On 08/11/2020 ANTONIO FERNANDEZ filed a Civil Right - Other Civil Right lawsuit against HOME DEPOT U S A , INC , A DELAWARE CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.
Pending - Other Pending
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
HOME DEPOT U.S.A. INC. A DELAWARE CORPORATION
Court documents are not available for this case.
Hearing08/15/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearing02/08/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketMinute Order (Hearing on Motion for Summary Judgment)Read MoreRead Less
DocketCertificate of Mailing for (Hearing on Motion for Summary Judgment) of 02/04/2021; Filed by: ClerkRead MoreRead Less
DocketHearing on Motion for Summary Judgment scheduled for 02/04/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 02/04/2021; Result Type to Held - Motion DeniedRead MoreRead Less
DocketReply in Support of Motion for Summary Judgment; Filed by: Antonio Fernandez (Plaintiff)Read MoreRead Less
DocketOpposition Defendant Home Depot's Opposition to Plaintiff Fernandez Motion for Summary Judgment; Filed by: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketDeclaration of Cruz in Support of Opposition to MSJ; Filed by: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketRequest for Judicial Notice; Filed by: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketDeclaration of Chilleen in Support of Opposition to MSJ; Filed by: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketNon-Jury Trial scheduled for 02/08/2022 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street CourthouseRead MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/15/2023 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketThe case has been sealed pursuant to: Court OrderRead MoreRead Less
DocketClerk's Notice of Full Payment of Fees Required; Filed by: Clerk; As to: RUSSELL HANDY (Attorney)Read MoreRead Less
DocketComplaint; Filed by: Antonio Fernandez (Plaintiff); As to: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Antonio Fernandez (Plaintiff); As to: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Antonio Fernandez (Plaintiff); As to: Home Depot U.S.A., Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
Case Number: 20STLC06724 Hearing Date: February 04, 2021 Dept: 26
Fernandez v. Home Depot U.S.A., Inc., et al.
MOTION FOR SUMMARY JUDGMENT
(CCP § 437c)
Plaintiff Antonio Fernandez’s Motion for Summary Judgment is DENIED.
Plaintiff Antonio Fernandez (“Plaintiff”) filed the instant action for violation of the Unruh Civil Rights Act (“the Unruh Act”) against Defendant Home Depot U.S.A., Inc. (“Defendant”) on August 11, 2020. Plaintiff filed the instant Motion for Summary Judgment (“the Motion”) on November 6, 2020. Defendant filed an opposition on January 21, 2021 and Plaintiff replied on January 28, 2021.
Plaintiff alleges he is a California resident with physical disabilities. (Compl., ¶1.) He further alleges that when he visited Defendant’s store in Downey, California in July 2019, Defendant failed to provide wheelchair accessible bathrooms in conformity with ADA standards. (Id. at ¶11.) The alleged lack of accessible bathrooms caused Plaintiff difficulty and discomfort because an exposed sink pipe burned his leg. (Id. at ¶¶13-15.)
Defendant’s evidentiary objections to Plaintiff’s declarations are ruled on as follows:
· Sustained as to ¶6 for lack of relevance;
· Overruled as to ¶¶7-8.
Requests for Judicial Notice
The Court grants Plaintiff’s request for judicial notice of the recorded Memorandum of Lease for the Store (located at 7121 Firestone Blvd., Downey, California) pursuant to Cal. Evidence Code section 452, subdivision (b). The Court also grants Plaintiff’s request for judicial notice of the declaration of Leticia Cruz filed in federal court in Fernandez v. Home Depot USA, Inc., Case No. No. 2:19-CV-07184-JF3AJ-E pursuant to Cal. Evidence Code section 452, subdivision (d). However, the Court will not take judicial notice of hearsay statements therein. (Kilroy v. State (2004) 119 Cal.App.4th 140, 143.)
The Court denies Defendant’s request for judicial with respect to items 1-9 for lack of relevance. It is undisputed that Plaintiff is a serial litigant of construction-related accessibility claims, a fact he admits in the Complaint. (Compl., ¶2.) The request with respect to item 10 is denied for failure to show on what basis the Court can take judicial notice of discovery. (See Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477 [judicial notice of discovery limited to the extent it contradicts allegations in the party’s pleading].)
Plaintiff’s Initial Burden of Proof
Plaintiff brings the instant motion for summary judgment based on evidence that Defendant cannot demonstrate any defense to the claim for violation of the Unruh Act. On a motion for summary judgment or adjudication of a particular cause of action, a moving plaintiff must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden 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. (Code Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)
A violation of the American with Disabilities Act (“ADA”) is a violation of section 51, subdivision (f) of California’s Unruh Act. (Cal. Civ. Code, § 51, subd. (f).) Statutory penalties are available for construction-related accessibility violations of the Unruh Act if a patron is denied full and equal access to the place of public accommodation on a particular occasion. (Cal. Civ. Code, § 55.56, subd. (a).) A denial of full and equal access to the place of public accommodation occurs when a patron experiences difficulty, discomfort, or embarrassment due to the violation. (Cal. Civ. Code, § 55.56, subd. (c).) Failure to remove a physical element of the property that does not meet the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) amounts to discrimination under the ADA. (42 U.S.C., § 12182, subd. (b)(2)(A)(iv).)
Accordingly, the elements of a claim for 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; (5) the violations were personally encountered by Plaintiff 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. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168 Cal.App.4th 414.)
In support of the Motion, Plaintiff presents the following evidence. On July 9, 2019, Plaintiff visited the Store to shop. (Motion, Separate Statement, Fact No. 4; Fernandez Decl., ¶3 and Exhs. 1-3.) Upon needing to use the bathroom, Plaintiff noticed that the plumbing underneath the sink not completely wrapped to protect against burning contact. (Motion, Separate Statement, Fact No. 7; Fernandez Decl., ¶7.) As a result, Plaintiff experienced difficulty and discomfort when he slightly burned his leg while washing his hands. (Motion, Separate Statement, Fact No. 8; Fernandez Decl., ¶8.) Plaintiff’s investigator visited the Store on August 12, 2019 and saw that the pipes in the bathroom remained unwrapped. (Motion, Separate Statement, Fact Nos. 9-10; Louis Decl., ¶4 and Exh. 5.)
Plaintiff’s Motion notes that an accessible bathroom requires water supply and drain pipes to be insulated or otherwise configured to protect against contact. (Citing 36 CFR, Pt. 1191, Appendix D (Building Blocks: 606.5) Therefore, the evidence submitted with the Motion is sufficient to carry Plaintiff’s initial burden of proof regarding each element of the Unruh violation. The burden now shifts to Defendant to present evidence that demonstrates existence of a triable issue of material fact.
Defendant’s Burden to Demonstrate the Existence of a Triable Issue of Material Fact
Defendant’s first argument is that Plaintiff’s claim that he burned his leg is fabricated. Although expressed as challenging Plaintiff’s “sham” declaration, the question is one of Plaintiff’s credibility. Defendant’s challenge to Plaintiff’s credibility is permitted here under the summary judgment statute.
If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact.
(Code Civ. Proc., § 437c, subd. (e).) The ability to challenge a party’s credibility on a motion for summary judgment is appropriate in the circumstances of this case, because “[s]ection 437c, subdivision (e), specifically permits a court, in its discretion, to deny summary judgment where the only issue is the credibility of a witness making a statement about state of mind.” (Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 497 (emphasis added).)
Defendant presents evidence that support the existence of a triable issue of material fact regarding Plaintiff’s claim to have burned his leg. First, that despite filing an action in federal court based on his visit to Defendant’s store, Plaintiff did not allege he was burned by the exposed pipes in the bathroom until he filed his motion for summary judgment with the federal court. (Opp., Separate Statement, Fact No. 8; Chileen Decl., Exhs. A-D, F-J.) The alleged burn was not raised in either Plaintiff’s federal complaint or first amended complaint. (Opp., Separate Statement, Fact No. 8; Chileen Decl., Exhs. A-D, F-J.) Additionally, Defendant points to Plaintiff’s own evidence that only one of the sinks in the bathroom at the Store had exposed pipes. (Opp., Separate Statement, Fact No. 8; Fernandez Decl., Exh. 5.) This begs the question why Plaintiff did not use a sink with wrapped pipes to avoid contact with exposed pipes. In fact, Plaintiff alleged in a different federal case that he experienced the same burning contact from exposed pipes after visiting a store in June 2019. (Opp., Separate Statement, Fact No. 8; Chileen Decl., Exh. H.) Having experienced the same problem just one month prior to his visit to Defendant’s store, Plaintiff would have been aware of the danger.
This evidence raises a triable issue of material fact regarding whether Plaintiff encountered an actionable barrier to access that did in fact cause him difficulty and discomfort. It also raises triable issues of material fact as to whether the barrier Plaintiff suffered was more than just a triviality or inconvenience, and whether Plaintiff had a bona fide reason to visit the store. (See Jones v. Wild Oars Markets, Inc., 2005 WL 8173324; Colorado Cross-Disability Coalition v. Too (Del. 2004), Inc., 344 F.Supp.2d 707, 715; White v. Square, Inc., 7 Cal.5th 1019, 1032.)
Plaintiff Antonio Fernandez’s Motion for Summary Judgment is DENIED.
Defendant to give notice.
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