Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark Mooney, Judge. Los Angeles County Super. Ct. No. BC385244.
Law Offices of Morse Mehrban, Morse Mehrban and Dayton Magallanes for Plaintiff and and Appellant.
Plotkin, Marutani & Kaufman and Warren W. Kaufman for Defendants and Respondents.
DOI TODD, J.
Plaintiff and appellant Jose Estrada appeals from a judgment entered in favor of defendants and respondents Mary Makris in her capacity as Trustee of the Makris Family Trust and Hui Mi Inc. (sometimes collectively defendants) following the trial court’s grant of summary judgment. Appellant, who alleged he was wheelchair-bound, further alleged that he had patronized a restroom at defendants’ restaurant which lacked grab bars and had a towel dispenser mounted too high. Defendants moved for summary judgment on the ground that the restroom facility was in compliance with applicable law. We affirm. Defendants met their burden to establish the absence of an element of appellant’s case, and appellant offered no evidence in opposition to the motion. Appellant’s reliance on his complaint, alone, failed to create a triable issue of fact.
FACTUAL AND PROCEDURAL BACKGROUND
A building located at 9856 Atlantic Boulevard in South Gate housed a small restaurant. Construction of the building was completed in 1971. In 1996, husband and wife Evangelos and Mary Makris and their son Theodore Makris purchased the building; they transferred their ownership to the Makris Family Trust in 1999. The restaurant was managed by husband and wife Hui Tae Kim and Mi Kim through their corporation, Hui Mi Inc. One unisex restroom was available for restaurant patrons. The restroom was accessible from the parking lot and required patrons to obtain a key from a restaurant employee.
In February 2008, appellant filed a complaint against defendants, seeking damages for defendants’ alleged violations of Civil Code sections 54 and 54.1. Appellant alleged that he was confined to a wheelchair and approximately 40 times during the preceding year had patronized the restaurant owned and operated by defendants. According to appellant: “(6) During said visits to the facility while wheelchair-bound, Plaintiff has been unable to use the facility’s toilet because it failed to provide him with grab (support) bars and unable to use the paper towel dispenser because it was mounted too far above the floor. [¶] (7) Removing these architectural barriers would have been readily achievable (easily accomplishable and able to be carried out without much difficulty or expense).” Defendants answered separately, generally denying the allegations and asserting several affirmative defenses.
Defendants jointly moved for summary judgment on the ground that the building complied with all applicable laws when built in 1971 and there had been no changes to the building since that time which would have triggered a requirement to make the accommodations sought by appellant. In support of their motion, they submitted the declaration of architect Francis Hoffman, who stated he was familiar with the building accessibility requirements mandated by federal, state and local government. He inspected the restaurant and reviewed the City of South Gate’s records relating to the restaurant, including those concerning building permit applications and approvals and inspections. He learned that the building passed its final inspection in January 1972, which necessarily meant it complied with all building requirements at the time. In 1972, privately funded facilities open to the public, such as a restaurant, were not required to implement accommodations for disabled persons. In 1975, the City of South Gate issued a building permit for the addition of an enclosed glass patio. Hoffman opined that this alteration would not have triggered any requirement to make accommodations for persons with disabilities, as such a requirement did not go into effect in California until many years later. Another permit for electrical and plumbing work was issued in 1999, but the permit expired without the work having been done. In conclusion, Hoffman opined that the building was in compliance with all applicable laws.
Defendants also submitted the declaration of Theodore Makris, who stated that he was unaware of any complaints concerning the restaurant’s restroom facilities, but added that he installed grab bars and lowered the towel dispenser after receiving appellant’s complaint. Restaurant manager Hui Tae Kim similarly declared he was unaware of any complaints concerning the restroom; he also confirmed the postcomplaint restroom modifications as well as the addition of two handicapped parking spaces in the restaurant parking lot.
Appellant did not dispute any of the facts in defendants’ separate statement of undisputed facts. Appellant opposed the motion on the ground that defendants’ compliance with local building codes was irrelevant, as his complaint alleged a violation of Civil Code sections 54, subdivision (c) and 54.1, subdivision (d) on the basis of defendants’ violation of the Americans with Disabilities Act in failing “to remove architectural barriers... in existing facilities... where such removal is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)
Following a September 2008 hearing, the trial court issued a statement of decision granting summary judgment. It found that defendants met their burden to show the building was in compliance with the applicable statutes and “[p]laintiff offered no evidence that the building was ever not in compliance, and also offered no evidence to substantiate his claim that the alleged height of the paper rack or the alleged lack of grab bars are ‘barriers,’ that, as a matter of law, constitute a violation of Civil Code Sections 54 or 54.1.” The trial court further ruled that because defendants met their threshold burden, appellant could not rely on his pleadings alone to establish the existence of a triable issue of material fact. Because appellant failed to produce any evidence rebutting defendants’ showing that there was no violation of Civil Code sections 54 or 54.1, the trial concluded that summary judgment was warranted.
Judgment was entered in November 2008 and this appeal followed.
DISCUSSION
Appellant contends the trial court erred in granting summary judgment, asserting that he was not required to produce any evidence demonstrating a triable issue of material fact because defendants failed to meet their threshold burden to establish the absence of a triable issue. We disagree. We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843–857.) The general rule is that summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....” (Code Civ. Proc., § 437c, subd. (c).) We consider “‘all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) “In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) If there is no triable issue of material fact, “we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)
Turning first to the issues framed by the pleadings, appellant alleged that he was confined to a wheelchair, that he had visited defendants’ restaurant on numerous occasions in 2007, and that he was unable to use the restaurant’s restroom because it lacked grab bars and could not reach the towel dispenser because it was too high. He characterized these issues as architectural barriers for which removal was readily achievable and sought damages for defendants’ alleged violation of Civil Code sections 54 and 54.1.
Unless otherwise indicated, all further statutory references are to the Civil Code.
Commonly referred to as the Disabled Persons Act (DPA), sections 54 through 55.2 are intended to secure to disabled persons full and equal access to public facilities. (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261.) “Section 54, subdivision (a), declares that ‘Individuals with disabilities... 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.’ Section 54.1, subdivision (a)(1), states in similar fashion that ‘[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities... hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law... and applicable alike to all persons.’” (Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831, 842–843, overruled on another point in Munson v. DelTaco (2009) 46 Cal.4th 661, 678.)
“California mandates specific requirements for building accessibility by statute. [Citations.] ‘All buildings constructed or altered after July 1, 1970, must comply with standards governing the physical accessibility of public accommodations. [Citation.] From December 31, 1981 until the present, the standards have been set forth in Title 24 of the California regulatory code [Cal.Code Regs., tit. 24].’ [Citations.] A violation of a California Code of Regulations title 24 (title 24) building standard that denies access to a disabled individual has been found to constitute a violation of... the DPA. [Citations.]” (Californians for Disability Rights v. Mervyn’s LLC (2008) 165 Cal.App.4th 571, 585–586 (Mervyn’s).)
Sections 54 and 54.1 were amended in 1996 to add: “A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101–336) [ADA] also constitutes a violation of this section....” (§§ 54, subd. (c) & 54.1, subd. d); see Stats.1996, c. 498, §§ 1 & 1.5; Mervyn’s, supra, 165 Cal.App.4th at p. 586.) “The ADA defines discrimination in a place of public accommodation to include ‘a failure to remove architectural barriers... in existing facilities... where such removal is readily achievable....’ (42 U.S.C. § 12182(b)(2)(A)(iv).) The term ‘readily achievable’ means ‘easily accomplishable and able to be carried out without much difficulty or expense.’ (42 U.S.C. § 12181(9).)” (Coronado v. Cobblestone Village Community Rentals, L.P., supra, 163 Cal.App.4th at p. 848.) A “public accommodation” includes a restaurant. (42 U.S.C. § 12181(7)(B).) “Installing grab bars in toilet stalls” and “[r]epositioning the paper towel dispenser in a bathroom” are examples of readily achievable steps to remove barriers. (28 C.F.R. § 36.304(b)(12) & (17).)
The Mervyn’s court explained the distinction between building code violations and ADA violations under the DPA: “The expansion of California law to include ADA violations had other effects. For example, title 24 does not require facilities that predate its enactment to comply with its regulations unless and until the facility is altered. [Citation.] In contrast, ‘[t]he ADA requires existing facilities to remove barriers to access so long as removal is readily achievable, regardless of whether the facility has been altered.’ [Citation.] By amending the Civil Code to provide that a violation of the ADA is also a violation of the.... the DPA, the Legislature authorized the filing of civil actions under state law to enforce the federal requirement that architectural barriers be removed where it is readily achievable to do so, and that alternative means of access be provided where physical access is not readily achievable.” (Mervyn’s, supra, 165 Cal.App.4th at p. 586.)
To support their summary judgment motion, defendants relied on Hoffman’s opinion that the building was in compliance with state law accessibility standards because it had not been altered since initial construction. Hoffman did not address the question of whether the building contained architectural barriers and whether removal of those barriers was readily achievable. But, as the trial court acknowledged, Hoffman’s failure to discuss the existence of architectural barriers essentially constituted evidence of the absence of those barriers. To sustain its threshold burden on summary judgment, “a moving defendant need not support his motion with affirmative evidence negating an essential element of the responding party’s case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.) Hoffman’s declaration stated that he visited and inspected the building and its restroom. He observed neither the existence nor absence of grab bars, nor did he identify the existence or height of any towel dispenser. But the existence of an architectural barrier was an essential element of appellant’s case. (See Mervyn’s, supra, 165 Cal.App.4th at p. 592 [to establish discrimination under the ADA, plaintiff has the initial burden to introduce evidence that removal of an architectural barrier is readily achievable].)
Information about subsequent modifications to the restroom contained in defendants’ declarations was not included as part of defendants’ separate statement of undisputed facts. We adhere to the “Golden Rule” of summary judgment—if a fact is not set forth in the separate statement, it does not exist. (E.g., Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 929.)
Because defendants were able to establish the absence of an element supporting appellant’s case, the burden shifted to appellant to present evidence showing a triable issue of material fact. (Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 482.) Instead of offering evidence tending to show the existence of architectural barriers and the achievability of removing them, appellant submitted nothing. As explained in Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163: “The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues. Thus, where the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. [Citations.]” In turn, “[t]he plaintiff opposing a motion for summary judgment may not rely on his or her pleadings alone, but must file opposition to the motion, with affidavits setting forth specific facts demonstrating that a triable issue of material fact exists as to the cause of action or defense. [Citations.]” (Id. at p. 162; accord, Peart v. Ferro (2004) 119 Cal.App.4th 60, 69; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.) The only “specific facts” showing the existence of any architectural barriers were contained in appellant’s complaint. Appellant’s alleging the existence of architectural barriers and that their removal was readily achievable was insufficient to demonstrate a triable issue of material fact.
Summary judgment was properly granted on the ground there was no triable issue of fact concerning defendants’ compliance with section 54 or 54.1.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur:BOREN, P. J., ASHMANN-GERST, J.