People ex rel. Deukmejian v. CHE, Inc.

• Decision Date: 23 December 1983
• Citation: 150 Cal.App.3d 123,197 Cal.Rptr. 484
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, ex rel. George DEUKMEJIAN, Attorney General, et al., Plaintiffs and Appellants, v. CHE INC., et al., Defendants and Respondents. Civ. 28008.

Page 484

197 Cal.Rptr. 484

150 Cal.App.3d 123

PEOPLE of the State of California, ex rel. George DEUKMEJIAN, Attorney General, et al., Plaintiffs and Appellants, v. CHE INC., et al., Defendants and Respondents.

Civ. 28008.

Court of Appeal, Fourth District, Division 1, California.

Dec. 23, 1983.

Hearing Denied Feb. 29, 1984.

John K. Van De Kamp, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Anne S. Pressman and Barbara M. Motz, Deputy Attys. Gen., for plaintiffs and appellants.

Hahn & Cazier, Julian A. Pollok, Los Angeles, Charles R. Revlett, City Atty., Warren B. Diven, Asst. City Atty., Oceanside, for defendants and respondents.

WORK, Associate Justice.

The People and the Director of the State Department of Rehabilitation (plaintiffs) appeal a summary judgment for CHE, Inc., doing business as the Chart House Restaurant, City of Oceanside and its Director of Building and Housing, Fritz Stagliano, on their complaint seeking to compel CHE to provide a legally sufficient access for the physically handicapped and to mandate the City and Stagliano to enforce compliance with legal requirements. Applicable statutory and regulatory schemes and the circumstances of this case show there are several remaining triable issues of fact. We reverse.

Factual and Procedural Background

In August 1976, CHE leased a parcel of unimproved waterfront property from the Oceanside Smallcraft Harbor District (District) upon which to build its "Chart House Restaurant." Configuration of the parcel and the District's retention of an easement for pedestrian access along the waterfront, required constructing a multi-story building, with the upper portion housing the dining and bar areas and cantilevered over the easement. The smaller first floor was used by restaurant personnel as a service area. Access to the dining and bar areas for able bodied patrons is provided through a west-facing, glass and wood door, into an attractive foyer decorated with plants and skylights, up a wood-paneled staircase at the top of which stands the maitre d'. When the restaurant first opened, the physically handicapped were restricted to entering through a north door entrance, neither designated nor decorated for patron access, which remained locked during business hours.

Shortly after the restaurant opened for business a handicapped person complained. On January 12, 1978, Stagliano received a letter from the Department of Rehabilitation (Department), stating the locked employee entrance was neither equivalent facilitation nor a primary entrance because it should remain unlocked during business hours, be appropriately designated to depict access, and the interior hallway should be decorated so as to be attractive and appealing to all patrons. By letter dated six days later, Department advised Stagliano: "Access via the locked employee entrance is not equivalent facilitation and is through a secondary entrance. Access shall be provided to the restaurant through the existing primary entrance (ASA 5.2.1) or through another primary entrance [italics added] that meets the requirements and specifications of the current California Access Laws and Standards."

Originally, when the restaurant obtained its temporary building permit, the building inspector directed it to request in writing approval for using the north door as the handicapped entrance. Its request was denied by Stagliano, who later ordered the restaurant to make modifications regarding signs, doors, and decoration to comply with state laws concerning access for the handicapped. Although CHE made modifications costing approximately $15,000, Stagliano refused to issue a permanent occupancy permit because CHE had not yet complied fully with the modifications it agreed to make to comply with handicap requirements outlined by the Attorney General's Office. The changes were not made. Stagliano issued the permanent occupancy permit because the Oceanside City Attorney determined CHE had complied with the purpose and intent of the laws requiring access for the handicapped to the Chart House Restaurant. CHE promptly reneged on its agreement with the Attorney General, stating it would not install a new elevator at the restaurant to provide a primary entrance for the handicapped. CHE has ignored the state's demand for compliance with applicable law and its agreement and now operates a restaurant the handicapped may not enter through the primary customer entrance. Instead they must enter through the north entrance, now decorated to some degree, requiring them, upon reaching the second story in the elevator, to tour the kitchen and scullery areas before reaching the diningroom and maitre d' station.

Defendants' moved for summary judgment, arguing alternatively the statutory and regulatory law were satisfied because cumulatively they only require public accommodations to provide some means of access to the facilities; the restaurant was exempt from the cited legal requirements pursuant to Health and Safety Code section 19956 ¹ because it was above the ground floor; or the restaurant was exempt under section 19957. ² The order granting summary judgment gives no clue whether the trial court accepted one or all of the three "alternate" grounds, and no statement of reasons was requested or supplied. Thus, we are compelled to analyze the total record to determine if any of the grounds support the summary judgment.

DEFINING THE PARTIES' RESPECTIVE CONTENTIONS

Preliminarily, we note the law governing summary judgment procedure pursuant to Code of Civil Procedure section 437c is firmly established.

" 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor [fn. omitted] and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of the affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' " (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953, quoting Stationers Corp. v. Dunn & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; Elam v. College Park Hospital, 132 Cal.App.3d 332, 347, 183 Cal.Rptr. 156.)

The primary issue is whether the trial court properly applied applicable statutory and regulatory law governing access for the physically handicapped to the relatively undisputed facts before it. Regarding quality of access, CHE asserts plaintiffs presented no admissible evidence raising a triable issue of fact. Alternatively, CHE argues quality of access is not an issue because Civil Code section 54.1 does not apply because it is a general statute governed by the specific provisions of sections 19955, et seq. dealing precisely with the issue of access and, in any event, it requires simply access to all persons, handicapped or not, and not identical access.

Plaintiffs grant section 19956 sets the legal standard for handicapped access. They claim this statute incorporates Government Code section 4450, et seq. Section 4450 states its purpose generally as to assure buildings are accessible to and useable by the physically handicapped. ³ Government Code section 4451 sets the specific standard of compliance with the ASA specifications until regulations are developed. ⁴ ASA specifications require at least one primary entrance be accessible to and useable by the physically handicapped.

CHE contends the legal standard requires only reasonable, not necessarily equal, access. On the other hand, plaintiffs urge useable access requires ingress and egress through a primary entrance, not merely through a "reasonable" access.

CHE also contends it is exempt under section 19956 because a reasonable portion of all facilities and accommodations normally sought and used by the public in its restaurant are accessible to and useable by the physically handicapped.

Alternatively, CHE claims it was properly granted an exception from the literal statutory requirements due to hardship pursuant to section 19957. Plaintiffs argue the former is inapplicable to the present circumstances and, not only does CHE not qualify for a statutory exemption, there is a triable issue of fact regarding whether such an exemption was ever granted.

STATUTORY SCHEME AND APPLICABLE RULES OF STATUTORY CONSTRUCTION

In 1968, the Legislature enacted two statutory schemes to avoid discriminating against the physically disabled. Government Code section 4450, et seq. is designed to guarantee access and use of all public buildings. Section 4450 directed the State Architect to adopt and submit proposed building standards for approval. During the interim, Government Code section 4451 required builders adhere to the American Standards Association specifications A117.1-1961. The Legislature created these temporary standards as "minimum requirements to insure that buildings, structures and related facilities covered by this chapter are accessible to, and functionable for, the physically handicapped to, through, and within their doors, without loss of function, space, or facility where the general public is concerned." (Gov.Code, § 4452, italics added.) ASA...