Judge: Olivia Rosales, Case: 21NWCV00433, Date: 2022-12-20 Tentative Ruling

Case Number: 21NWCV00433    Hearing Date: December 20, 2022    Dept: SEC

BAREKAT v. KELETHIN INVESTMENTS, LLC

CASE NO.:  21NWCV00433

HEARING:  12/20/22 @ 1:30 PM

JUDGE:  OLIVIA ROSALES

#7

TENTATIVE RULING

Plaintiff Barekat’s motion for summary judgment is DENIED. 

Opposing Party to give NOTICE.

Plaintiff Barakat moves for summary judgment pursuant to CCP § 437c.

OBJECTIONS

Plaintiff’s seven objections to James’s declaration are overruled.

COMPLAINT

Plaintiff Poupak Barekat alleges that on June 26, 2021, Defendant’s facility did not have designated parking spaces for persons with disabilities that complied with the 2010 ADA Accessibility Guidelines (“ADAAG”).  (Complaint, ¶ 12.)  Plaintiff relies upon mobility devices to ambulate.  The facility had barriers that include:  “a.  an accessible parking area whose slope exceeds ADAAG specifications (Section 502.4); and, b. accessible parking spaces not dispersed evenly throughout the Property (Section 208.3.1).”  (Complaint, ¶ 13.)  Based thereon, the Complaint asserts a single cause of action for Violation of the UCRA, CC § 51 et seq.

STANDARD

A Plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once met, the burden then shifts to the Defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (CCP § 437c(p)(1).)

VIOLATION OF CC § 51: To demonstrate a violation of the Unruh Act a plaintiff may show either (1) intentional discrimination; or (2) a violation of the ADA. 

The Unruh Act provides that individuals with disabilities are “entitled to the full and equal accommodations, advantages, facilities, privileges, or service s in all business establishments of every kind whatsoever.”  (CC § 51(b).) Plaintiff must demonstrate the defendant engaged in intentional discrimination in order to state a cause of action for violation of the Unruh Act.  (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664-65.) A plaintiff must demonstrate not only that the defendant engaged in conduct that denied the plaintiff equal treatment, but that the defendant did so because of the plaintiff’s personal characteristics and that it was a substantial motivating reason.  (Id. at p. 665.)

The elements of a claim for construction-related 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; and (5) the violations were personally encountered by Plaintiff or was deterred 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. CC § 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 CC § 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)." (CC § 51(f).)

Additionally, any violation of the ADA constitutes a violation of the Unruh Act.  (CC § 51(f); see also Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664.)

Plaintiff Baraket submits the following relevant evidence:

·        Plaintiff is disabled and requires the use of accessible parking.  (Plantiff’s Separate Statement (“PSS”) 1-9.)

·        On June 26, 2021, as Barekat approached the access aisle, she found that its surface was uneven, had cracks and bumps, and little hills that were visible for her to notice.  (PSS 15.)

·        Barekat was hesitant to go up the access aisle to the path that led to the Business because she could see that it was uneven and had an abrupt change in level.  (PSS 19.)

·        While Barekat did not fall that day, she had difficulty, had to try to keep her balance, and it caused her anxiety (PSS 20) and caused her medical conditions to affect her more severely than they would have had she not encountered the barriers when she visited the Business and Property. (PSS 21).

·        The property violated ADA standards.  (PSS 30-37.)

In opposition, Defendant submits the declaration of Jason James, who opines that the parking lot, including the accessible parking spaces, meets the 2010 ADA Standards.  (Disputed PSS 31; James Decl., ¶¶ 8-13.)

The court finds that triable issues exist regarding whether the property violated ADA standards, and as such, triable issues also exist regarding whether Plaintiff encountered an access barrier.

Accordingly, the motion is DENIED.