Wilson v. Murillo

• Citation: 78 Cal. Rptr. 3d 214,163 Cal.App.4th 1124
• Decision Date: 10 June 2008
• Docket Number: No. A119121.,No. A118499.,A118499.,A119121.
• Court: California Court of Appeals
• Parties: RON WILSON, Plaintiff and Appellant, v. FRANCES MURILLO, Defendant and Respondent.

163 Cal.App.4th 1124

78 Cal. Rptr. 3d 214

RON WILSON, Plaintiff and Appellant, v. FRANCES MURILLO, Defendant and Respondent.

No. A118499.

No. A119121.

Court of Appeals of California, First District, Division Four.

June 10, 2008.

Thomas E. Frankovich and Jennifer L. Steneberg for Plaintiff and Appellant.

Fox Rothschild, David F. Faustman and Cristina K. Olivella for Defendant and Respondent.

OPINION

RUVOLO, P. J.

I. INTRODUCTION

Ron Wilson, a disabled person, brought this lawsuit against Frances Murillo, doing business as Murillo's Restaurant (Murillo), alleging he was refused service and subjected to ridicule and harassment at the restaurant in retaliation for his efforts to ensure that the restaurant was accessible for use by the disabled under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.¹). In granting summary judgment for Murillo, the trial court found Wilson had failed to establish a prima facie case of unlawful retaliation because the retaliatory action allegedly taken by Murillo against Wilson was too trivial to be judicially cognizable. In a postjudgment order the trial court awarded Murillo her attorney fees under Civil Code section 55.² We reverse, concluding that the record presents material issues of disputed fact which could support a finding that Murillo's conduct was unlawful under the governing standards of the ADA. Therefore, the summary judgment entered in her favor should have been denied.

II. FACTS AND PROCEDURAL HISTORY

In reviewing a grant of summary judgment, the law requires that the facts be reviewed in a light most favorable to the nonmoving party, in this case Wilson. Therefore, we must assume as true Wilson's version of all disputed facts presented in opposition to Murillo's motion. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [107 Cal.Rptr.2d 617, 23 P.3d 1143] (Saelzler); Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein); Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 757, fn. 1 .) With this standard in mind, the declarations, deposition transcripts, footage from a security camera, and other evidence disclose the following facts, viewed in a light most favorably to Wilson.

Murillo owns and operates a restaurant, "Murillo's Mexican Food," located in Vacaville. Wilson is a disabled person who primarily relies on a wheelchair for mobility. He is self-described as "an activist for disabled persons seeking to make places of public accommodations abide by State and Federal access codes ...."³ Wilson visited the restaurant over several years, but he was not a regular customer. Following each of his visits, he sent handwritten letters to Murillo identifying accessibility problems that he encountered. Murillo promptly responded to each of the letters.

Murillo ultimately spent in excess of $130,000 in bringing the restaurant into compliance with applicable law. Among other modifications, Murillo installed entrance ramps with detectable warning surfaces, Braille accessibility signage, a lowered bar section, accessible tables, automatic sensors for the faucets and paper towel dispensers in the men's and women's restrooms, and twice repaved and restriped concrete in the parking lot. She also installed three power-assisted doors at all public entrances to the restaurant. It is undisputed that at all pertinent times, the restaurant was fully compliant with all federal and state disability access regulations.

On March 11, 2005, Wilson went to the restaurant to have lunch with a friend who also uses a wheelchair. They arrived at the restaurant and instead of immediately asking for a table, stopped at the bar for a drink. They rolled up to the lower accessible section of the bar and when the bartender came, they ordered a soda and a beer and asked to see a menu.

The bartender brought their drinks, a basket of chips, salsa, and two menus. A few minutes later Murillo walked up to them. Murillo admitted in her deposition that she was angry when she saw Wilson at her restaurant. She testified that she went to them and said "`You guys are not welcome here, and you know that....' And they asked me why, and I said, `You're only here to harass me. You're not here for the food.'" In Wilson's declaration he recalls, "She asked us to leave, and we told her we would after we got our lunch and had finished eating it. Then she walked around to the back of the bar and as she came up to us again from the other side of the bar, she was holding up a sign which said, `We reserve the right to refuse service to anyone.'"⁴

Another few minutes passed, and Wilson and his companion stayed at the bar drinking their drinks and eating chips. Murillo came up to them again and asked them to leave. They refused. Eventually, the bartender removed their chips and salsa from the bar and tried to remove Wilson's beer.⁵ When asked why she was removing the chips and drinks, the bartender told Wilson that the owner, Murillo, had told her not to serve them. Wilson told her he was going to finish his drink, took hold of the bottle, poured the contents into his glass and gave her the empty bottle.

Murillo said she was calling the police to have them removed from the restaurant. In Murillo's deposition testimony she admitted she called the police "because they refused to leave [and] I just didn't want them in the premises period. I was upset."

At some point, Wilson and his companion were confronted by a man they believed to be an employee of the restaurant, who began taking photographs of them as they sat at the bar. While pointing his camera in their faces, this individual sarcastically told Wilson to "smile for the camera."

The police eventually came into the restaurant. In his deposition testimony, one of the responding police officers reported that when he arrived at the restaurant Murillo told him that she wanted two men in wheelchairs removed from her restaurant. Murillo explained to the officer that they "came in on a regular basis, took measurements; they were sending letters, demanding money and changes to the restaurant." The officers talked to Murillo and explained that there was no lawful reason they could make the two men leave. Wilson waited to see if the police officers were going to talk to them. They waited until the police left, and then they, too, left the restaurant.

When Wilson and his companion got to the parking lot they saw the police officers standing outside talking to each other. After obtaining the officers' names, they rolled over to their cars and were preparing to leave when the man who had taken the photographs inside the restaurant came out with a waitress. The waitress started taking photographs and taunting them just as the man had done inside the restaurant. At the same time, the man stood by the front door making an offensive gesture with his middle finger. Wilson and his companion eventually left the restaurant parking lot in separate vehicles.

On August 3, 2005, Wilson filed a complaint against Murillo seeking injunctive relief and damages for "retaliation" for "past activities in promoting the civil rights of persons with disabilities to have architectural barriers removed in places of public accommodation ...." Wilson alleged the following retaliatory acts: "[R]efusing to serve plaintiff RON WILSON at the bar, removing his food, demanding that plaintiff RON WILSON leave the restaurant, calling law enforcement to remove plaintiff from the premises at Murillo's Restaurant and the taking of photographs of plaintiff RON WILSON for no legitimate purpose ...." (Original capitalization.)

The complaint alleged a violation of the Unruh Civil Rights Act (Act) (Civ. Code, § 51 et seq.), which prohibits discrimination based on disability with respect to "accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever," and which incorporates the ADA, making ADA violations also violations of the Act (Civ. Code, § 51, subds. (b), (f)). The complaint also alleged a violation of California's Disabled Persons Act (Disabled Persons Act) (Civ. Code, § 54 et seq.). The Disabled Persons Act guarantees to persons with disabilities "the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, ... public facilities, and other public places." (Civ. Code, § 54, subd. (a).) Like the Act, the Disabled Persons Act incorporates the ADA. (Civ. Code, § 54, subd. (c).)

Murillo filed a motion for summary judgment. The gist of Murillo's motion was that the retaliatory acts alleged by Wilson were too trivial to constitute the adverse retaliatory action required to state a prima facie case of retaliation.⁶ Disputing the version of the incident presented by Wilson in opposition to the motion for summary judgment, Murillo argued that she "did have words with Wilson, but she did not refuse to serve Wilson and she did not eject him. After [Murillo's] brief conversation with Wilson, Wilson remained at the bar for approximately 26 minutes, finished his beer and chips, and then left the [r]estaurant on his own free will .... The evidence irrefutably demonstrates that Wilson did not suffer any actionable retaliation, and further did not suffer a `distinct and palpable injury.'"⁷ (Underscoring omitted.)

The trial court granted summary judgment, finding in a written opinion that "[i]f defendant or any of her employees had forcibly ejected Wilson from the premises, made physical threats against him, or called him disparaging names in front of the other patrons, such conduct could be actionable. Here, placing this event in context, all that is alleged is a mildly unpleasant incident, not rising to the level of necessary conduct for recovery under either statute." Appeal No. A118499 followed.

On the basis of the trial court's grant of summary judgment in Murillo's favor, she then filed...