Baskin v. Hughes Realty, Inc.

• Decision Date: 12 July 2018
• Docket Number: B278580
• Court: California Court of Appeals Court of Appeals
• Parties: Tamara BASKIN, Plaintiff and Appellant, v. HUGHES REALTY, INC., Defendant and Respondent.

25 Cal.App.5th 184

235 Cal.Rptr.3d 589

Tamara BASKIN, Plaintiff and Appellant,

v.HUGHES REALTY, INC., Defendant and Respondent.

B278580

Court of Appeal, Second District, Division 4, California.

Filed July 12, 2018

Metz & Harrison, Jeff A. Harrison, Los Angeles, and Sara Pezeshkpour, El Segundo, for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Gregory F. Hurley and Michael J. Chilleen, Costa Mesa, for Defendant and Respondent.

MANELLA, J.

In the underlying action for disability discrimination, appellant Tamara Baskin alleged that respondent Hughes Realty, Inc. (Hughes) violated the California Disabled Persons Act (DPA) ( Civ. Code, §§ 54 - 55.3.) by providing no designated and accessible path of travel for persons with disabilities within the parking lot of a grocery store.¹ Specifically, she alleged that under the DPA, the store was obliged to designate an accessible path of travel from the street to the store’s entrance that did not require wheelchair-bound patrons to travel behind parked vehicles. The trial court concluded that Baskin’s claim, as alleged in her first amended complaint, failed on the undisputed facts. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Baskin suffers from osteogenesis imperfecta, a bone disease that renders her unable to walk or stand independently, and requires her to use a wheelchair in order to be mobile. In June 2014, she initiated the underlying action against respondent Hughes, which operates a Ralphs grocery store near appellant’s apartment. Baskin’s original complaint asserted claims for injunctive relief and damages under the Unruh Civil Rights Act (Unruh Act) ( Civ. Code, §§ 51, 52 ) and other statutes, alleging that the store lacked a designated and accessible path of travel for persons with disabilities to the store’s entrance from the adjacent public street.

In September 2015, after learning that Hughes had created a designated path for persons with disabilities in the store’s parking lot, Baskin filed her first amended complaint (FAC), which contained claims for damages under the DPA and the Unruh Act relating to the period before Hughes established the path. The FAC alleged that on numerous occasions, the store’s lack of a designated path deterred Baskin from going to the store because she was obliged to travel through its parking lot along vehicular lanes and behind parked cars.

In October 2015, Baskin voluntarily dismissed her claim under the Unruh Act. Prior to trial on the remaining claim under the DPA, Hughes filed a motion in limine to exclude all evidence that it had not provided directional signs identifying the accessible path of travel, contending that the FAC alleged no such claim.

At Baskin’s request, the trial of her DPA claim was bifurcated. Following a bench trial on the issue of liability, the trial court ruled that the DPA claim failed, concluding that Hughes was not required to provide a marked path of travel that did not pass behind parked cars, and that the FAC pleaded no claim for inadequate signage. On August 16, 2016, judgment was entered in favor of Hughes and against Baskin. This appeal followed.

DISCUSSION

Baskin challenges the trial court’s determinations (1) that an accessible path of travel for persons with disabilities from a street to a store’s entrance may pass behind parked cars and (2) that the FAC pleaded no claim for inadequate signage. As explained below, we conclude that she has shown no reversible error.

A. Governing Principles

The DPA establishes protections for persons with disabilities. ( Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674, 94 Cal.Rptr.3d 685, 208 P.3d 623 ( Munson ).) The substantive protections pertinent here are set forth in sections 54 and 54.1. Subdivision (a) of section 54 imposes a broad prohibition against discrimination, stating: "Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places." Subdivision (a)(1) of section 54.1 further provides that "[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to ... facilities, ... including ... 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."

Under the remedial provisions of the DPA, disabled persons asserting a violation of sections 54 and 54.1 may obtain an award of damages and attorney fees. Subdivision (a) of section 53 provides that anyone who engages in such a violation "is liable for each offense for the actual damages and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ... and attorney’s fees as may be determined by the court in addition thereto ...."

Sections 54 and 54.1 do not, by themselves, require business owners to make structural modifications to their facilities. ( Californians for Disability Rights v. Mervyn’s LLC (2008) 165 Cal.App.4th 571, 587, 81 Cal.Rptr.3d 144 ( Californians for Disability Rights ); Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831, 844, 77 Cal.Rptr.3d 883, ( Coronado ), overruled on another ground in Munson , supra , 46 Cal.4th at p. 678, 94 Cal.Rptr.3d 685, 208 P.3d 623 ; Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 886, 891, 134 Cal.Rptr. 844 ( Marsh ).) Any such requirement, when applicable, arises from two separate sources, namely, the Americans with Disabilities Act of 1990 (ADA) ( 42 U.S.C. § 12101 et seq. ), and certain state statutes.

Sections 54 and 54.1 incorporate the ADA’s protections against discrimination. Each provision states: "A violation of the right of an individual under the [ADA] also constitutes a violation of this section." ( §§ 54, subd. (c), 54.1, subd. (d).) Because the ADA requires the modification of facilities to remove barriers to access whenever " ‘removal is readily achievable,’ " sections 54 and 54.1 incorporate that requirement with respect to barriers to access identified in the ADA regulations. ( Californians for Disability Rights , supra, at p. 589, 81 Cal.Rptr.3d 144, quoting Pickern v. Best Western Timber Cove Lodge Marina Resort (E.D.Cal. 2002) 194 F.Supp.2d 1128, 1131, fn. 4.)

Sections 54 and 54.1 also enforce compliance with disability-related state building standards when a building is constructed or altered. In order to give meaning to the DPA, the Legislature enacted a statutory scheme ( Gov. Code, § 4450 et seq. ; Health & Saf. Code, § 19955 et seq. ) providing for the establishment of building standards designed to ensure accessibility by the handicapped. ( Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520-521, 74 Cal.Rptr.2d 684 ( Hankins ); People ex rel. Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 133, 197 Cal.Rptr. 484 ( CHE ).)

Under the statutory scheme, buildings are subject to the standards set forth in Title 24 of the California regulatory code, known as the California Building Standards Code (CBSC). ( Californians for Disability Rights , supra, 165 Cal.App.4th at p. 585, 81 Cal.Rptr.3d 144 ; Berkeley Center for Independent Living v. Coyle (1996) 42 Cal.App.4th 874, 876, fn. 2, 50 Cal.Rptr.2d 39 ; Health & Saf. Code, § 18938.3 ; Gov. Code, § 4451, subd. (c) ). The standards are developed by the Division of the State Architect (State Architect) and approved by the California Building Standards Commission. ( Gov. Code, § 4450, subd. (b) ; Health & Saf. Code, § 19955, subd. (a) ; see Arnold v. United Artists Theatre Circuit, Inc. (N.D. Cal 1994) 866 F.Supp. 433, 436 ; Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004) 124 Cal.App.4th 1390, 1398, 22 Cal.Rptr.3d 393 ( Plastic Pipe & Fittings Assn . ).) The State Architect and the California Building Standards Commission are obliged to promulgate the CBSC standards in compliance with the Administrative Procedure Act (APA) ( Gov. Code, § 11340 et seq. ), after consultation with specified parties. ( Gov. Code, § 4450, subd. (b) ; Health & Saf. Code, § 18935, subd. (a).) Generally, the standards are revised and republished every three years. ( Health & Saf. Code, § 18942, subd. (a).)

By statute, the CBSC standards relating to access for disabled persons may not be less stringent than the corresponding ADA standards. ( Gov. Code, § 4450, subd. (c).) Although noncompliance with the CBSC standards is actionable under the DPA, the CBSC generally requires compliance with a standard enacted after a building has constructed only when the building is altered. ( Californians for Disability Rights , supra, 165 Cal.App.4th at p. 586, 81 Cal.Rptr.3d 144.)

B. Underlying Proceedings

1. FAC

The FAC alleged that when Baskin visited the Ralphs store by bus or wheeling herself, she encountered significant barriers. According to the FAC, because the store lacked a "designated, accessible path of travel" from the street to the store, gaining access to the store was difficult and dangerous for her. Baskin was required "to wheel herself up the vehicular drive aisle, among moving cars that [were] trying to get into and out of the busy parking lot, and then to wheel herself behind parked cars to the store entrance." The FAC alleged that between April 2013 and March 2015, on more than twenty occasions, the lack of a designated and accessible path deterred Baskin from patronizing the store.

2. Pretrial Proceedings

Trial on Baskin’s DPA claim was set for June 13, 2016. On May 19, 2016, Baskin sought bifurcation of trial with respect to the issues of liability and damages. She requested that the court resolve certain issues of law relating to liability prior to a jury...