This case was last updated from Los Angeles County Superior Courts on 11/27/2021 at 03:57:29 (UTC).

RAFAEL ARROYO, JR. VS ROWLAND RANCH PROPERTIES LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Case Summary

On 09/10/2020 RAFAEL ARROYO, JR filed a Civil Right - Other Civil Right lawsuit against ROWLAND RANCH PROPERTIES LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7687

  • Filing Date:

    09/10/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

ARROYO RAFAEL JR.

Defendants

ROWLAND RANCH PROPERTIES LLC A CALIFORNIA LIMITED LIABILITY COMPANY

TAWA SUPERMARKET INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

HANDY RUSSELL

Defendant Attorneys

CHILLEEN MICHAEL J.

LEE ADRIENNE

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - Order Appointing Court Approved Reporter as Official Reporter Pro Tempore Michelle G. Cooper CSR #13572

11/18/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - Order Appointing Court Approved Reporter as Official Reporter Pro Tempore Michelle G. Cooper CSR #13572

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

11/18/2021: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 11/18/2021

11/18/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 11/18/2021

Reply (name extension) - Reply Brief in Support of Motion for Summary Judgment

11/12/2021: Reply (name extension) - Reply Brief in Support of Motion for Summary Judgment

Response (name extension) - Response to Defendants Statement of Uncontroverted Facts

11/12/2021: Response (name extension) - Response to Defendants Statement of Uncontroverted Facts

Request for Judicial Notice - Request for Judicial Notice

11/4/2021: Request for Judicial Notice - Request for Judicial Notice

Response (name extension) - Opposition Response in Opposition to Plaintiff's Separate Statement

11/4/2021: Response (name extension) - Opposition Response in Opposition to Plaintiff's Separate Statement

Memorandum (name extension) - Opposition Defendants' Opposition to Motion for Summary Judgment

11/4/2021: Memorandum (name extension) - Opposition Defendants' Opposition to Motion for Summary Judgment

Declaration (name extension) - Declaration Compendium of Declaration in Support of Opposition to MSJ

11/4/2021: Declaration (name extension) - Declaration Compendium of Declaration in Support of Opposition to MSJ

Notice of Appearance - Notice of Appearance

10/7/2021: Notice of Appearance - Notice of Appearance

Memorandum of Points & Authorities - Memorandum of Points & Authorities

9/2/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Notice (name extension) - Notice Plaintiffs Separate Statement of Facts in Support of Motion for Summary Judgment

9/2/2021: Notice (name extension) - Notice Plaintiffs Separate Statement of Facts in Support of Motion for Summary Judgment

Request for Judicial Notice - Request for Judicial Notice

9/2/2021: Request for Judicial Notice - Request for Judicial Notice

Motion for Summary Judgment - Motion for Summary Judgment

9/2/2021: Motion for Summary Judgment - Motion for Summary Judgment

Answer - Answer

11/23/2020: Answer - Answer

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/21/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/25/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Complaint - Complaint

9/10/2020: Complaint - Complaint

10 More Documents Available

 

Docket Entries

  • 09/14/2023
  • Hearing09/14/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 03/10/2022
  • Hearing03/10/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 11/19/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore Michelle G. Cooper CSR #13572; Filed by: RAFAEL ARROYO, Jr. (Plaintiff)

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  • 11/18/2021
  • DocketUpdated -- Order Appointing Court Approved Reporter as Official Reporter Pro Tempore Michelle G. Cooper CSR #13572: Status Date changed from 11/19/2021 to 11/18/2021; As To Parties: removed

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  • 11/18/2021
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 11/18/2021
  • DocketCertificate of Mailing for (Hearing on Motion for Summary Judgment) of 11/18/2021; Filed by: Clerk

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  • 11/18/2021
  • DocketHearing on Motion for Summary Judgment scheduled for 11/18/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 11/18/2021; Result Type to Held - Motion Denied

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  • 11/12/2021
  • DocketReply Brief in Support of Motion for Summary Judgment; Filed by: RAFAEL ARROYO, Jr. (Plaintiff)

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  • 11/12/2021
  • DocketResponse to Defendants Statement of Uncontroverted Facts; Filed by: RAFAEL ARROYO, Jr. (Plaintiff)

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  • 11/05/2021
  • DocketUpdated -- Memorandum Defendants' Opposition to Motion for Summary Judgment: Document changed from Opposition (name extension) to Memorandum (name extension); As To Parties: removed

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12 More Docket Entries
  • 09/25/2020
  • DocketProof of Service by Substituted Service; Filed by: RAFAEL ARROYO, Jr. (Plaintiff); As to: Rowland Ranch Properties LLC, a California Limited Liability Company (Defendant); Proof of Mailing Date: 09/22/2020; Service Cost: 30.00; Service Cost Waived: No

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  • 09/21/2020
  • DocketProof of Service by Substituted Service; Filed by: RAFAEL ARROYO, Jr. (Plaintiff); As to: Tawa Supermarket, Inc., a California Corporation (Defendant); Proof of Mailing Date: 09/18/2020; Service Cost: 60.00; Service Cost Waived: No

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  • 09/10/2020
  • DocketNon-Jury Trial scheduled for 03/10/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/10/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/14/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/10/2020
  • DocketComplaint; Filed by: RAFAEL ARROYO, Jr. (Plaintiff); As to: Rowland Ranch Properties LLC, a California Limited Liability Company (Defendant); Tawa Supermarket, Inc., a California Corporation (Defendant)

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  • 09/10/2020
  • DocketCivil Case Cover Sheet; Filed by: RAFAEL ARROYO, Jr. (Plaintiff); As to: Rowland Ranch Properties LLC, a California Limited Liability Company (Defendant); Tawa Supermarket, Inc., a California Corporation (Defendant)

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  • 09/10/2020
  • DocketSummons on Complaint; Issued and Filed by: RAFAEL ARROYO, Jr. (Plaintiff); As to: Rowland Ranch Properties LLC, a California Limited Liability Company (Defendant); Tawa Supermarket, Inc., a California Corporation (Defendant)

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  • 09/10/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/10/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 09/10/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

b"

Case Number: 20STLC07687 Hearing Date: November 18, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR SUMMARY JUDGMENT

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MOVING PARTY: Plaintiff\r\nRafael Arroyo, Jr.

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RESP. PARTY: Defendants Rowland Ranch Properties, LLC\r\nand Tawa Supermarket, Inc.

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MOTION FOR SUMMARY JUDGMENT

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(CCP § 437c)

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TENTATIVE RULING:

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Plaintiff Rafael Arroyo, Jr.’s Motion\r\nfor Summary Judgment is 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 March 23, 2020 [ ] Late [ ] None

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REPLY: Filed on\r\nAugust 13, 2020 [X] Late [ ] None

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ANALYSIS:

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I. \r\nBackground\r\n

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On September 10, 2020, Plaintiff Rafael Arroyo\r\n(“Plaintiff”) filed an action against Defendants Rowland Rach Properties, LLC\r\n(“Rowland”) and Tawa Supermarket, Inc. (“Tawa”) (collectively, “Defendants”)\r\nalleging violations of the Unruh Civil Rights Act. Defendants filed a joint\r\nAnswer on November 23, 2020.

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Plaintiff filed the instant Motion for Summary Judgment (the\r\n“Motion”) on September 2, 2021. Defendants filed an opposition on November 4\r\nand Plaintiff filed a reply brief on November 12.

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

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Plaintiff’s request for judicial notice of (1)\r\nPlaintiff’s complaint in Rafael Arroyo, Jr. v. Rowland Heights Ranch\r\nProperties, LLC, Case No. 2:2020-cv-05086 (the “Federal Action”), (2) order\r\nin the Federal Action declining to exercise supplemental jurisdiction, (3)\r\nPlaintiff’s Notice of Indication of Mootness filed in the Federal Action, and\r\n(4) order dismissing Plaintiff’s state claim as moot in the Federal Action is\r\nGRANTED. (Evid. Code, § 452, subd. (d).)

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However, Plaintiff’s request for judicial notice of (5)\r\nsearch results for Defendant Tawa’s seller’s permit and (6) search results for\r\na business license issued to Defendant Tawa on the basis that the website printouts\r\nare indisputable because the results were obtained from government websites is\r\nDENIED. (Joley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872,\r\n888 [concluding that there is no “official web site” provision for judicial\r\nnotice in California”].)

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Defendant’s request for judicial notice of (1) list of\r\nADA lawsuits filed by Plaintiff through a docket search is DENIED because it\r\ndoes not fall within any permissible category of judicial notice. However,\r\nDefendant’s request for judicial notice of (2) complaint filed by Plaintiff\r\nagainst YSM Investment No. 3 in Los Angeles Superior Court, Case No.\r\n20STLC07868, (3) complaint filed by Plaintiff against Tawa, Inc. and Rjan, LLC\r\nin San Bernardino Superior Court, Case No. CIVSB2025059, (4) complaint filed by\r\nPlaintiff against Tawa Supermarket, Inc. in U.S. District Court, Case No.\r\n5:20-cv-00619, and (5) complaint filed by Plaintiff against Defendant Tawa\r\nSupermarket, Inc., DK Euclid, LP and Euclid, LLC in Orange County Superior\r\nCourt, Case No. 30-2020-01150775-CL-CR-CJC is GRANTED. (Evid. Code, § 452,\r\nsubd. (d).)

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IV. \r\nDiscussion\r\n

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With this Motion, Plaintiff seeks a ruling (1) that Defendants\r\nviolated Plaintiff’s rights under Section 51(f) of the Unruh Civil Rights Act\r\nand (2) that Plaintiff is entitled to a statutory award of $4,000.00 under\r\nSection 55.56 of the Unruh Civil Rights Act. \r\n(Notice of Mot., pp. 1-2.)

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A. Unruh Civil Rights Act Violation

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“California’s Unruh Civil Rights Act\r\nprovides: ‘All persons within the jurisdiction of this state are free and equal\r\nand no matter what their….disability… are entitled to the full and\r\nequal accommodations, advantages, facilities, privileges, or services in\r\nall business establishments of every kind whatsoever. (Civ. Code, § 51, subd.\r\n(b).) A violation of any\r\nindividual right under the Federal Americans with Disabilities Act (“ADA”) is\r\nalso a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under\r\nthe ADA, “[n]o individual shall be discriminated against on the basis of\r\ndisability in the full and equal enjoyment of the goods, services, facilities,\r\nprivileges, advantages, or accommodations of any place of public accommodation\r\nby any person who owns, leases (or leases to), or operates a place of public\r\naccommodation.” (42 U.S.C. § 12182(a).) Under the ADA, a place of public\r\naccommodation expressly includes grocery stores or other sales establishments.\r\n(42 U.S.C. § 12181(7).)

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“A plaintiff can\r\nrecover under the Unruh Civil Rights Act on two alternate theories:\r\n(1) a violation of the ADA (§ 51, subd. (f)); or (2) denial of access to a\r\nbusiness establishment based on intentional discrimination. [Citations.]” (Martinez\r\nv. San Diego County Credit Union (2020) 50 Cal.App.5th 1048,\r\n1059.) (Emphasis added.)

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Under the ADA, discrimination includes “a failure to\r\nremove architectural barriers…, in existing facilities…, where such removal is\r\nreadily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)

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Statutory penalties are available for\r\nconstruction-related accessibility violations of the Unruh Act only if a patron is denied\r\nfull and equal access to the place of public accommodation on a particular\r\noccasion. (Cal. Civ. Code, § 55.56, subd. (a).) (Emphasis added.)

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Under the statute, a plaintiff is denied full and equal\r\naccess only if the\r\nplaintiff personally encounters the violation on a particular occasion or she\r\nor he is deterred from accessing a place of public accommodation on a\r\nparticular occasion. (Civ. Code, § 55.56 subd. (b).) “A violation personally\r\nencountered by a plaintiff may be sufficient to cause a denial of full and\r\nequal access if the plaintiff experienced difficulty, discomfort, or\r\nembarrassment because of the violation.” (Cal. Civ. Code, § 55.56, subd. (c).) Under\r\nthis theory, a plaintiff cannot recover statutory damages absent evidence that\r\nthe violation caused him difficulty, discomfort, or embarrassment. (Mundy v.\r\nPro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1, 6.)

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To demonstrate a plaintiff was deterred from accessing a\r\nplace of public accommodation, she or he must demonstrate both: “(1) [t]he\r\nplaintiff had actual knowledge of a violation or violations that prevented or\r\nreasonably dissuaded the plaintiff from accessing a place of public\r\naccommodation that the plaintiff intended to use on a particular occasion [and]\r\n(2) [t]he violation or violations would have actually denied the plaintiff full\r\nand equal access if the plaintiff had accessed the place of public\r\naccommodation on that particular occasion.” (Civ. Code, § 55.56, subd. (d).)

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Failure to remove a physical element of the property that\r\ndoes not meet the ADA Accessibility Guidelines for Buildings and Facilities\r\n(“ADAAG”) amounts to discrimination under the ADA. (42 U.S.C., § 12182, subd.\r\n(b)(2)(A)(iv).) Any barrier that does not meet the standards set forth in the\r\nADAAG is considered a barrier to access. (Skaff v. Rio Nido Roadhouse (2020)\r\n55 Cal.App.5th 522, 534.)

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Under the ADAAGs, “operable parts” must be placed within\r\none of the reach ranges specified in Section 308. (36 C.F.R. Pt. 1191, App. D,\r\n§ 309.3.) An “operable part” is defined as “[a] component of an element used to\r\ninsert or withdraw objects, or to activate, deactivate, or adjust the element.”\r\n(36 C.F.R. Pt. 1191, App. B, § 106.) An “element” is defined as “[a]n\r\narchitectural or mechanical component of a building, facility, space, or site.”\r\n(Id.) As to reach ranges, the AGAAGs provide that ranges cannot exceed a\r\nmaximum of 48 inches off the ground. (36 C.F.R. Part 1191, Appendix D, §§ 308.2,\r\n308.3.)

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In summary, the elements of a claim\r\nfor construction-related violation of the Unruh Act are that: (1) Plaintiff is\r\na qualified individual with a disability; (2) Defendant owned, leased, or\r\noperated a place of public accommodation; (3) the place of public accommodation\r\nwas in violation of one or more construction-related accessibility standards;\r\n(4) the violations denied Plaintiff full and equal access to the place of\r\npublic accommodation; and (5) the violations were personally encountered by\r\nPlaintiff or was deterred from accessing a place of public accommodation on a\r\nparticular occasion. (Cal. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises\r\n(2011) 192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168\r\nCal.App.4th 414.)

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Intentional\r\ndiscrimination, however, need not be proved to obtain damages under the Unruh\r\nCivil Rights Act when the plaintiff establishes a violation of the ADA. (Munson\r\nv. Del Taco, Inc., supra, 46 Cal.4th at p. 665.)

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B. Plaintiff’s Burden on Summary Judgment

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The following\r\nfacts are undisputed: (1) that Plaintiff is a paraplegic and uses a wheelchair\r\nfor mobility; (2) that Defendant Rowland currently owns, and did so in March\r\n2020, the property located at or about 1015 S. Nogales St., Rowland Heights\r\n(the “Property”), CA; (3) that the Store 99 Ranch Market (the “Store”) is\r\nlocated on the Property; (4) that Defendant Tawa operates the Store. (Def, Sep.\r\nStmt., Nos. 1-4.)

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As to the remaining elements, Plaintiff provides the\r\ndeclaration of Randall Marquis, an investigator hired by Plaintiff’s counsel,\r\nstating that on April 17, 2020, he visited the Store. (Mot., Marquis Decl., ¶¶\r\n1-3.) He states that the ticket dispenser in the seafood section was\r\n“approximately” 57 inches above the floor and that the ticket dispenser in the\r\nmeat section was “approximately” 63 inches above the floor. (Id. ¶¶\r\n4-5.) He also provides photographs taken on the date of his visit, but none of\r\nthose pictures show any measurements confirming his findings. (Id., Exh.\r\n6.)

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Plaintiff also presents his declaration stating that he\r\nvisited the Store on March 2, 2020 “to shop” and to assess the Store for\r\ncompliance laws and submits a copy of a receipt for that same date\r\ndemonstrating he purchased water and chocolates. (Mot., Arroyo Decl., ¶¶ 3-4,\r\nExh. 3.) He further states that, on the date of his visit, he approached the seafood\r\nsection and “saw there was a ticket dispenser” on top of a display case, which\r\nPlaintiff concluded was “too high for [him] to reach, making it difficult for\r\n[him] to get a ticket.” (Id. at ¶ 5.) Plaintiff also approached the meat\r\nsection, where he states he encountered a similar problem. (Id. at ¶ 6.) Specifically, Plaintiff states that he “could immediately\r\ntell the ticket dispensers were too high and would be difficult for [him] to\r\nreach.” (Id.) Plaintiff states that “[s]ince he could\r\ntell the ticket dispensers were too high, [he] was deterred from placing\r\norders.” (Id. at ¶ 7.) The declaration is also\r\naccompanied by photographs Plaintiff took on the day of his visit depicting two\r\ndifferent ticket dispensers mounted on what appear to be food display cases. (Id. at ¶ 8, Exh. 4.)

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As discussed above, a plaintiff is denied full and equal\r\naccess only if the\r\nplaintiff personally encounters the violation on a particular occasion or\r\nshe or he is deterred from accessing a place of public accommodation on a\r\nparticular occasion. (Civ. Code, § 55.56 subd. (b).) “A violation personally\r\nencountered by a plaintiff may be sufficient to cause a\r\ndenial of full and equal access if the plaintiff\r\nexperienced difficulty, discomfort, or embarrassment because of the violation.”\r\n(Cal. Civ. Code, § 55.56, subd. (c).) (Emphasis added.)

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Plaintiff’s declaration about the difficulty he\r\nexperienced is also too limited with few specific details. Plaintiff does not\r\nstate that he attempted to use the ticket dispensers and was unable to\r\ndue to their excessive height; rather, Plaintiff states that he “could tell the\r\ndispensers were too high”. (Mot., Arroyo Decl., ¶ 7.) Plaintiff provides no\r\nother details about his experience at the Store, other than him viewing the\r\ndispensers and taking pictures, that demonstrates Plaintiff experienced\r\ndifficulty. Even if Plaintiff had provided more detail, the Court has the\r\ndiscretion to deny summary judgment even when a declaration attesting to the subject's\r\nstate of mind has not been controverted. (Code Civ. Proc., § 437c, subd. (e).) Here,\r\nit is too difficult to determine whether and to what degree Plaintiff\r\nexperienced difficulty, discomfort, or embarrassment at the Store.

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Plaintiff also argues that he\r\nwas denied full and equal access because he “could tell the ticket dispensers\r\nwere too high” so he was “deterred from placing orders.” (Mot., Arroyo Decl., ¶\r\n7.) As previously discussed, to demonstrate a plaintiff was deterred, she or he must demonstrate\r\nboth: “(1) [t]he plaintiff had actual knowledge of a violation or violations\r\nthat prevented or reasonably dissuaded the plaintiff from accessing a place of\r\npublic accommodation that the plaintiff intended to use on a particular\r\noccasion [and] (2) [t]he violation or violations would have actually denied the\r\nplaintiff full and equal access if the plaintiff had accessed the place of\r\npublic accommodation on that particular occasion.” (Civ. Code, § 55.56, subd.\r\n(d).)

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Plaintiff’s declaration does not demonstrate he had actual\r\nknowledge of the violation. Although Plaintiff may be familiar with height\r\nrequirements for certain elements, he does not demonstrate that he actually\r\nmeasured the height of the ticket dispensers or that he took other steps to\r\nconfirm a violation existed.

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The Court finds Plaintiff has not carried his burden to\r\nshow no triable issue of material fact exists and thus is not entitled to\r\nsummary judgment.

\r\n\r\n

\r\n\r\n

As a final note, Plaintiff\r\nargues that, even if the Court finds disputed facts as to the difficulty\r\nPlaintiff experienced, the Court can and should find in Plaintiff’s favor because\r\nthe Court in Chapman v. Pier 1 Imports (9th Cir.\r\n2011) 631 F.3d 939, 947, stated that a violation of the ADAAGs impairs a\r\nplaintiff’s full and equal access, which constitutes discrimination under the\r\nADA. (Mot., pp. 10-11.) However, for construction-related accessibility claims,\r\nsuch as this one, Civil Code section 55.56, subdivision (b) sets forth that a plaintiff is denied full and equal\r\naccess only if the\r\nplaintiff personally encounters the violation on a particular occasion or she\r\nor he is deterred from accessing a place of public accommodation on a\r\nparticular occasion. (Civ. Code, § 55.56 subd. (b).) (Emphasis added.) A\r\npersonal encounter with a violation may be sufficient if the plaintiff\r\nexperienced difficulty, discomfort, or embarrassment. (Id.) This was\r\nalso discussed in Mundy v. Pro-Thro Enterprises, supra, 192 Cal.App.4th\r\nSupp. at p. 6. There, the court stated that, in considering whether a\r\nconstruction-related accessibility action plaintiff has met his burden of\r\nproof, the Court is entitled to consider whether the plaintiff offered any\r\nevidence showing that the alleged violation caused him difficulty, discomfort,\r\nor embarrassment. (Id.) Here, the Court concluded that Plaintiff’s\r\nevidence is insufficient to show the alleged violation caused him difficulty.

\r\n\r\n

\r\n\r\n

Accordingly, the Motion is DENIED.

\r\n\r\n

\r\n\r\n

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

\r\n\r\n

\r\n\r\n

For the foregoing reasons, Plaintiff\r\nRafael Arroyo, Jr.’s Motion for Summary Judgment is DENIED.

\r\n\r\n

\r\n\r\n

Moving party is ordered to give\r\nnotice.

\r\n\r\n

"
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