Treter v. Plaza Bonita, L.P.

• Decision Date: 06 February 2014
• Docket Number: D062732
• Court: California Court of Appeals Court of Appeals
• Parties: JOSEPH TRETER, Plaintiff and Appellant, v. PLAZA BONITA, L.P., Defendant and Respondent.

JOSEPH TRETER, Plaintiff and Appellant, v. PLAZA BONITA, L.P., Defendant and Respondent.

D062732

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Filed: February 6, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2011-00074753-CU-CR-SC)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Reversed.

Mataele Law Offices, Isileli Topou Manaia Mataele for Plaintiff and Appellant.

Katten Muchin Rosenman, LLP, Holly Michele Parker and Stacey Knight for Defendants and Respondents.

I.INTRODUCTION

Plaintiff Joseph Treter appeals from a judgment entered in favor of defendant Plaza Bonita, L.P. (Plaza Bonita).¹ Treter, who is disabled, was an employee of a retail store in a mall owned and operated by Plaza Bonita. Treter brought an action against Plaza Bonita alleging that Plaza Bonita violated the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.) by denying him access to full and equal accommodations at the mall, in multiple ways. For example, Treter alleged that the mall had forced him to park in a distant employee lot during the busy holiday season as a result of its employee holiday parking policy. Treter also alleged that the mall contained a variety of access barriers, including an insufficient number of handicapped-accessible parking spaces, handicapped-accessible spaces that did not have proper corresponding access aisles, and access aisles that were directed to routes without curb cuts or ramps. Treter further alleged that the mall's policy of locking its automated sliding doors when the mall closed for the day constituted a barrier to his access. Plaza Bonita moved for summary judgment. The trial court determined that Plaza Bonita was entitled to judgment as a matter of law.

On appeal, Treter challenges the trial court's determination, as well as some of the evidentiary rulings on which the court's summary judgment ruling was based. Weconclude that with respect to Treter's allegations that Plaza Bonita violated the Unruh Act by failing to make the mall accessible because its parking lot did not comply with the requirements of the Act, Plaza Bonita is not entitled to judgment as a matter of law. Plaza Bonita presented no evidence as to the state of its parking lot, or specifically, its handicapped-accessible parking spaces, during the time period covered by Treter's complaint. Rather, the evidence that Plaza Bonita submitted described the state of the mall's parking lots approximately two years after the time that Treter alleges he suffered discrimination. There thus remains a triable issue of fact as to whether the parking lots suffered from the defects that Treter alleges in his complaint during the relevant time period. However, as to Treter's other factual theories for recovery under the Unruh Act, Plaza Bonita has established that there are no triable issues of material fact as to those theories, and that Treter cannot prevail on any of those factual theories, as a matter of law.

Because there remain factual issues in dispute with respect to one of Treter's theories for recovery pursuant to his single cause of action alleging violations of the Unruh Act, Plaza Bonita is not entitled to summary judgment. For this reason, we reverse the judgment of the trial court.

II.FACTUAL AND PROCEDURAL BACKGROUND

From October 2009 until March 2010, Treter worked as a store manager at Magic Bug, a retail store located in defendant Plaza Bonita's Westfield Plaza Bonita Mall (theMall). Treter alleges, and the Mall appears to concede, that Treter is a " 'person with physical disabilities' as defined by all applicable California and United States laws."

On December 2, 2009, Treter went to the Mall and attempted to park in a parking lot closest to his store. Treter elected to park in a non-handicapped accessible space in the parking lot even though a handicapped-accessible space was available at the time. A security guard for the Mall asked Treter whether he was a Mall employee. When Treter said that he was, the security guard told Treter that he would "have to park in the handicap [space]—or . . . park in the employee parking lot." Treter moved his car to a handicapped-accessible parking space without further problem.

Treter's father called the Mall's administrative office to clarify the holiday parking policy as it applied to disabled employees. The trial court excluded as hearsay what a Mall employee allegedly told Treter's father about the Mall's policy regarding disabled employee holiday parking.

According to Treter's declaration and his deposition testimony, after December 2, 2009, on days when there was no handicapped-accessible parking space available, he would "park in the employee parking lot" in order to not "get ticketed or towed." This occurred between 10 and 15 times during the holiday season that year.

On January 14, 2011, Treter filed a complaint against Plaza Bonita.² In his complaint, Treter alleged a single cause of action for "Denial of Access to Full and Equal Accommodations, Advantages, Facilities, Privileges and/or Services in Violation ofCalifornia Civil Code § 51 et seq. (the Unruh Civil Rights Act)." In this cause of action, Treter alleged a number of independent acts or omissions that could support his claim that the defendant violated the Unruh Act. Specifically, Treter alleged (1) that the Mall had forced him to park in the employee lot; (2) that the Mall contained a variety of access barriers, including having an insufficient number of handicapped-accessible parking spaces, having handicapped-accessible spaces that did not have corresponding access aisles, and having access aisles that were directed to routes without curb cuts or ramps; and (3) that he was denied full and equal accommodations because he suffered "hardships" due to the Mall's policy of locking its automated sliding doors upon the closing of the Mall at night.

Plaza Bonita filed a motion for summary judgment in response to Treter's complaint. In support of its motion, Plaza Bonita submitted the declaration of Sherry Jones, general manager of the Mall, and the declaration of Karen Haney, an expert on compliance with the Americans with Disabilities Act (ADA).

Jones's declaration identified the Mall's employee holiday parking policy, which specifically exempts handicapped employees from its terms. Jones also verified that for safety reasons the Mall's policy was to lock all automatic doors while the Mall was closed. However, manual doors remained unlocked from the inside, allowing patrons and employees to safely exit the Mall after closing.

In her declaration, Haney attested that none of the architectural barriers identified in Treter's complaint actually existed at the Mall at the time she surveyed the property. For example, Haney explained that all of the handicapped-accessible spaces containedaccess aisles, that the access aisles lead to accessible entrances to the mall, and that wherever these accessible routes cross a curb, there is a "curb ramp or flush transition." Haney also concluded that the manual doors located adjacent to the automatic doors were compliant with ADA design standards.

Treter opposed Plaza Bonita's motion for summary judgment, arguing that there were triable issues of fact regarding: (1) whether the exemption to the employee parking policy applied to him; (2) whether the access aisles at the Mall comply with ADA design standards; and (3) whether the manual doors at the Mall's entrance/exits complied with ADA design standards.³

In support of his opposition to Plaza Bonita's summary judgment motion, Treter attempted to submit evidence in the form of an expert's "report" regarding accessibility at the Mall. This "report" was attached as an exhibit to a declaration submitted by Treter's attorney. Plaza Bonita objected to much of the evidence that Treter offered.

The trial court sustained a number of Plaza Bonita's evidentiary objections and ultimately granted its motion for summary judgment in full. The court concluded that the Mall had a written holiday employee parking policy that exempted employees with disabilities from its coverage, and that even if the court were to consider the excluded statement of the security guard who, Treter alleged, had said something different, this would not place in dispute whether the Mall employee holiday parking policy was discriminatory. The court also concluded that the Mall's policy of locking the automateddoors at closing did not violate the ADA because the adjacent manual doors provided a reasonable alternative point of exit from the Mall. Finally, the court concluded that the Mall's expert's declaration and supporting exhibits established that the access aisle problems identified in Treter's complaint did not exist.

The trial court entered judgment in favor of Plaza Bonita. Treter filed a timely notice of appeal.

III.DISCUSSION

A. Legal standards

1. Summary judgment

A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [" 'A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' [Citation.]"]) A defendant may make this showing by establishing that the plaintiff cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)

In reviewing a trial court's ruling on...