Judge: Stephen P. Pfahler, Case: 23STCV12497, Date: 2024-11-12 Tentative Ruling
Case Number: 23STCV12497 Hearing Date: November 12, 2024 Dept: 68
Dept.
68
Date:
11-12-24 c/f 7-16-24
Case
#: 23STCV12497
Trial
Date: 2-18-25
SUMMARY JUDGMENT
MOVING
PARTY: Defendant, of GG LA Figueroa, LLC
RESPONDING
PARTY: Plaintiff, Dwain Lammey
RELIEF
REQUESTED
Motion
for Summary Judgment
SUMMARY
OF ACTION
Plaintiff
Dwain Lammey requires the use of a wheelchair. On January 31, 2023, Plaintiff
sought to enter the premises of a “restaurant” (Cold Stone Creamery) owned
and/or operated by Defendants, but maintains non-compliant counters and tables
to accommodate protected persons entering public establishments.
On
June 5, 2023, Plaintiff filed a verified complaint for Violation of the
Americans with Disabilities Act, and Violation of the Unruh Act. On July 14,
2023, an answer was filed by Marlan Cooper, presumably in pro per, and
purportedly on behalf of Maresp Corporation. On July 21, 2023, GG LA Figueroa,
LLC, filed a verified answer to the complaint. On August 29, 2023, a default
was entered against Maresp Corporation.
On
October 13, 2023, the court sustained the demurrer to the answer of GG LA
Figueroa, LLC, and denied the. motion to strike. GG LA Figueroa, LLC filed an
amended answer on November 3, 2023. On January 16, 2024, GG LA Figueroa, LLC
filed a cross-complaint against both Cold Stone Creamery, Inc. and Maresp
Corporation for Express Contractual Indemnity, Implied Indemnity, and Declaratory
Relief.
RULING: Denied.
Evidentiary
Objections
·
Exhibit
A, C-J & Declaration of Marlan Cooper: Overruled.
·
Exhibit
B and Corresponding Declaration of Sahelian: Overruled/Not Relied Upon (Code
Civ. Proc. § 437c, subd. (q).)
·
Declaration
of Jason James: Overruled.
Defendant GG LA Figueroa, LLC moves for summary judgment on
the complaint of Dwain Lammey. The motion opens with a series of accusations
regarding the objectives of Plaintiff and counsel in bringing this action, and
the financial status of Defendant as a franchise operator. On the merits, Defendant
specifically contends that Plaintiff lacked any “bona fide intent” to actually
patronize the business, and only performed a “drive by” examination in order to
bring the complaint. Plaintiff in opposition maintains a valid Americans with
Disabilities Act claim, and challenges the evidence of Defendant submitted in
support of the motion. Defendant in reply maintains the shop complied with all
accessibility requirements, and Plaintiff remains unable to present a valid
claim.
The pleadings frame the issues for motions, “since it is those
allegations to which the motion must respond. (Citation.)” (Scolinos
v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29
Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or
summary adjudication “is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from the evidence’
and uncontradicted by other inferences or evidence, show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is
always on the moving party to make a prima facie showing that there are no
triable issues of material fact.” (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant
moving for summary judgment “has met his or her burden of showing that a cause
of action has no merit if the party has shown that one or more elements of the
cause of action . . . cannot be established.”
(Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has
met that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” (Ibid.)
“When deciding whether to grant summary judgment, the court
must consider all of the evidence set forth in the papers (except evidence to
which the court has sustained an objection), as well as all reasonable
inference that may be drawn form that evidence, in the light most favorable to
the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159
Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An
issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture,
imagination or guesswork.” (Lyons v. Security Pacific National Bank
(1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)
A Violation of the Americans with Disabilities Act of 1990 (ADA)
requires three elements: “1) a
covered disability; (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 [the]
disability.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1060.) Twelve categories
of public accommodation exist, with non-exclusive examples “falling into each
category.” (Ibid.) The subject ice cream shop qualifies as a place of public
accommodation. (42 U.S.C.A. § 12181(7)(B).) A violation of the ADA constitutes
a violation of the Unruh Act. (Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 669-670.) A party proceeding under the Unruh Act Civil Code
section 51, subdivision (f) may obtain statutory damages on proof of an ADA
access violation without the need to demonstrate additionally that the
discrimination was intentional.” (Id. at p. 670.)
Defendant challenges the action, or at least the Unruh act
claim, on grounds of standing. Specifically, Defendant contends Plaintiff
suffered no damages as a result of discriminatory conduct in that Plaintiff as
not a person with a “bona fide intent” to use the particular services or
facilities. (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1024-1025, 1027-1030; Thurston
v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 306-307.)
While the cited authority involves online business entities and the
determination of any intent to transact business with the entities, such as
making a hotel reservation or use credit card processing services, Defendant relies
on a challenge at least in part based on the consistency of the allegations
regarding the ice cream purchase.
Paragraph 26 of the verified
complaint alleges: “When sales and service counters are provided, they must
also be provided at compliant heights. However, it is not enough to simply have
a lowered counter; all the services available at the counter must be available
at compliant height. Here, no lowered counter was provided and the plaintiff
was unable to order his ice cream and interact with the employee at a compliant
counter. This caused difficulty, discomfort, and embarrassment to Plaintiff.”
Paragraph 40c continues: “Plaintiff was interested in this particular business
because he wanted to get ice cream, and he in fact did make a purchase despite
the added difficulties, though he was unable
to eat it at the restaurant. Plaintiff additionally sought to confirm that the
business was in compliance with applicable access laws.”
The court appreciates the
purpose of the challenge in order to support the position of no actual intent
to patronize the establishment. Notwithstanding the pleading gaffe, Plaintiff
in opposition produced a copy of a receipt from the establishment. [Declaration
of Dwain Lammey, Ex. 2.] Thus, the court assumes a transaction occurred, and
therefore no bar under the bona fide intent standard.
Defendant next relies on the lack
of evidence establishing non-compliant service countertops or tables for use by
wheelchair confined customers. Defendant presents the declaration of expert
witness Jason James for purposes of establishing evidence of compliance.
Plaintiff in opposition narrows the
dispute to the issue of sufficient accommodation for outdoor seating. Plaintiff
concedes to the sufficiency of the indoor seating as addressed in the motion, but
relies on the lack of sufficient outdoor seating as the distinguishing factor.
Plaintiff also maintains the self-service counter for items such as spoons
napkins was also inaccessible. [Lammey Decl.]
Plaintiff represents a
preference for outdoor seating, and no such compliant table was made available
on the date in question. [Lammey Decl., Ex. 3.] The two outdoor seats utilized
diagonal crossbars that prevented Plaintiff from utilizing the table, and were
improper in height. [Declarations of Celia Aguirre and Randall Marquis.]
Defendant in reply disputes the
challenges and maintains ADA compliance. Defendant also challenges the “new”
issue raised in opposition regarding self service spoons and napkins as not
required unless specifically requested by a customer.
ADA compliance constitutes at
least part of a basis for determining the validity of an ADA claim. “Whether a
facility is “readily accessible” is defined, in part, by the ADA Accessibility
Guidelines.” (Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011)
631 F.3d 939, 945.) Defendant also takes exception to the lack of any requested
accommodation that could have been rectified with a request. (Skaff v.
Meridien North America Beverly Hills, LLC (9th Cir. 2007) 506 F.3d
832, 839-840.)
The court finds the declaration
of expert witness Jason James establishes ADA compliance for the indoor tables
and dining and service counter. [James Decl., Section 7-8.] Contrary to the
opposition, the court cannot weigh witness credibility, and otherwise accepts
the factually unchallenged declaration, due to the lack of a counter expert.
The counter declarations submitted in opposition in fact lack any establishment
of qualifications, though Defendant offers no evidentiary objections to said
declarations on grounds of qualification. Regardless, the establishment of ADA
compliance for the indoor tables and service counter provides support for the
lack of any evidence of damages caused by the denial of equal use of the
facilities on this basis.
The James declaration however
lacks any definitive conclusion of ADA compliance for the outdoor tables. James
offers an opinion as to the suitability of said outdoor tables for a wheelchair
bound customer, but the court finds no meaningful discussion as to an actual
comparison for the wheelchair utilized by Plaintiff.
“Under the ADA, when a disabled
person encounters an accessibility barrier violating its provisions, it is not
necessary for standing purposes that the barrier completely preclude the
plaintiff from entering or from using a facility in any way. [¶] Of course, a ‘barrier’
will only amount to such interference if it affects the plaintiff's full and
equal enjoyment of the facility on account of his particular disability.
Because the ADAAG establishes the technical standards required for ‘full and
equal enjoyment,’ if a barrier violating these standards relates to a
plaintiff's disability, it will impair the plaintiff's full and equal access,
which constitutes ‘discrimination’ under the ADA. ...” (Chapman v. Pier 1
Imports (U.S.) Inc., supra, 631 F.3d at p. 947.)
Again, Plaintiff relies on the
cross-bar design as interfering with proper use for his wheelchair. While ADA compliance
appears undisputably established as a matter of law for the indoor tables and
service counter, the court lacks a clear basis of evidence for specifically
determining sufficient access to the outdoor tables as a matter of law. “Where
the barrier is related to the particular plaintiff's disability, however, an
encounter with the barrier necessarily injures the plaintiff by depriving him
of full and equal enjoyment of the facility.” (Chapman v. Pier 1 Imports
(U.S.) Inc., supra, 631 F.3d at p. 947 (footnote 4).) The court
therefore finds triable issues of material fact on the basis of whether the
outdoor tables constituted a sufficient accommodation or barrier under ADA
guidelines. [James and Lammey Decl.]
Finally, although Defendant only
cites to a code section established by “Assembly Bill No. 1276, signed into law
on October 5, 2021” which was in fact adopted as Public Resources Code section
42271, the court finds the subject “new issue” not material to adjudication. “(a) Except
as provided in subdivisions (c) and (d), a food facility, for on-premises
dining or when using a third-party food delivery platform, shall not
provide any single-use foodware accessory or standard condiment
packaged for single use to a consumer unless the single-use foodware
accessory or standard condiment is requested by the consumer.” (Pub.
Resources Code, § 42271.) Other than a statement by Plaintiff, the court finds
no basis for an Unruh or ADA violation given Plaintiff’s statement of
preferring not to seek assistance for certain transactions. The court elects
for forego discussion on behalf of Plaintiff to this particular issue given the
lack of legal and factual support. The court therefore declines to find any
triable issues of material fact on this basis and solely relies on the issue
regarding accommodation as to the outdoor tables only.
Plaintiff’s motion for summary
judgment/summary adjudication on calendar for November 14, 2024. Trial remains
set for February 18, 2025.
Defendant of GG
LA Figueroa, LLC to give notice.