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BOEMIO v. LOVE'S RESTAURANT

January 30, 1997

RALPH BOEMIO, Plaintiff,
v.
LOVE'S RESTAURANT and DOES 1 through 10, inclusive, Defendants.



The opinion of the court was delivered by: BATTAGLIA

 This matter was called for trial on January 15, 1997 at 9:00 a.m. in Courtroom A of the above entitled court, the Honorable Anthony J. Battaglia, Magistrate Judge, presiding without a jury. Consent by the parties to trial by magistrate judge pursuant to 28 U.S.C. § 636(c) was filed. Plaintiff, Ralph Boemio, was represented by Amy Vandeveld, Esq. Defendant, Love's Restaurant, was represented by Robert Lowell, Esq. The issues tried in this matter are raised in the Complaint and Answer thereto, as well as the Stipulations of the parties resolving ADA compliance issues on the subject premises.

 Background

 This is an action based upon claims of discriminatory practices by a public accommodation, negligence and intentional infliction of emotional distress. The Court has original jurisdiction of this civil action pursuant to 28 U.S.C. § 1331, Federal Question jurisdiction, 28 U.S.C. § 1332, Diversity of Citizenship jurisdiction, and the Court's supplemental jurisdiction, 28 U.S.C. § 1367 (state law claims). Jurisdiction is also based on the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12111, 12181/1-184 and 12201, et seq. Venue is proper pursuant to 28 U.S.C. §§ 1391 (b) and (c).

 Prior to trial, the parties entered into a Stipulation concerning remediation of ADA compliance issues on the premises as well as stipulations resolving the issue of attorneys fees and costs for Plaintiff's counsel, and the damage claim of Plaintiff, Bernard Snyder. The issues at trial were whether Plaintiff could access the bathroom facilities at the premises, and if not, whether Plaintiff, Ralph Boemio, suffered actual damages therefrom, and the amount of those damages.

 Findings of Fact

 Having heard the oral testimony produced by parties, and the argument of counsel, and after reviewing the documentary evidence, the Court now makes the following findings based on the credible evidence and the reasonable inferences to be drawn therefrom. These findings are made based upon a preponderance of the credible evidence.

 1. On or about April 19, 1996, Defendant, Love's Restaurant, operated the restaurant facility at 967 Camino del Rio South, San Diego, California.

 2. On or about April 19, 1996, Defendant's restaurant was a public accommodation as contemplated by law and required to be accessible to physically handicapped persons.

 3. On or about April 19, 1996, Plaintiff, Ralph Boemio, was lawfully on the premises of Defendant's restaurant.

 4. Plaintiff, Ralph Boemio, is an otherwise qualified handicapped individual as provided in the relevant sections of the Americans with Disabilities Act, the California Health and Safety Code, and the California Unruh Civil Rights Acts, respectively.

 5. Plaintiff, Ralph Boemio, suffers from a medical condition which requires that he use a motorized wheelchair.

 6. On or about April 19, 1996, while on Defendant's premises, Plaintiff, Ralph Boemio, attempted to use the restroom facilities, but was unable to do so because ...


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