. (Motion, pp. 14–16.)

It is true that a violation of the ADA “also constitutes a violation of [the DPA], and this section does not limit the access of any person in violation of [the ADA].” (Civ. Code, § 54.1, subd. (d).) But the statutes are not identical, and the word “also” in the statute means that there could theoretically be a violation of the DPA that is not also a violation of the ADA.

Indeed, as was noted by the California Supreme Court, the general intent of the 1992 changes to California’s disability discrimination laws was “to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669, citations and internal quotation marks omitted.)

Thus, the DPA is more expansive than the ADA (and, in certain respects, than the Unruh Act), as the DPA incorporates the ADA’s protections and has additional protections. The California Supreme Court held as such when interpreting the fee provision codified in Civil Code section 55, which is part of the DPA. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1047 [“The text of section 55 marks a clear departure from that of the Unruh Civil Rights Act and the ADA. Its fee provision mandates an award to all prevailing parties, including prevailing defendants.”] [Citations omitted.].)

Because the DPA is more expansive than the ADA, the Court does not agree with Defendant’s arguments that are based solely on the ADA. The Court considers the DPA on its own terms, and to the extent it is necessary to consider the ADA as well, the Court shall do so.

When considering the DPA, the Court has not been presented with any authority for the propositions that Plaintiff must identify the accommodations that should have been made or show that he was denied access to the restaurant.

Rather, the law is clear in what it requires: (1) individuals with disabilities are entitled to full and equal access to accommodations and public facilities; and (2) any person, firm, or corporation who interferes with the rights of an individual with a disability is liable. (Civ. Code, §§ 54.1, subd. (a)(1), 54.3, subd. (a).)

If Plaintiff can show he was an individual with a disability whose rights related to that disability were interfered with by Defendant, then Defendant is liable under the DPA.

The right allegedly interfered with here is Plaintiff’s right as a person with disabilities to have access to a warning of certain chemical exposures under Proposition 65. It is irrelevant whether Defendant stopped Plaintiff from entering the restaurant or whether Plaintiff identified what accommodation should have been made; it is only relevant whether Defendant interfered with Plaintiff’s right to the warning.

Thus, the Court does not find persuasive Defendant’s arguments about the requirements of the DPA.

According to Plaintiff, there is a triable issue of material fact regarding whether Plaintiff received Proposition 65 warnings at Defendant’s restaurant when Plaintiff visited the restaurant on December 21, 2021. (Plaintiff’s Separate Statement, Item 1.)

The Court agrees. This is a triable issue of material fact that is not suitable for resolution on a motion for summary judgment. Thus, the Motion must be denied.

Defendant meets its initial burden on this argument. However, Plaintiff meets his subsequent burden as well.

The Court DENIES summary adjudication to the second cause of action for violation of the DPA.