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Thomas Mundy v. Pro-Thro Enterprises

January 7, 2011

THOMAS MUNDY,
PLAINTIFF AND APPELLANT,
v.
PRO-THRO ENTERPRISES, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County.Trial Court No. 08C05314 Laura C. Ellision, Judge.

The opinion of the court was delivered by: Dymant, J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

Plaintiff and appellant Thomas Mundy, a disabled person, sought to recover damages from defendant and respondent Pro-Thro Enterprises for denying him full and equal access to its business location. Following a court trial, judgment was entered in favor of respondent. Appellant contends that he was entitled to a judgment as a matter of law and that the court abused its discretion in admitting various items of evidence. We find no basis for relief on appeal and affirm the judgment.

BACKGROUND

On December 22, 2008, appellant filed a complaint against respondent for a violation of the Disabled Persons Act (DPA).*fn1 The complaint alleged that appellant was confined to a wheelchair, that he patronized a car wash owned by respondent on October 9, 2008, and that when he visited the restroom at the location, he could not use the mirror because it was mounted too high. Appellant sought $1,000 in damages, attorney fees and costs.
On July 10, 2009, appellant filed an amended complaint that added a cause of action under the Unruh Civil Rights Act (Unruh Act),*fn2 based on the same underlying facts. In his prayer for relief, appellant sought $4,000 in damages, the statutory minimum under the Unruh Act. Thereafter, respondent filed an answer generally denying the allegations of the amended complaint.*fn3

A court trial was held on February 11, 2010. Appellant testified that he was confined to a wheelchair, that he visited respondent's car wash on October 9, 2008, and that the restroom mirror was mounted too high for him to use. The only reason appellant needed to use the restroom mirror was to check his appearance. However, there were other reflective surfaces at the location that he could have used for that purpose, including an exterior window and a sales display of rearview mirrors. He did not attempt to use one of these alternatives, nor did he notify respondent about the problem with the height of the restroom mirror on the day of the incident. Subsequently, a full-length mirror was installed in the restroom.

Appellant acknowledged that he routinely visits businesses looking for ADA violations, and has filed more than 300 lawsuits alleging such violations. At the time of trial, he was unemployed; however, in 2009, he earned over $100,000 from disability litigation. Appellant did not present any evidence showing that he suffered any actual injury, embarrassment, humiliation, or discomfort as result of the placement and size of respondent's restroom mirror.

After the court entered judgment for respondent, appellant filed a timely notice of appeal.

CONTENTIONS ON APPEAL

1. Appellant presented sufficient evidence to establish a violation of the Unruh Act and was therefore ...


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