This case was last updated from Los Angeles County Superior Courts on 08/21/2020 at 01:00:27 (UTC).

EGAL SHAHBAZ VS SAB INVESTMENT PROPERTY, LLC, ET AL.

Case Summary

On 11/09/2018 EGAL SHAHBAZ filed a Civil Right - Other Civil Right lawsuit against SAB INVESTMENT PROPERTY, LLC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3954

  • Filing Date:

    11/09/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

SHAHBAZ EGAL

Defendants

SAB INVESTMENT PROPERTY LLC

YOUR WAY OUT BAIL BONDS

Attorney/Law Firm Details

Plaintiff Attorney

SHAHBAZ JACOB ARASH

15760 Ventura Blvd

Encino, CA 91436

Defendant Attorney

KATOFSKY JEFF

 

Court Documents

Separate Statement - Separate Statement

8/11/2020: Separate Statement - Separate Statement

Reply (name extension) - Reply Defendant's SAB Investment Property, LLC's Opposition to Plaintiff's Motion to Compel Further Request for Productions - Set One

8/17/2020: Reply (name extension) - Reply Defendant's SAB Investment Property, LLC's Opposition to Plaintiff's Motion to Compel Further Request for Productions - Set One

Separate Statement - Separate Statement

8/11/2020: Separate Statement - Separate Statement

Separate Statement - Separate Statement

8/11/2020: Separate Statement - Separate Statement

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 06/09/2020

6/9/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 06/09/2020

Minute Order - Minute Order (Court Order)

6/1/2020: Minute Order - Minute Order (Court Order)

Separate Statement - Separate Statement

8/30/2019: Separate Statement - Separate Statement

Request for Dismissal - Request for Dismissal

9/20/2019: Request for Dismissal - Request for Dismissal

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

11/22/2019: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Reply (name extension) - Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication

12/13/2019: Reply (name extension) - Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Request for Judicial Notice - Request for Judicial Notice

12/17/2019: Request for Judicial Notice - Request for Judicial Notice

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

12/18/2019: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Minute Order - Minute Order (Ruling on Submitted Matter)

1/23/2020: Minute Order - Minute Order (Ruling on Submitted Matter)

Certificate of Mailing for - Certificate of Mailing for (Ruling on Submitted Matter) of 01/23/2020

1/23/2020: Certificate of Mailing for - Certificate of Mailing for (Ruling on Submitted Matter) of 01/23/2020

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/1/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Separate Statement - Separate Statement

4/8/2020: Separate Statement - Separate Statement

Motion to Compel (name extension) - Motion to Compel Motion to Compel Responses and to Strike Defendant's Objections; Request for Sanctions

4/8/2020: Motion to Compel (name extension) - Motion to Compel Motion to Compel Responses and to Strike Defendant's Objections; Request for Sanctions

Separate Statement - Separate Statement

4/8/2020: Separate Statement - Separate Statement

67 More Documents Available

 

Docket Entries

  • 09/01/2020
  • Hearing09/01/2020 at 02:00 PM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 08/20/2020
  • DocketNon-Appearance Case Review re lodging of proposed Order of Dismissal scheduled for 09/01/2020 at 02:00 PM in Spring Street Courthouse at Department 26

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  • 08/20/2020
  • DocketMinute Order (Ruling on Submitted Matter)

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  • 08/20/2020
  • DocketCertificate of Mailing for (Ruling on Submitted Matter) of 08/20/2020; Filed by: Clerk

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  • 08/20/2020
  • DocketOn the Court's own motion, Hearing on Motion to Compel Further Responses to Supplemental Request for Production of Documents, Set One; Request for Sanctions against Defendant and their Attorneys of Record in the Amount of $2,000 scheduled for 08/24/2020 at 09:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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  • 08/20/2020
  • DocketOn the Court's own motion, Hearing on Motion to Compel Further Responses to Supplemental Form Interrogatories; Request for Sanctions in the Amount of $2,000 against Defendant and their Attorneys of Record scheduled for 08/24/2020 at 09:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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  • 08/20/2020
  • DocketOn the Court's own motion, Hearing on Motion to Compel Further Discovery Responses scheduled for 08/24/2020 at 09:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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  • 08/20/2020
  • DocketOn the Court's own motion, Order to Show Cause Re: Failure to File Proof of Service scheduled for 11/12/2021 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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  • 08/20/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 10/21/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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  • 08/20/2020
  • DocketOn the Court's own motion, Hearing on Motion - Other to Exclude Plaintiff's Testimony at Trial scheduled for 09/15/2020 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/20/2020

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89 More Docket Entries
  • 11/16/2018
  • DocketNon-Jury Trial scheduled for 05/08/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/16/2018
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/12/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/09/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 11/09/2018
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 11/09/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/09/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 11/09/2018
  • DocketCivil Case Cover Sheet; Filed by: Egal Shahbaz (Plaintiff)

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  • 11/09/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Egal Shahbaz (Plaintiff)

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  • 11/09/2018
  • DocketRequest to Waive Court Fees; Filed by: Egal Shahbaz (Plaintiff)

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  • 11/09/2018
  • DocketComplaint; Filed by: Egal Shahbaz (Plaintiff); As to: Sab Investment Property, LLC (Defendant); Your Way Out Bail Bonds (Defendant)

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Tentative Rulings

Case Number: 18STLC13954    Hearing Date: August 19, 2020    Dept: 26

MOTION FOR TERMINATING, ISSUE, EVIDENCE, MONETARY SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendant SAB Investment Property, LLC Motion for Issue Sanctions, or in the alternative Evidentiary Sanctions, or in the alternative Terminating Sanctions; and Request for Monetary Sanctions is DENIED AS TO THE ISSUE, EVIDENCE AND MONETARY SANCTIONS, AND GRANTED AS TO THE TERMINATING SANCTIONS. PLAINTIFF’S COMPLAINT IS HEREBY DISMISSED WITH PREJUDICE. DEFENDANT TO FILE PROPOSED ORDER OF DISMISSAL WITHIN TEN (10) DAYS.

ANALYSIS:

Plaintiff Egal Shahbaz (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendant SAB Investment Property, LLC (“Defendant”) on November 9, 2018. On August 30, 2019, Defendant served Special Interrogatories and Request for Production of Documents on Plaintiff by mail. (Motions, Song Decl. ¶3 and Exh. A.) Responses were due by October 4, 2019. (Code Civ. Proc., §§ 2030.260, 2031.250.) On October 7, 2019, Plaintiff untimely served unverified responses to the discovery requests. (Id. at ¶4 and Exh. B.)

On February 19, 2020, the Court granted Defendant’s Motions to Compel Plaintiff’s Responses to the Special Interrogatories and Requests for Production. (Minute Order, 2/19/20.) Plaintiff’s counsel submitted on the Court’s ruling by email. (Minute Order, 2/19/20.) Defense counsel served notice of the ruling on Plaintiff’s counsel by mail on the same date. (Motion, Song Decl., Exh. H.)

Discussion

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court may impose a terminating sanction by one of the following orders:

An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

An order staying further proceedings by that party until an order for discovery is obeyed.

An order dismissing the action, or any part of the action, of that party.

An order rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

The court finds that terminating sanctions are warranted here. Following the Court’s February 19, 2020 ruling regarding the written discovery requests and sanctions, Defendant served notice of the order on Plaintiff by mail. Despite notice of the Court’s order, Plaintiff has not complied by serving verified and code-compliant responses without objection. (Motion, Song Decl., ¶7.) Given the notice provided, the Court finds Plaintiff’s failure to comply with the Court’s February 19, 2020 order to be willful. Furthermore, although Plaintiff was properly served with the instant Motion for Terminating Sanctions, no opposition has been filed.

Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser sanctions. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.) However, the Court declines to award additional monetary sanctions on the grounds that such an award would be futile.

Conclusion

Defendant SAB Investment Property, LLC Motion for Issue Sanctions, or in the alternative Evidentiary Sanctions, or in the alternative Terminating Sanctions; and Request for Monetary Sanctions is DENIED AS TO THE ISSUE, EVIDENCE AND MONETARY SANCTIONS, AND GRANTED AS TO THE TERMINATING SANCTIONS. PLAINTIFF EGAL SHAHBAZ’S COMPLAINT IS HEREBY DISMISSED WITH PREJUDICE.

Moving party to give notice. 

Case Number: 18STLC13954    Hearing Date: February 19, 2020    Dept: 26

Shahbaz v. SAB Investment Property, LLC, et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES, REQUEST FOR PRODUCTION; REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant SAB Investment Property, LLC (1) Motion For Order Compelling Plaintiff To Respond to Special Interrogatories; Request for Sanctions; and (2) Motion For Order Compelling Plaintiff to Respond to Request for Production of Documents; Request For Sanctions are GRANTED. PLAINTIFF TO SERVE VERIFIED RESPONSES WITHOUT OBJECTION TO THE DISCOVERY REQUESTS WITHIN 20 DAYS’ NOTICE OF THIS ORDER. THE COURT FURTHER ORDERS THAT PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $1,245.00 TO DEFENSE COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

Plaintiff Egal Shahbaz (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendant SAB Investment Property, LLC (“Defendant”) on November 9, 2018. On August 30, 2019, Defendant served Special Interrogatories and Request for Production of Documents on Plaintiff by mail. (Motions, Song Decl. ¶3 and Exh. A.) Responses were due by October 4, 2019. (Code Civ. Proc., §§ 2030.260, 2031.250, On October 7, 2019, Plaintiff untimely served unverified responses to the discovery requests. (Id. at ¶4 and Exh. B.) Despite Plaintiff’s contention, there is no documentary evidence to show that verifications or responses were sent on September 9, 2019 as no exhibits are attached to the declaration of Plaintiff’s counsel. (Opp., Shahbaz Decl., ¶¶4-5.)

The failure to timely serve responses, whether containing objections, or facts, or both, results in waiver of all objections. (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.) As of the date the Motions were filed—November 22, 2019—Defendant had not received verified responses to the discovery requests from Plaintiff without objection.

Based on Plaintiff’s failure to timely respond to the propounded discovery requests, Defendant is entitled to verified responses without objections to the interrogatories and requests for production within twenty (20) days of notice of this Order. (Code Civ. Proc., §§ 2030.290, 2031.300.)

The Court also finds that Plaintiff’s failure to respond is a misuse of the discovery procedures. (Code Civ. Proc., § 2023.010, et seq.) While the request for sanctions is based solely on an unsuccessful and unjustified opposition, the Court finds it sanctions are appropriate in light of the oppositions’ failure to demonstrate why the relief requested should not be granted. (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).) Sanctions are appropriate in the amount of $1,245.00 based on three hours of attorney time billed at $375.00 per hour, plus two filing fees of $60.00 each. (Motion, Song Decl., ¶9.) Sanctions of $1,245.00, awarded jointly and severally against Plaintiff and his counsel of record, are to be paid within thirty (30) days from notice of this Order.

Defendant SAB Investment Property, LLC (1) Motion For Order Compelling Plaintiff To Respond to Special Interrogatories; Request for Sanctions; and (2) Motion For Order Compelling Plaintiff to Respond to Request for Production of Documents; Request For Sanctions are GRANTED. PLAINTIFF TO SERVE VERIFIED RESPONSES WITHOUT OBJECTION TO THE DISCOVERY REQUESTS WITHIN 20 DAYS’ NOTICE OF THIS ORDER. THE COURT FURTHER ORDERS THAT PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $1,245.00 TO DEFENSE COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.

Case Number: 18STLC13954    Hearing Date: December 18, 2019    Dept: 94

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Defendant SAB Investment Property, LLC’s Motion for Summary Judgment or in the Alternative Summary Adjudication is DENIED.

ANALYSIS:

Background

On November 9, 2018, Plaintiff Egal Shahbaz (“Plaintiff”) filed a Complaint for statutory damages and permanent injunctive relief against SAB Investment Property, LLC (“SAB”) and Your Way Out Bail Bonds (“YWO”) (collectively, “Defendants”). SAB is the landlord and owner of the premises out of which YWO operates. (Sabouhi Decl., ¶¶ 2, 3.) The complaint alleges Defendant failed to offer a disabled handicap parking spot for Plaintiff and others similarly disabled. (Compl., ¶¶ 4, 12.)

On September 23, 2019, YWO was dismissed with prejudice. On August 30, 2019, SAB filed this Motion for Summary Judgment or in the Alternative Adjudication (the “Motion”). On December 4, 2019, Plaintiff filed an Opposition brief. On December 13, 2019, SAB filed a reply brief.

Judicial Notice

A summary judgment motion can be based on matters of which the court must or may take judicial notice. (Code Civ. Proc., § 437c, subd. (b)(1).) Judicial notice may be taken of records of official acts of the legislative, executive, and judicial departments of the United States or of any state of the United States. (Evid. Code, § 452, subd. (c).) Judicial notice may also be taken of records of any court of this state or any court of record of the United States or of any state in the United States. (Evid. Code, § 452, subd. (d).)

SAB requests that the Court take judicial notice of Defendant’s Notice of Motion and Motion to Compel Responses to Special Interrogatories, Set One propounded upon Plaintiff on November 22, 2019 due to Plaintiff’s failure to provide a verification of his responses. These documents are records of the Court, and thus can be noticed under Evidence Code section 452, subdivision (d).

The request is granted.

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).) 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).)

Discussion

The Court notes that Plaintiff’s Complaint requests injunctive relief and statutory damages without citing to the appropriate Civil Code section 52 for statutory damages or section 55 for injunctive relief.

1.  Defendant’s Evidentiary Objections

  1. Declaration of Egal Shabaz: Overruled as to numbers 1, 4, 5, 7, and 8; Sustained as to numbers 2, 6.

  2. Declaration of Odell Hale III: Overruled as to numbers 1, 2 ,3, and 4 (portion stating “No cars were parked in the tandem states…”) Sustained as to number 4 (the portion stating “…I was told by staff that parking there was ‘ok’ for customers.”)

  3. Plaintiff’s use of Responses to Defendant’s Special Interrogatories in its own favor: Sustained

2.  Plaintiff’s Evidentiary Objections

  1. Declaration of Salvador Rivas: Overruled as to numbers 1, 2, 3, 4, and 5; Sustained as to number 6.

  2. Declaration of Farzam Sabouhi: Overruled as to numbers 1, 2, 3, 4, 5, and 7; Sustained as to number 6.

3.  Civil Code §§ 54 and 54.1

Civil Code section 54 subdivision (a) states that [i]ndividuals with disabilities or medical conditions have the same right as the general public to the full and free use of…public buildings,…public facilities, and other public places.” A violation of the Americans with Disabilities Act constitutes a violation under this section. (Code Civ. Proc., § 54, subd. (c).)

Code of Civil Procedure section 54.1, subdivision (a)(1) states that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, …places of public accommodation,…and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.”

In his Complaint, Plaintiff alleges that Defendants’ premises failed to offer a handicap parking spot in Defendants’ parking lot, that an “architectural barrier” prevented Plaintiff from his intended use of the public accommodation, and that the architectural barrier actually denied him access for Plaintiff’s disabilities. (Compl., ¶ 4, 5, 6.) The American Disabilities Act provides list of entities that are considered “public accommodations.” (42 U.S.C.S., § 12181, subd. (7).) However, California has interpreted that list as illustrative of the “broader concept that places of public accommodation are places designed and intended to provide services, goods, privileges, and advantages to members of the public…” (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1104.) The Health and Safety Code section 19955 defines a public accommodation as “a building, structure, facility, complex, or improved area which is used by the general public and shall include auditoriums, hospitals, theaters, restaurants, hotels, motels, and convention centers.” (Italics added.)

SAB argues the parking lot Plaintiff claims he was denied access to is not a place of public accommodation because the parking spaces are reserved solely for YWO employees. (UMF Nos. 10, 11; Sabouhi Decl., ¶¶ 4, 5, 6; Rivas Decl., ¶¶ 6, 7, 9.) As evidence, SAB submits a Lease Agreement between SAB and YWO which states, in pertinent part, “[l]essee will have the use of 3 tandem parking spaces directly behind the building…Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee parking spaces…” (Sabouhi Decl., ¶ 3, Exh. 2, ¶ 2.6.) (Emphasis added.) SAB also provides photographs of the tandem parking spaces in question marked as “EMPLOYEE PARKING” in white ink on the concrete and a “STAFF PARKING ONLY” sign above the wall. (Rivas Decl., ¶ 9, Exh. 4.)

This carries SAB’s initial burden of proof to demonstrate that no triable issues of material fact exist as to the parking lot being closed to the public and thus, not a place of public accommodation. The burden now shifts to Plaintiff to present evidence of any such triable issue of material fact.

In response, Plaintiff argues, that sign inadequately warn customer not to park in the YWO’s parking lot because signs don’t say “no customer parking.” (UMF No. 16.) However, Plaintiff’s bare statements do not defeat SAB’s evidence showing there is a sign affixed to the wall that states “STAFF PARKING ONLY” and a sign on the concrete that readings “EMPLOYEE PARKING.” (Rivas Decl., ¶ 9, Exh. 4.)

Plaintiff also argues that SAB has no evidence the parking lot is not regularly being used by non-employee vehicles and notes that SAB provides no evidence that customers actually do not park in the back. (Oppo., p. 5.) In SAB’s reply brief, it objects to the Declaration of Odell Hale III (“Hale”) on the basis that his statements are irrelevant, speculative, lack competency, constitute hearsay, and fail to lay proper foundation. (Reply, p. 5.) Hale states that he is a patron of a business located adjacent to YWO and has parked at SAB’s property for the past seven years “due the fact [SAB] appears to leave its property unmonitored and fails to enforce any policy regarding the parking spaces.” (Hale Decl., ¶ 3.) The Court overrules SAB’s objections to this statement due to lack of foundation because Hale does not claim he knows for a fact the lot is unmonitored, but rather that it appears to be. Hale also states he parked in YWO’s tandem parking spaces about six months ago when staff told parking there “was ‘ok’ for customers.” (Id., ¶¶ 4, 5.) The Court sustains SAB’s objection that the statement “ok” by YWO employees constitutes hearsay. However, the Court overrules SAB’s objections as to Hale having parked in SAB’s parking lot on occasion for the past seven years and specifically in YWO’s tandem parking spaces on one occasion six months ago. (Id., ¶ 3, 4.)

Hale’s statements raise a triable issue of material fact as to whether the parking spaces exclusively for employees, or whether the it is a place to which the general public is invited to use when visiting YWO. Thus, summary judgment as to this issue is improper.

4.  Civil Code § 51

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…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 is also a violation under this section.” (Civ. Code § 51, subd. (f).)

Plaintiff similarly alleges that that Defendants’ premises failed to offer a handicap parking spot in Defendants’ parking lot, that an “architectural barrier” prevented Plaintiff from his intended use of the public accommodation, and that the architectural barrier actually denied him equal access for Plaintiff’s disabilities. (Compl., ¶¶ 12, 13, 14.)

SAB argues Plaintiff cannot establish he was denied full and equal access to Defendants’ employee only parking lot because it is not a place open to the public. “A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.” (Civ. Code, § 55.56, subd. (b).) (Italics added.)

As noted above, SAB has carried their initial burden to demonstrate that there is no triable issue of material as to the parking lot not being a place of public accommodation. The burden now shifts to Plaintiff to present evidence of any such triable issue of material fact. Hale’s statements raise a triable issue of material fact as to whether the parking spaces exclusively for employees, or whether the it is a place to which the general public is invited to use when visiting YWO.

Thus, summary judgment as to this issue is improper.

Standing

SAB argues that Plaintiff lacks standing to bring this claim under the Americans with Disabilities Act, and thus under the California law.

Under California law, a party has standing if he or she is able to allege some invasion of a legally protected interest. ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1220.) “ ‘Standing rules for actions based upon statute may vary according to the intent of the issue of the Legislature and the purpose of the enactment.” (Id.) The purpose of Civil Code section 51 is to protect a person’s right to “ ‘full and equal access’ to ‘all business establishments.’ [Citation].” (Id.) A plaintiff has standing if he or she has been the victim of a defendant's discriminatory act. (Id.)

SAB argues here that Plaintiff’s inability to use the parking lot was not an act of discrimination by Defendants’, but rather a result of the parking lot not being open to the public. (UMF 10, 11, 12, 15, 16, 18.] As evidence, SAB submits a Lease Agreement between SAB and YWO which states, in pertinent part, “[l]essee will have the use of 3 tandem parking spaces directly behind the building…Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee parking spaces…” (Sabouhi Decl., ¶ 3, Exh. 2, ¶ 2.6.) (Emphasis added.) SAB also provides photographs of the tandem parking spaces in question marked as “EMPLOYEE PARKING” in white ink on the concrete and a “STAFF PARKING ONLY” sign above the wall. (Rivas Decl., ¶ 9, Exh. 4.)

This evidence carries SAB’s initial burden of proof to demonstrate that no triable issues of material fact exist as to a discriminatory act. The burden now shifts to Plaintiff to present evidence of any such triable issue of material fact. As noted before, Hale’s statements that he used the SAB’s parking lot and YWO’s tandem parking specifically, raise a triable issue of material fact as to whether the parking lot truly is only for employees or whether it is open to the public making it a place of public accommodation. If the parking lot is a place where the general public is invited to use, then Plaintiff’s inability to use that parking lot and tandem spaces may constitute an injury under Civil Code sections 51, 54, and 54.1.

Plaintiff additionally argues in his opposition that three additional violations demonstrate he has standing to bring this action. Specifically, he argues:

  1. The rear of the premises contains cracks over ¼ inch and contains uneven asphalt with noncompliant slope exceeding a 1/12 ratio in elevation;

  2. The rear door is blocked by automobiles and the fence creates a pathway narrower than 36 inches wide; and

  3. The front door entrance door exceeds the weight maximum of force to open.

As evidence, Plaintiff cites to his own answers to Special Interrogatories. (UMF, No. 14.) Code of Civil Procedure section 230.410 provides that a propounding party or any other party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party at the trial or at any other hearing in the action. A responding party may not use its own interrogatory responses in its own favor. (Great American Ins. Cos. V. Gordon Trucking, Inc., 165 Cal.App.4th 445, 450.) SAB’s objection to this evidence on that basis is sustained. This evidence is inadmissible.

5.  Lease Agreement

Without providing any supporting authority, Plaintiff argues in his reply that SAB has no privity of contract with the Lease Agreement SAB submits as evidence.

Civil Code section 1945 provides, “[i]f a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.” YWO has continued to pay, and SAB has continued to accept, monthly rent payments. (Supp. Rivas Decl., ¶ 4.)

Thus, Plaintiff’s argument that SAB has no privity of contract is unsupported.

Conclusion & Order

For the foregoing reasons, Defendant SAB Investment Property, LLC’s Motion for Summary Judgment or in the Alternative Summary Adjudication is DENIED.

Moving Party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.