Judge Ronald F. Frank, Case 21TRCV00814 2023-02-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00814, Date: 2023-02-27 Tentative Ruling

Case Number: 21TRCV00814 Hearing Date: February 27, 2023 Dept: 8

Tentative Ruling

HEARING DATE: February 27, 2023¿

CASE NUMBER: 21TRCV0000814

CASE NAME: James Shayler v. Jefferson Andrews LLC, et al

MOVING PARTY: Defendant, Jefferson Andrews, LLC

RESPONDING PARTY: Plaintiff, James Shayler

TRIAL DATE: April 17, 2023

MOTION:¿ (1) Motion for Leave to Amend

Tentative Ruling: (1) Denied, without prejudice to being re-filed or the hearing continued with an additional round of briefing on each side. The current motion lacks a “redlined” version of the proposed amending language and a Rule of Court 3.1324 compliant declaration. Were the Court to continue the hearing and find good cause to grant the motion, the trial date would be vacated since the proposed amendment would dramatically alter the nature of this lawsuit, the number and complexity of claimed barriers to access, and the need for additional discovery

I. BACKGROUND¿

A. Factual¿

¿¿

Plaintiff James Shayler (“Plaintiff”) commenced this action on November 1, 2021 against Defendant, Jefferson Andrews, LLC (“Defendant”). His complaint alleged violations of the Unruh Civil Rights Act (“Unruh Act”) and the American with Disabilities Act (“ADA”). Plaintiff has a mobility disability and Plaintiff’s Complaint alleges he encountered certain barriers to accessibility at a single business located at 300 W. Victoria St., Gardena, CA 90248 (“Property”) on or about October 19, 2021.

Plaintiff notes that after the filing of his Complaint, Defendant made alterations to the Property and now claims the barriers on the Property have ben remediated. Due to the alterations and claims of remediation, on December 4, 2022, a Certified Access Specialist (“CASp”) conducted an inspection of the Property. (Declaration of Phyl Grace (“Grace Decl.”), ¶ 2.) Plaintiff now alleges that the CASp identified additional access barriers that relate to Plaintiff’s disability. Plaintiff now seeks to amend the complaint to include additional or other accessibility barriers identified by the CASp, as to other businesses besides the single business named in the original Complaint, that allegedly still exist at the Property.

B. Procedural

On January 26, 2023, Plaintiff filed the Motion for Leave to Amend. On February 10, 2023, Defendant filed an opposition. On February 17, 2023, Plaintiff filed a reply brief.

II. ANALYSIS ¿

A. Legal Standard

Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)

B. Discussion

Plaintiff seeks to amend the Complaint to include the accessibility barriers, identified by plaintiff’s CASp, that still exist on the property. Plaintiff also argues that he is entitled to the remediation of all barriers at the Property that relate to his disability. (Doran v. 7-11, 524 F.3d 1034 (9th Cir. 2008) (holding that once a plaintiff encounters one barrier at a site, he can sue to have all barriers that relate to his disability removed regardless of whether he personally encountered them).) Plaintiff also asserts that good cause exists to grant leave to amend the complaint. In Plaintiff’s original complaint, he alleged the following barriers:

a. An accessible parking area whose slope exceeds ADAAG specifications (Section 502.4);

b. Accessible parking spaces that do not contain compliant accessible parking signage (Section 502.6);

c. Accessible parking spaces that do not contain an adjacent accessible aisle (Section 502.2);

d. No accessible route connecting the accessible parking spaces to the entrance of the Business (Section 206.2.1; 206.2.2); and,

e. Cracked and broken surfaces in the accessible parking area (Section 502.4; 302.1).

Plaintiff notes that the amendments to the Complaint include additional facts from a CASp inspection that took place on December 4, 2022. Plaintiff notes that although Defendant claims the barriers on the Property have been remediated, the CASp identified other continuing barriers that are related to Plaintiff’s mobility disability:

a. The parking lot does not provide a tow away signage (Section 502.8.2);

b. The van accessible parking space has cross-hatched lines measuring as high as 39”

on the center at one location (36” maximum per Section 502.3.3);

c. The access from public right of way has a ramp that does not have handrails at either

side as required (Sections 405.8, 505.2);

d. The access from public right of way has a ramp with running slopes measuring as

high as 8.8% and a ramp slope greater than 1:12 (8.33%) (Section 405.2);

e. The accessible route from public right of way does not contain a directional signage

(Sections 216.3, 216.6).

(Proposed FAC, ¶ 16, Grace Decl., Exh 2.) Plaintiff argues that good cause exists because Plaintiff’s complaint included in its prayer for relief a prayer for injunctive relief enjoining further violations of the ADA and UCRA. (Compl., Prayer, ¶ 2.) Plaintiff notes that Defendant has made alterations to the Property which could have effectively mooted Plaintiff’s claim for injunctive relief. However, through a CASp inspection, Plaintiff claims to has evidence that barriers related to his mobility disability still exist at the Property and he is therefore still entitled to injunctive relief. Plaintiff argues that good cause also exists because Plaintiff is entitled to the remediation of all barriers at the Property that relate to his disability regardless of whether he personally encountered them. (Doran, 524 F.3d 1034. Each of the additional identified barriers to access relate to Plaintiff’s mobility disability (Compl., ¶¶ 1, 21) and are of the same type that Plaintiff encountered and alleged in the original complaint (e.g., related to slopes, paths of travel, and condition of accessible parking spaces). Under Doran, Plaintiff is entitled to have the additional access barriers eliminated that were identified by a CASp and good cause therefore exists for leave to amend the complaint. (See Doran F.3d 1034.)

Plaintiff further notes that good cause further exists because the inclusion of these identified barriers to access evidences Defendant’s lack of policy or plan to ensure there was complaint accessible parking and accessible paths of travel at the Property. (Compl. ¶¶ 18, 19.) Plaintiff asserts that Defendant was on notice that Plaintiff would amend his complaint after he conducted a site inspection. (Compl., ¶ 29.) Plaintiff contends that he attempted to stipulate with Defendant to amend the Complaint, but Defendant refused to stipulate. (Grace Decl. ¶ 3.)

In opposition, Defendant argues that the motion should be denied because it does not comply with the requirements for seeking leave to amend because neither the motion nor declarations explain what changes have been made in the Proposed First Amended Complaint, as required by Rule of Court 3.1324. Defendant also argues that the motion should be denied because Defendant will suffer severe prejudice in this case if the motion is granted because Defendant remediated all of the barriers alleged in Plaintiff’s original complaint and then offered to settle for more than Plaintiff can win at trial, and because with a trial date looming the proposed amended barriers would require new and substantially different discovery and a trial strategy than Defendant had geared its preparation in this case.

Plaintiff’s motion includes a copy of the proposed first amended complaint, however, neither the proposed amended complaint, Motion for Leave to Amend, or Declaration in Support of Leave to Amend include specifications by reference to pages and lines of the allegations that are to be added, nor does it include a declaration specifying the effect and necessity of the proposed amendment. While the Reply states that a “redlined” pleading was provided to defense counsel showing where the proposed changes to the original complaint are being made, that redlined version was not provided to the Court nor was a declaration provided to comply with Rule of Court 3.1324. Because the motion is therefore procedurally defective, the Motion for Leave to Amend is DENIED, but without prejudice to being re-filed with a complying declaration.

Should plaintiff instead seek to continue the hearing on the motion for leave to amend in order to supply the required declaration and a “redlined” version comparing the proposed FAC to the original complaint, the Court would consider doing so but only on the condition that the trial date be vacated in order to address the legitimate claims of prejudice raised by the defense. Each side would be afforded an additional round of briefing, to be focused on how far-ranging the plaintiff can extend the reach of barriers to access that he did not personally experience but which were revealed by his or his expert’s investigation of the single business he did visit or attempt to visit.