CHRISTOPHER MARTINEZ VS GELSON'S MARKETS

Tentative Rulings

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Case Number: 20STLC03319 Hearing Date: September 14, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

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MOVING PARTY: Defendant\r\nGelson’s Markets

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RESP. PARTY: Plaintiff Christopher Martinez

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MOTION FOR SUMMARY JUDGMENT OR,\r\nIN THE ALTERNATIVE, SUMMARY ADJUDICATION

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(CCP § 437c)

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TENTATIVE RULING:

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Defendant\r\nGelson’s Market’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication\r\nis DENIED.

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SERVICE: \r\n

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[X] Proof of Service Timely\r\nFiled (CRC 3.1300) OK

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[X] Correct Address (CCP 1013,\r\n1013a) OK

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

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OPPOSITION: Filed on August 20, 2021 [ ] Late [ ] None

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REPLY: Filed on September\r\n8, 2021 [ ] Late [ ] None

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ANALYSIS:

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I. \r\nBackground\r\n

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On April 14, 2020, Plaintiff Christopher Martinez\r\n(“Plaintiff”) filed an action against Defendant Gelson’s Markets (“Defendant”).\r\nDefendant filed a demurrer to the Complaint on June 3, 2020, which was\r\noverruled on August 24, 2020. Defendant thereafter filed an Answer on September\r\n2, 2020.

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Defendant filed the instant Motion\r\nfor Summary Judgment or, in the Alternative, Summary Adjudication (the\r\n“Motion”) on June 23, 2021. The Motion was initially scheduled for hearing for September\r\n9. The parties filed a stipulation on July 20 requesting that the hearing date for\r\nthe Motion be changed due to a conflict with Plaintiff’s counsel’s calendar.\r\n(7/20/20 Stipulation.) The hearing was rescheduled to September 14 at 10:00\r\na.m. (7/20/21 Order.)

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Plaintiff filed an opposition on\r\nAugust 20 and Defendant filed a reply on September 8.

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II. \r\nRequest\r\nfor Judicial Notice

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Defendant’s request for judicial notice of (1) Appendix C\r\nto 28 C.F.R. pt. 36 and (2) the article “Effective Communication” published by\r\nthe U.S. Department of Justice, Civil Rights Division, Disability Rights\r\nSection and available at https://www.ada.gov/effective-comm.htm is GRANTED. (Evid. Code, § 452, subds. (b), (c).)

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However, the request as to (3)\r\nthe Articles of Incorporation of Encino Market, Co. and (4) the Statement of\r\nInformation for Defendant available on the California Secretary of State\r\nwebsite is DENIED. (People v.\r\nThacker (1985) 175 Cal.App.3d 594, 598-99 [finding that documents prepared\r\nby a private person on file with the Secretary of State and not previously part\r\nof the Court record cannot be judicially noticed].) Even though judicial notice\r\nis denied, the Court still considers these documents as evidence.

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III. \r\nLegal\r\nStandard

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A party seeking summary judgment has the burden of\r\nproducing evidentiary facts sufficient to entitle him/her to judgment as a\r\nmatter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an\r\naffirmative showing that he/she is entitled to judgment irrespective of whether\r\nor not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

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When a Defendant or Cross-Defendant seeks summary\r\njudgment, he/she must show either\r\n(1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete\r\ndefense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When\r\na Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce\r\nadmissible evidence on each element of each cause of action on which judgment\r\nis sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s\r\n“affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’\r\nfacts” and be strictly construed. (Scalf\r\nv. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d\r\n629, 639.)

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The opposing party on a motion for\r\nsummary judgment is under no evidentiary burden to produce rebuttal evidence\r\nuntil the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999)\r\n75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden\r\nshifts to the opposing party to show, with admissible evidence, that there is a\r\ntriable issue requiring the weighing procedures of trial. (Code Civ. Proc., §\r\n437c, subd. (p).) The opposing party may not simply rely on his/her allegations\r\nto show a triable issue but must present evidentiary facts that are substantial\r\nin nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any\r\nalternative request for summary adjudication of issues, such alternative relief\r\nmust be clearly set forth in the Notice of Motion and the general burden-shifting\r\nrules apply but the issues upon which summary adjudication may be sought are\r\nlimited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for\r\nsummary adjudication shall be granted only if it completely disposes of a cause\r\nof action, an affirmative defense, a claim for damages, or an issue of duty.”\r\n(Code Civ. Proc., § 437c, subd. (f)(1).)

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IV. \r\nDiscussion\r\n

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Plaintiff alleges a single cause of action for violations\r\nof the Unruh Civil Rights Act.

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A. Unruh Civil Rights Act

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The Unruh Civil Rights Act states, in pertinent part,\r\nthat all persons, no matter their disability, are “entitled to the full and\r\nequal accommodations, advantages, facilities, privileges, or services in all\r\nbusiness establishments of every kind whatsoever.” (Civ. Code, § 5 1, subds. (a), (b).) A violation under\r\nthe federal Americans with Disabilities Act of 1990…shall also constitute a\r\nviolation of this section.” (Civ. Code, § 51, subd. (f).)

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The Americans with Disabilities Act provides that\r\ndiscrimination by public accommodations includes “a failure to take such steps\r\nas may be necessary to ensure that no individual with a disability is excluded,\r\ndenied services, segregated or otherwise treated differently than other\r\nindividuals because of the absence of auxiliary aids and services, unless the\r\nentity can demonstrate that taking such steps would fundamentally alter the\r\nnature of the good, service, facility, privilege, advantage, or accommodation\r\nbeing offered or would result in an undue burden.” (42 U.S.C.A. § 12182, subd.\r\n(b)(2)(A)(iii).) Similarly, 28 C.F.R. section 36.303, subdivisions (a) and\r\n(c)(1), require that public accommodations take necessary steps so that no\r\nindividual is denied access to a public accommodation due to the absence of\r\nauxiliary aids and services, and require that a public accommodation “furnish\r\nappropriate auxiliary aids and services where necessary to ensure effective\r\ncommunication with individuals with disabilities.”

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Places of public accommodation include places that serve\r\nfood or drink, grocery stores, and concert halls or other places of exhibition\r\nor entertainment. (42 U.S.C.A. § 12181, subds. (7)(B), (C),(E).)

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A plaintiff bringing an action for violation of the Unruh\r\nCivil Rights Act must plead and prove (1) that the plaintiff suffers from a\r\ndisability; (2) that the facility is a place of public accommodation; and (3)\r\nthat the disabled plaintiff was denied “full and equal treatment because of his\r\ndisability on a particular occasion.” (Martinez v. California Pizza Kitchen,\r\nInc. (2018) 30 Cal.App.5th Supp. 14, 18.)

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B. Defendant’s Burden

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The following facts are undisputed: (1) that Plaintiff suffers\r\nfrom moderate to profound hearing loss in both ears; (2) that Defendant’s\r\nStatement of Information on file with the Secretary of State describes Defendant’s\r\nbusiness as “retail grocery”; (3) that Plaintiff visited Defendant’s grocery\r\nstore located at 2725 Hyperion Ave., Los Angeles, 90027 (the “Hyperion Store”)\r\non March 26, 2019; (4) that on the date of Plaintiff’s visit, a local musician\r\nby the name of Rich Sheldon performed at the Store and Plaintiff sat or stood a\r\nfew feet from the performer; (5) that on the date of Plaintiff’s visit, he\r\npurchased a glass of wine and a bottle of water, but did not pay any money to\r\nsee Rich Sheldon’s performance; (6) that Defendant did not sell tickets or\r\notherwise charge any money for Rich Sheldon’s performance; and (7) that\r\nDefendant’s primary purpose in allowing musical performances at the Hyperion\r\nStore is to support local musicians by giving them a platform to promote their\r\nmusic to Defendant’s customers. (Def. UMF Nos. 1-24.)

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Thus, there is no dispute that\r\nPlaintiff suffers from a disability and that the Hyperion Store is a place of\r\npublic accommodation.

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Defendant argues summary judgment\r\nshould be granted (1) because live music performances, such as that by Rich\r\nSheldon, are not part of the goods and services that Defendant normally offers;\r\n(2) because, even if live musical performances were among the goods and\r\nservices normally offered by Defendant, Plaintiff was not denied access to that\r\n“service” and (3) because requiring\r\nDefendant to provide auxiliary aids to all customers would impose an undue\r\nburden on Defendant. (Mot., p. 1.)

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In support of its argument that live\r\nmusical performances are not part of its usual goods and services, Defendant submits\r\na copy of its Statement of Information on file with the California Secretary of\r\nState. (Mot., pp. 3-4, RJN, Exhs. 4.) Therein, Defendant’s business is\r\ndescribed as a “retail grocery” business. (Id.) Defendant also provides the Articles of Incorporation for “Encino\r\nMarket Co.” (Id., Exh. 3.) It is undisputed that before\r\nundergoing a name change, Gelson’s Markets originally operated as Encino Market\r\nCo. (Def., Sep. Stmt, No. 1.) The Articles state that the business was\r\nincorporated “[p]rimarily to engage in the specific business of the retail and\r\nwholesale sale and distribution of groceries, meats, foods products, household\r\nand kitchen supplies, and allied and related lines of merchandise,” to “engage\r\ngenerally in the business of a grocery, meat, and vegetable supermarket,” but\r\nalso to “engage in any business related or unrelated to those [purposes above\r\ndescribed] from time to time authorized or approved by the Board of Directors…”\r\n(Mot., pp. 3-4, RJN, Exh. 3.)

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Relying on Martinez v. California Pizza Kitchen (2018) 30 Cal.App.5th Supp. 14\r\nand Johnson v. Speedway, LLC, (S.D. Fla.\r\n2019) WL 2559258, Defendant argues the live musical performance of Rich Sheldon\r\nwas only an “incidental convenience” that is not part of the regular goods and\r\nservices that it provides to its customers. (Mot., pp. 3-5)

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In Martinez, the plaintiff\r\nfiled an action against a restaurant alleging that he suffered from partial\r\nhearing loss, had a difficult time differentiating sounds without an assistive listening\r\ndevice, and that when he visited the defendant’s restaurant, he was unable to\r\nenjoy the music playing over the speaker in the restaurant. (Martinez v. California Pizza Kitchen, supra, 30 Cal.App.5th Supp. at p. 16-17.) The plaintiff\r\nargued this music was part of the “services, facilities, privileges, advantages,\r\nand accommodations” provided to the restaurant's customers, and by failing to\r\nprovide an auxiliary aid as requested by the disabled plaintiff, the defendant\r\nhad violated the ADA. (Id.) In evaluating the plaintiff’s claim, the\r\ncourt first defined the “goods, services, facilities, privileges, advantages,\r\nor accommodations” being offered by the defendant's restaurant to determine\r\nwhether the plaintiff was denied full and equal enjoyment thereof. (Id. at p. 20.) The Court concluded defendant primarily operated as a\r\nrestaurant and bar and recognized a difference between such facilities and\r\nconcert halls and stadiums. (Id.) The Court reasoned that music over the\r\nspeaker system was not part of the goods and services offered given that there\r\nwas no indication (1) that the music was unique to the defendant restaurant,\r\n(2) that the music was live, (3) that the music was part of a choreographed or\r\npromotional event, or (4) that the music was part of an environment of\r\ncollective excitement normally seen in the sporting context. (Id. at p. 21.) The court also found that unlike Feldman v. Pro Football, Inc. (4^th Cir. 2011) 419 Fed.Appx.\r\n381, the music over the speaker system at the restaurant was “not part of an\r\noverall entertainment experience” so, while the music was auditory, it was not\r\npart of that which the restaurant was required to effectively communicate. (Id.)

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In Johnson, an unreported Florida district court case, a\r\nhearing-impaired plaintiff filed an action alleging a gas station violated the Americans\r\nwith Disabilities Act based on a television media feature at the defendant’s\r\ngas pumps. (Johnson v. Speedway, LLC, supra, WL 2559258\r\nat *1.) Specifically, the plaintiff argued the defendant gas stations’ failure\r\nto provide closed captioning for the television media feature amounted to an\r\nADA violation. (Id.) In rejecting the plaintiff’s\r\nargument, the district court reasoned that the defendant was in the business of\r\nselling gasoline and operating a convenience store, not the media business and\r\nthat the plaintiff was able to effectively communicate with gas station\r\nemployees and make gas purchases on two occasions. (Id. at *3.)\r\nThe district court also found that the television media feature was not a “good\r\nor service” but rather an “incidental convenience.” The Court also expressed\r\napproval of the Martinez decision\r\nthat a restaurant that plays background music was not required to provide an\r\nauxiliary aid for the lyrics of those background songs. (Id.)

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Both cases are\r\ndistinguishable, however. This instant action involves a live musical\r\nperformance, not merely background music or a television media feature that\r\nplays while pumping gas. Indeed, the reasons discussed in Martinez for finding that background music was not part of\r\nthe goods and services offered by the restaurant defendant appear to weigh in\r\nfavor of Plaintiff here. Not only was Rich Sheldon’s performance live, but it\r\nalso appears that it was at least somewhat unique to Defendant’s Hyperion Store\r\nand appears to have been part of a promotional event where, by Defendant’s own\r\nadmission, patrons were able to buy water and alcoholic beverages. (Def., Sep.\r\nStmt., Nos. 6, 7.) Defendant argues that it only “occasionally” allows local\r\nmusicians to perform at the Hyperion Store, but provides no evidence of how often\r\nit hosted live musical performances. Defendant only provides the declaration of\r\nMark Motsenbocker, the Vice President of Human Resources and Risk Management,\r\nstating that, prior to the COVID-19 pandemic, Defendant “occasionally” allowed\r\nlocal musicians to perform at the Hyperion Store, but never ticketed or charged\r\ncustomers to attend such performances. (Mot., Motsenbrocker Decl., ¶¶ 2, 4-5.) Although\r\nadditional evidence regarding exactly how often Defendant offered live musical performances\r\nto its customers would have been helpful for the Court to evaluate whether live\r\nentertainment, in addition to retail grocery services, is one of the goods and\r\nservices Defendant regularly provides to its customers, Defendant objected to\r\nproducing such evidence in discovery and was not ordered to produce it. Nonetheless,\r\nand although the burden has not shifted, the Court notes that Plaintiff submits\r\nevidence in its opposition that Defendant offered live musical entertainment on\r\nmore than an occasional basis, specifically, on at least 183 separate occasions\r\nin 2018 and 2019. (Oppo., Mehrban Decl., ¶ 3, Exh. A.)

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Defendant next argues\r\nthat even if live entertainment is considered one of the services it usually\r\nprovides to its patrons, that Plaintiff was able to effectively communicate\r\nwith staff and thus, was not denied access to any services. (Mot., pp. 6-8.) Specifically,\r\nDefendant argues Plaintiff did not allege he had any issues communicating with\r\nDefendant’s staff at the Hyperion Store and that evidence demonstrates he spoke\r\nto at least three persons on the date of his visit. (Id. at pp. 7-8.) Defendant’s interpretation is too literal. Effective\r\ncommunication does not just encompass conversations between disabled patrons\r\nand staff.

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As the Martinez court discussed, in Feldman v. Pro Football,\r\nInc. (4th Cir. 2011) 419 Fed.Appx. 381, 383-84, the court of appeals\r\naffirmed a district court’s summary judgment ruling on the basis that under the ADA, effective\r\ncommunication requires auxiliary access for the “aural content” broadcast over\r\na sports stadium public address system, including music lyrics. In affirming,\r\nthe court reasoned that such content, including the music played over the\r\npublic address system, was part of the experience that the defendants provided\r\nas a good or service, so full and equal access was required. (Id.)

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Relying on McNiel v. Time Ins. Co., (5th Cir. 2000) 205 F.3d 179, Defendant\r\nargues it is not required to alter the goods and services it offers to satisfy\r\nthe ADA because a disabled person cannot enjoy goods and services to the same\r\nextent as a nondisabled person. (Mot., pp. 7-8; Reply, pp. 5-6.) The Court in McNeil, stated:

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“We acknowledge that it is\r\nliterally possible, though strained, to construe ‘full and equal enjoyment’ to\r\nsuggest that the disabled must be able to enjoy every good and service offered\r\nto the same and identical extent as those who are not disabled. Construed in\r\nthis manner, the statute would regulate the content and type of goods and\r\nservices. That would be necessary to ensure that the disabled's enjoyment of\r\ngoods and services offered by the place of public accommodation would be no\r\nless than, or different from, that of the non-disabled. But such a reading is\r\nplainly unrealistic, and surely unintended, because it makes an unattainable\r\ndemand.

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The unvarnished and sober\r\ntruth is that in many, if not most, cases, the disabled simply will not have\r\nthe capacity or ability to enjoy the goods and services of an establishment ‘fully’\r\nand ‘equally’ compared to the non-disabled.”

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(McNeil v. Time Ins. Co., supra, 205 F.3d\r\nat p. 187.)

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The holding in McNeil, however, does not absolve Defendant from making\r\nan effort to accommodate a hearing-impaired patron’s disability if live\r\nentertainment is one of the goods and services normally offered, which, as\r\ndiscussed above, has not been established one way or the other. Indeed,\r\nDefendant does not even argue that it attempted to\r\naccommodate Plaintiff. Similarly, whether Plaintiff had an assistive listening\r\ndevice for personal use does not absolve Defendant from complying with the ADA.\r\nTo conclude otherwise would undermine the purpose of the ADA and the\r\nprotections it is meant to provide to disabled persons. Notably, Defendant has\r\ncited no authority demonstrating that Plaintiff’s ownership of a personal\r\nassistive listening device absolves it from complying with the ADA.

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Thus, if live musical\r\nentertainment is one of the goods and services provided by Defendant, auxiliary\r\nservices to any aural content, including music lyrics, must be provided under\r\nthe ADA.

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Lastly, Defendant\r\nargues that requiring it to provide auxiliary aids or services as requested by\r\nPlaintiff would impose an undue burden. (Mot., pp. 8-9.) Specifically, it\r\nargues that it does not charge any money for the musical performances that it\r\nallows, so any additional cost would be an undue burden. (Id.) However, Defendant presented no evidence about the actual cost of\r\nproviding auxiliary aids would be. Defendant further concludes that providing\r\nassistive listening devices would be an “impossibility” as Defendant cannot\r\naccommodate individuals with every type and level of hearing impairment by\r\nproviding “every conceivable type of assistive listening device.” (Id.; reply, pp. 6-7.) (Italics omitted.) However,\r\nwithout further discussion and evidence about the types of assistive listening\r\ndevices available and their cost, the Court cannot conclude requiring it to\r\nprovide assistive listening devices is an undue burden.

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Accordingly, the Court finds\r\nDefendant has not carried its burden to demonstrate no triable issue of\r\nmaterial fact exists as to Plaintiff’s Unruh claim. Accordingly, Defendant’s\r\nrequest for summary judgment is DENIED. For the same reasons discussed above,\r\nDefendant’s request for summary adjudication is also DENIED.

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V. \r\nConclusion\r\n& Order

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For the foregoing reasons, Defendant Gelson’s Market’s Motion for\r\nSummary Judgment or, in the Alternative, Summary Adjudication is DENIED.

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Moving party is ordered to give\r\nnotice.

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Case Number: 20STLC03319    Hearing Date: April 26, 2021    Dept: 25

HEARING DATE: Mon., April 26, 2021 JUDGE /DEPT: Chilton/25

CASE NAME: Martinez v. Gelson’s Markets COMP. FILED: 04-14-20

CASE NUMBER: 20STLC03319 DISC. C/O: 09-12-21

NOTICE: OK MOTION C/O: 09-27-21

PROCEEDINGS: MOTION TO COMPEL DEFENDANT’S FURTHER ANSWERS TO INTERROGATORIES

MOVING PARTY: Plaintiff Christopher Martinez

RESP. PARTY: Defendant Gelson’s Markets

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES; REQUEST FOR SANCTIONS

(CCP § 2030.300)

TENTATIVE RULING:

Plaintiff Christopher Martinez’s Motion to Compel Defendant’s Further Answers to Interrogatories is DENIED. In addition, Defendant’s request for sanctions is GRANTED in the amount of $1,387.50 against Plaintiff and Plaintiff’s counsel, jointly and severally, to be paid within thirty (30) days of notice of this order.

SERVICE:

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

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

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on April 13, 2021 [ ] Late [ ] None

REPLY: None filed as of April 21, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On April 14, 2020, Plaintiff Christopher Martinez (“Plaintiff”) filed a Complaint alleging violations of the Unruh Civil Rights Act against Defendant Gelson’s Markets (“Defendant”). Defendant filed an Answer on September 2, 2020.

On November 17, 2020, Plaintiff filed the instant Motion to Compel Defendant’s Further Answers to Interrogatories (the “Motion”). Defendant filed an Opposition on April 13, 2021. No reply brief was filed.

II. Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that . . .”[a]n answer to a particular interrogatory is evasive or incomplete.” (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

III. Discussion

Plaintiff’s Motion is timely and seeks a further response to Special Interrogatory Nos. 3 and 4. (Mot., p. 1:19-24.) Interrogatory No. 3 states, “Please identify all dates on which you provided live music at 2725 Hyperion Ave., Los Angeles, CA 90027.” (Id., Mehrban Decl., ¶ 3, Exh. A.) Interrogatory No. 4 states, “For each date on which you provided live music at 2725 Hyperion Ave., Los Angeles, CA 90027, please explain in detail why you did so.” (Id.)

Defendant opposes Plaintiff’s Motion on the basis that the interrogatories in question are overbroad and burdensome and that Plaintiff’s counsel failed to meet and confer in good faith before this Motion was filed. (Oppo., p. 1:14-27.)

The Court first examines the parties' meet and confer efforts.

A. Meet and Confer Efforts

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) Regardless of the outcome of a particular motion, the Court “shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.020.)

California’s Discovery Act requires a “serious effort at negotiation and informal resolution” which “entails something more than bickering with [opposing counsel.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281.) In determining whether a meet and confer process was reasonable, the Court may consider whether the parties were at an impasse that could not be resolved through the meet and confer process, and whether, “from the perspective of a reasonable person in the position of the discovering party, additional efforts appeared likely to bear fruit.” (Id. at p. 1293-94.) Other factors courts may consider include the size and complexity of the case, the history of the litigation, the nature of the interaction between counsel, the type of discovery requested, and other similar factors. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) In addition, “[j]udges have broad powers and responsibilities to determine what measures and procedures are appropriate in varying circumstances.” (Id.)

1. Sufficiency of the Meet and Confer Process

Plaintiff served Special Interrogatories, Set One, on Defendant via regular mail on September 3, 2020. (Mot., Mehrban Decl., ¶ 3, Exh. A.) Defendant served initial responses to the discovery on October 6, 2020. (Oppo., Hyun Decl., ¶ 3, Exh. A.) As to Interrogatory No. 3, Defendant objected on the basis that the request was overly broad and that the time frame was not relevant to the subject matter. (Id.) As to Interrogatory No. 4, Defendant responded as follows: “On March 26, 2019, the live music was limited to an isolated small area of the supermarket where customers could dine-in and enjoy beverages and food for consumption. The live music was not piped into the supermarket areas.” (Id.)

Plaintiff’s counsel sent Defendant’s counsel an initial meet and confer letter on October 8, 2020. (Id. at ¶ 4, Exh. B.) In the October 8 letter, Plaintiff’s counsel argues that because Defendant denies being a live entertainment venue, Plaintiff is entitled to information regarding how frequently Defendant has provided live music. (Id.) Defendant’s counsel responded to the October 8 letter on October 9 stating that the request was overbroad and unlimited as to time and scope and thus overly burdensome. (Id. at ¶ 5, Exh. C.) Defendant’s counsel suggested that the time frame be limited to six months prior to March 26, 2019, the date of Plaintiff’s alleged visit to Defendant’s establishment, and requested that Plaintiff’s counsel confirm whether he agreed to the proposal. (Id.) That same day, Plaintiff’s counsel responded, simply stating he would “proceed with the motion to compel.” (Id. at ¶ 6, Exh. D.)

Defendant’s counsel sent Plaintiff’s counsel another meet and confer letter on October 14, 2020, reiterating that Defendant was willing to provide supplemental responses as long as Plaintiff reasonably limited the time scope of Interrogatory No. 3, invited Plaintiff’s counsel to make a counter-proposal, and stated that supplemental responses would be provided by October 22, 2020. (Id. at ¶ 7, Exh. E.) Defendant served supplemental responses on October 22, 2020. (Mot., Mehrban Decl., ¶ 4, Exh. B.) Subject to the previous objections, the supplemental response to Interrogatory No. 3 includes dates in 2018 and 2019 on which artist Rich Sheldon provided live music at Defendant’s establishment. (Id.) The supplemental response to Interrogatory No. 4 states: “Subject to and without waiving the foregoing objections, [Defendant’s] supplements its response to this Interrogatory as follows: For each date identified in response to Special Interrogatory No. 3, the purpose of the live music performance was to support local musician Rich Sheldon.” (Id.)

Plaintiff’s counsel sent another meet and confer letter on October 22, 2020. (Id. at ¶ 5, Exh. C.) The letter did not respond to Defendant’s counsel request that the interrogatories be limited to a certain time-frame, and instead reiterated Defendant had to provide all dates, without limitation, on which Defendant provided any kind of live music at the subject location because Defendant had asserted in its Answer it was “never” a live entertainment or music venue and that live music has “never” been part of the goods, services, facilities, privileges, advantages, and accommodations that Defendant “normally” offers. (Id.) Plaintiff’s counsel also noted that the responses to Interrogatory Nos. 3 and 4 were evasive and incomplete as Defendant only provided dates in 2018 and 2019 for one artist, Rich Sheldon. (Id.) Having read the parties' meet and confer correspondence, the Court finds the process to be sufficient.

B. Interrogatory Nos. 3 & 4

The Court finds Interrogatory Nos. 3 and 4 to be overbroad. As worded, the Interrogatories could require Defendant to look back through decades worth of records. Indeed, Defendant states that, as worded, the Interrogatories would force Defendant to “search records going back decades.” (Oppo., p. 5:23-24.)

Plaintiff argues this information is required because it seeks to establish and determine whether live entertainment is “part of the goods, services, facilities, privileges, advantages, and accommodations that Defendant ‘normally offers.’” (Mot., Sep. Statement, p. 3:7-17.) However, Plaintiff did not explain why limiting the scope of the interrogatory to several years, for example, would prevent him from determining what goods and services Defendant normally offers with significantly less burden to Defendant.

Thus, Plaintiff’s request to compel a further answer to Interrogatory Nos. 3 and 4 is DENIED.

C. Sanctions

The Court is required to impose a monetary sanction “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)

Because the Motion was denied, sanctions against Plaintiff are mandatory. Defendant seeks $5,494.50 in sanctions based on 9.9 hours of attorney time billed at $555.00 per hour. (Oppo., Hyun Decl., ¶ 10.) However, the amount sought is excessive given the simplicity of Plaintiff’s Motion and the lack of reply. The Court finds $1,387.50, based on 2.5 hours of attorney time, to be reasonable. Sanctions are awarded against Plaintiff and Plaintiff’s counsel, jointly and severally, and must be paid within thirty (30) days of notice of this order.

IV. Conclusion & Order

For the foregoing reasons, Plaintiff Christopher Martinez’s Motion to Compel Defendant’s Further Answers to Interrogatories is DENIED. In addition, Defendant’s request for sanctions is GRANTED in the amount of $1,387.50 against Plaintiff and Plaintiff’s counsel, jointly and severally, to be paid within thirty (30) days of notice of this order.

Moving party is ordered to give notice.

Case Number: 20STLC03319    Hearing Date: August 24, 2020    Dept: 25

HEARING DATE: Mon., August 24, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Martinez v. Gelson’s Markets COMPL. FILED: 04-14-20

CASE NUMBER: 20STLC03319 DISC. C/O: 09-12-21

PROCEEDINGS: DEMURRER TO COMPLAINT

MOVING PARTY: Defendant Gelson’s Markets

RESP. PARTY: Plaintiff Christopher Martinez

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Defendant Gelson’s Markets’ Demurrer to Plaintiff’s Complaint is OVERRULED.

SERVICE:

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

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

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on June 22, 2020 [ ] Late [ ] None

REPLY: Filed on August 17, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

Plaintiff Christopher Martinez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Gelson’s Markets (“Defendant”) on April 14, 2020.

On June 3, 2020, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an opposition on June 22, 2020, and Defendant filed a reply on August 17, 2020.

1. Request for Judicial Notice

Defendant’s request for judicial notice of Appendix C to Part 36 of 28 C.F.R. is GRANTED. (Evid. Code, § 452, subd. (b).)

Defendant’s request for judicial notice of an article titled “Effective Communication” published by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section and available at https://www.ada.gov/effective-comm.htm is GRANTED. (Evid. Code, § 452, subd. (c).)

Defendant’s request for judicial notice of Encino Market Co.’s Articles of Incorporation and Defendant’s Statement of Information filed with the Secretary of State are DENIED. (People v. Thacker (1985) 175 Cal.App.3d 594, 598-99 [finding that documents prepared by a private person on file with the Secretary of State and not previously part of the Court record cannot be judicially noticed].) In addition, it is unclear to the Court why the Articles of Incorporation for Encino Market Co., an entity not a party to this action, are relevant. Only relevant matters are judicially noticeable. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 (citing Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds).)

Lastly, the request for judicial notice of a print out from Defendant’s website is DENIED. Defendant argues this printout is not reasonably subject to dispute, and therefore judicially noticeable under Evidence Code section 452, subdivision (h), because Plaintiff relied on the website to support his position that the Demurrer should be overruled. (Dem., RJN, p. 2, ¶ 5.) However, facts contemplated by subdivision (h) generally include “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The print-out of Defendant’s webpage represents no such widely accepted matter. In addition, “[t]he contents of Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)

1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris v. City of Santa Monica, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

1. Discussion

A. Service of the Opposition

As an initial matter, the Court addresses Defendant’s argument regarding service of the Opposition. Defendant argues it never received a copy of Plaintiff’s Opposition, and even if it had, service was improper as it was served by mail, not electronically. (Reply, p. 1:17-28.) On this basis, Defendant requests that the Court exercise its discretion to strike the Opposition in its entirety. (Id.)

Defendant relies on Local Rule 3.4, which requires represented parties to file documents with the Court electronically using an approved electronic service provider. (Super Ct. L.A. County, Local Rules, rule 3.4, subd. (a).) However, this rule does not require electronic service between the parties. (See id.) Defendant also cites California Rules of Court, rule 2.251, which requires electronic service pursuant to a local court rule or order. (Cal. Rules of Court, rule 2.251, subd. (c).) Los Angeles Superior Court has no such local rule. In addition, because Defendant filed a Reply on the merits of Plaintiff’s Opposition, it has waived any challenges based on deficiencies in notice. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 [“It is well-settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion”].)

B. Merits

Defendant’s Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Hyun Decl., ¶¶ 2-5.) Defendant demurs to Plaintiff’s Complaint on the basis that it does not state sufficient facts to constitute a cause of action. (Notice of Dem., p. 2:2-7.)

Plaintiff alleges Defendant discriminated against him on the basis of disability and thereby violated the Americans with Disabilities Act and the Unruh Civil Rights Act. (Compl., ¶ 2-6.)

The Unruh Civil Rights Act states, in pertinent part, that all persons, no matter their disability, are “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 5 1, subds. (a), (b).) A violation under the federal Americans with Disabilities Act of 1990…shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).) The Americans with Disabilities Act provides that discrimination by public accommodations includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C.A. § 12182, subd. (b)(2)(A)(iii).) Similarly, 28 C.F.R. section 36.303, subdivisions (a) and (c)(1), require that public accommodations take necessary steps so that no individual is denied access to a public accommodation due to the absence of auxiliary aids and services, and require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” Public accommodations include concert halls or other places of exhibition or entertainment. (42 U.S.C.A. § 12181, subd. (7)(B).)

Here, Plaintiff alleges the following: that he suffers from partial hearing loss; that he has difficulty hearing without an assistive listening device; that Defendant operated a live entertainment venue at 2725 Hyperion Ave., Los Angeles, CA 90027 (the “Venue”); that Plaintiff patronized the Venue on or about March 26, 2019, and requested an assistive listening device but none was provided for him; that the Venue did not have any signage appraising Plaintiff of the availability of an assistive listening device; that as a result of being denied an assistive listening device, Plaintiff was unable to enjoy a live music performance; that live music performances are part of the “goods, services, facilities, privileges, advantages, and accommodations” provided for the “benefit, entertainment, use, and enjoyment of patrons;” and that Plaintiff was “excluded, denied services, segregated, and otherwise treated differently” due to the absence of auxiliary aids. (Compl., ¶¶ 2-5.)

Defendant argues that a discrimination claim must be based on a denial of services a public accommodation normally offers. (Dem., p. 6:17-20.) Relying on the Articles of Incorporation for Encino Market, Co., the Statement of Information describing it as a “retail grocery” business, and a print out of its webpage, Defendant argues that it is not in the live entertainment business, but rather in the grocery business. (Id. at p. 7:1-3.) However, as noted above, the Court denied judicial notice of the Articles of Incorporation, Defendant’s webpage, and Defendant’s Statement of Information. Even if the Court was permitted to take judicial notice of the Articles of Incorporation or Statement of Information, the Court would not be able to take judicial notice of any factual matters stated therein, i.e., that Defendant is in the retail grocery business. (See Poseidon Development, Inc. v. Woodland Lane Estates (2007) 152 Cal.App.4th 1106, 1117 [“[T]he fact that a court may take judicial notice of a recorded deed, or similar document, does not mean that it may take judicial notice of factual matters stated therein”].) Thus, the Court cannot make a finding as to the types of goods and services Defendant offers.

Defendant also argues that a discrimination claim based on the absence of auxiliary services “must allege that the auxiliary aids were necessary to ensure effective communication and the failure to provide those auxiliary aids resulted in a denial of service.” (Dem., p. 8:11-15.) It further argues that there must be a nexus between the goods and services normally offered by the business and the auxiliary aids in question. (Id.)

Here, Plaintiff alleges Defendant is a live entertainment venue. (See Compl., ¶ 3.) Because Defendant has not submitted any judicially noticeable matter that may permit the Court to conclude otherwise, the Court takes Plaintiff’s allegation as true. (Harris v. City of Santa Monica, supra, 56 Cal.4th p. 240.) An auxiliary device for the enjoyment of a live musical performance is directly related to the types of goods and services, i.e., live entertainment, Plaintiff alleges Defendant provides. Indeed, “one is denied full and equal enjoyment of goods, services, and the like when, due to a disability and the lack of auxiliary aids, there is an absence of effective communication relating to those good and services.” (Martinez v. California Pizza Kitchen, Inc. (2018) 30 Cal.App.5th Supp. 14, 21.) (Italics added.)

Thus, because Plaintiff alleges he has a disability, that Defendant’s facility is a place of public accommodation, and that he was denied full and equal treatment on a particular occasion, the Court finds he has properly stated a cause of action for violation of the Unruh Civil Rights Act. Accordingly, the Demurrer is OVERRULED.

1. Conclusion & Order

For the foregoing reasons, Defendant Gelson’s Markets’ Demurrer to Plaintiff’s Complaint is OVERRULED.

Moving party is ordered to give notice.