BRIAN WHITAKER VS BOP FIGAT7TH LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: 19STLC04037    Hearing Date: March 15, 2021    Dept: 25

HEARING DATE:    Mon., March 15, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME:  Whitaker v. BOP FIGAT7TH, LLC et al. COMPL. FILED: 04-24-19

CASE NUMBER: 19STLC04037 DISC. C/O:  04-24-21

NOTICE:   OK DISC. MOT. C/O:    05-09-21

PROCEEDINGS:     MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff Brian Whitaker

RESP. PARTY: Defendants BOP FIGAT7TH, LLC and California Pizza Kitchen, Inc.

 MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Brian Whitaker’s Motion for Summary Judgment is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a)  OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))  OK

OPPOSITION: Filed on October 1, 2020 [   ] Late [   ] None

REPLY: Filed on October 8, 2021 [   ] Late [   ] None

ANALYSIS:

1. Background

On April 24, 2019, Plaintiff Brian Whitaker (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants BOP FIGAT7TH, LLC (“BOP”) and California Pizza Kitchen, Inc. (“CPK”). Defendants filed a joint Answer on May 21, 2019.

Plaintiff filed the instant Motion for Summary Judgment (the “Motion”) on July 8, 2020.

Defendants filed a Notice of Bankruptcy Stay (the “Notice of Stay”) on August 4, 2020 as to all parties. Plaintiff filed an objection to the Notice of Stay on September 8, and Defendants filed a reply to the objection on September 20, 2020.

On October 1, 2020, Defendant BOP filed an opposition to the Motion and on October 18, Plaintiff filed a reply. Defendant CPK filed a notice of joinder to Defendant BOP’s Opposition to the Motion on December 22, 2020.

At the initial hearing on January 5, 2021, the Court noted that, contrary to Defendants’ argument, the bankruptcy stay filed by Defendant CPK did not automatically apply to all non-debtor defendants and that non-debtor Defendant BOP needed to obtain an order from the bankruptcy court extending the stay to Defendant BOP. (1/5/21 Minute Order.) The Court continued the hearing to allow Defendant BOP an opportunity to obtain that order.

On March 10, 2021, Defendants filed a notice of lodging of the final decree in Defendant CPK’s bankruptcy case. Therein, Defendants stated that bankruptcy proceedings as to Defendant CPK were now closed and that Plaintiff’s claim was not discharged in the bankruptcy. (3/10/21 Notice of Lodging.)

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

1. Discussion

Plaintiff brings this action alleging a violation of the Unruh Civil Rights Act.

Civil Code section 51 subdivision (b) states that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their…disability…, [and] are entitled to the full and equal accommodations advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” A violation of any individual right under the Federal Americans with Disabilities Act (“ADA”) is also a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).) A place of public accommodation includes establishments that serve food or drink. (42 U.S.C. § 12181(7)(B).) Under the ADA, discrimination includes “a failure to remove architectural barriers…, in existing facilities…, where such removal is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)

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).) Any barrier that does not meet the standards set forth in the ADAAG is considered a barrier to access. (Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522, 534.) Under the ADAAGs, sales counters and service counters must be at a maximum of 36 inches long and 36 inches high. (36 C.F.R. § Pt. 1191, App. D.)

Thus, 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; and (6) Plaintiff experienced difficulty, discomfort, or embarrassment due to the violations. (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.)  Intentional discrimination need not be proved to obtain damages under the Unruh Civil Rights Act when the plaintiff establishes a violation of the ADA. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 665.)

A. Plaintiff’s Burden

The following facts are undisputed: (1) that Plaintiff has a spinal cord injury and uses a wheelchair for mobility; (2) that the Restaurant California Pizza Kitchen (the “Restaurant”) is located at 735 S. Figueroa St., Los Angeles, CA (the “Property”); (3) that Defendant BOP currently owns the Property and did so in 2018; (4) that Defendant CPK currently owns the Restaurant and did so in 2018; and (5) that the Restaurant is a place of public accommodation. (UMF Nos. 1-5.)

Plaintiff presents evidence that he visited the Restaurant on January 3, 2018. (Mot., Whitaker Decl., ¶ 3.) On that date, he purchased a water bottle at the Restaurant. (Id. at ¶¶ 4-5, Exh.  4.) He states that when he went to pay for his order, he noticed the sales counter in the takeout area was too high. (Id. at ¶ 6.) Plaintiff explains that having to place items, receive, items, and sign receipts on counters higher than 36 inches cause him to experience an increase in difficulty because he is forced to raise his arms. (Id. at ¶ 8.) On the date of his visit, he states he experienced difficulty, discomfort, and frustration as a result of the Restaurant’s raised sales counter. (Id.) Plaintiff took photographs of the sales counter during his visit. (Id. at ¶¶ 9-10, Exh. 7.)

Plaintiff also presents the declaration of Evens Louis (“Louis”), who visited the Restaurant on February 7, 2018. (Mot., Louis Decl., ¶ 3.) Louis declares that, on the date of his visit, he measured the sales counter in the takeout area to be approximately 42 inches high. (Id. at ¶ 4.) Defendants do not dispute the sales counter was 42 inches high. (UMF No. 11.) It is also undisputed that Louis did not see any lowered counter for use by persons in wheelchairs. (UMF No. 12.)

The above carries Plaintiff’s initial burden. The burden now shifts to Defendant to demonstrate a triable issue of material fact exists.

B. Defendant’s Burden  

In Opposition, Defendant argues Plaintiff did not experience difficulty, discomfort, or embarrassment due to the alleged violations. Specifically, Defendant presents a copy of a deposition transcript for a deposition taken in Whitaker v. BOPFIGAT7TH, LLC, Case No. 2:18-cv-01360-RSWL-E, Plaintiff’s federal action. (Oppo., Link Decl., ¶ 3, Exh. B.)  Defendant points out that Plaintiff testified he was capable of placing the water bottle on the counter. (Id.) Plaintiff also testified that he did not have a problem reaching up to pay the cashier for the water bottle and that it was not painful for him to do so. (Id.) Defendant also points out that Plaintiff’s discovery responses regarding the incident and his deposition testimony are inconsistent. (Oppo., pp. 6:11-7:23, Link Decl., ¶¶ 2, 3, Exh. A, B.) Defendant submits a copy of Plaintiff’s supplemental responses to interrogatories propounded in the federal action. (Id.) In the supplemental interrogatory responses, Plaintiff states he experienced anxiety and embarrassment as a result of having to pay for the water bottle with cash and that he faced additional embarrassment when he dropped the change he received from the cashier. (Id.) However, in his deposition, Plaintiff testified he did not think he dropped any change. (Id.)

This carries Defendant’s showing a triable issue of material fact exists regarding whether Plaintiff’s experienced difficulty, discomfort, embarrassment.

Accordingly, the Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Brian Whitaker’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC04037    Hearing Date: January 05, 2021    Dept: 25

HEARING DATE: Tue., January 5, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Whitaker v. BOP FIGAT7TH, LLC, et al. COMPL. FILED: 11-20-19

CASE NUMBER: 19STLC04037 DISC. C/O: 04-24-21

NOTICE: OK DISC. MOT. C/O: 05-09-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Plaintiff Brian Whitaker

RESP. PARTY: Defendants BOP FIGAT7TH, LLC and California Pizza Kitchen, Inc.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Brian Whitaker’s Motion for Summary Judgment is CONTINUED TO FEB 11, 2021 at 11:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file supplemental papers as requested herein.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on October 1, 2020 [ ] Late [ ] None

REPLY: Filed on October 8, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On April 24, 2019, Plaintiff Brian Whitaker (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants BOP FIGAT7TH, LLC (“BOP”) and California Pizza Kitchen, Inc. (“CPK”). Defendants filed a joint answer on May 21, 2019.

Plaintiff filed the instant Motion for Summary Judgment (the “Motion”) on July 8, 2020. Defendants filed a Notice of Bankruptcy Stay (the “Notice of Stay”) on August 4, 2020 as to all parties. Plaintiff filed an objection to the Notice of Stay on September 8, and Defendants filed a reply to the objection on September 20, 2020.

On October 1, 2020, Defendant BOP filed an opposition to the Motion and on October 18, 2020, Plaintiff filed a reply. Defendant CPK filed its opposition on December 22, 2020, to which no reply has been filed.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

1. Discussion

1. Notice of Bankruptcy Stay

As noted above, on August 8, 2020, Defendants filed a Notice of Stay as a result of Defendant CPK’s Chapter 11 bankruptcy petition. 11 U.S.C. section 362 provides for an automatic stay for proceedings against a debtor defendant following the filing of a bankruptcy petition. Plaintiff objects to Notice of Stay to the extent Defendants attempt to apply the stay to non-debtor Defendant BOP. (9/8/20 Plf. Objection, pp. 1-2.) Indeed, the automatic stay does not usually apply to non-debtor co-defendants. (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 981.)

Defendants argue the automatic stay in this particular case does extend to non-debtor Defendant BOP because Defendant CPK is defending and indemnifying Defendant BOP in this action. (9/10/20 Def. Reply to Objection, p. 1:18-23.) Courts have recognized a bankruptcy stay may be applied to non-debtor defendants in unusual circumstances. (Totten v. Kellogg Brown & Root, LLC (C.D. Cal. 2016) 152 F.Supp.3d 1243, 1268.) One such circumstance is when the judgment against a non-debtor defendant would in effect be a judgment or a finding against the debtor, such as when the bankruptcy debtor is contractually obligated to indemnify the non-debtor defendant in the same lawsuit. (Id.) However, in such circumstances, the non-debtor defendant must first seek an order from the bankruptcy court extending the automatic stay to the non-debtor defendant. (Id.)

Here, Defendant BOP has not secured an order from the bankruptcy court where Defendant CPK’s bankruptcy petition is pending extending the automatic stay to Defendant BOP. Without that order, the Court cannot extend the bankruptcy stay to a non-debtor defendant.

Thus, this hearing is CONTINUED to allow Defendant BOP the opportunity to obtain such an order from the bankruptcy court. If secured, a copy of the order must be filed with this Court no later than 16 court days before the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Brian Whitaker’s Motion for Summary Judgment is CONTINUED TO FEB 11, 2021 at 11:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file supplemental papers as requested herein.

Moving party is ordered to give notice.