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Albert Dytch v. Nereo Tovar

February 1, 2012

ALBERT DYTCH,
PLAINTIFF,
v.
NEREO TOVAR,
DEFENDANT.



The opinion of the court was delivered by: Edward M. Chen Judge

THOMAS N. STEWART, III - #88128 ATTORNEY AT LAW 369 BLUE OAK LANE, 2nd FLOOR CLAYTON, CA 94517 TELEPHONE (925) 672-8452 TELEFAX (925) 673-1729 E-MAIL t_stew_3@yahoo.com Attorneys for Albert Dytch

February 3, 2012 9:00 a.m.

Courtroom 5; 17th Floor

PLAINTIFF'S CASE MANAGEMENT STATEMENT ORDER RESETTING CMC

Plaintiff submits this Case Management Statement:

INTRODUCTION AND REQUEST FOR CONTINUANCE

This is an Americans with Disabilities case. Defendant is the owner of real property where Plaintiff patronized a restaurant and encountered barriers.

Defendant was served in June 2011. He called Plaintiff's counsel and spoke to him on September 6, 2011. In that conversation, he stated that he was trying to get the operator of the Restaurant to defend him. Since then, two lawyers have contacted Plaintiff's counsel on Defendant's behalf. However, neither of these lawyers has filed an appearance in this case.

On January 9, 2012, Plaintiff's counsel re-contacted both of these lawyers. They both stated that they don't represent him and don't know where he is.

So on January 26, 2012 the Proof of Service of the Summons and Complaint on the Defendant was filed. Subsequently on January 26, 2012, a Request to Enter Defendant's Default was filed. Plaintiff's counsel hopes that when Defendant receives a copy of the Request to Enter Default, he will decide to participate in this Action.

Mindful of the above, Plaintiff asks the Court to continue the Case Management Conference for 60 days. This will give the Defendant an opportunity to decide to participate in this Action. If Defendant does not react to receiving the Request to Enter Default by the end of February, then Plaintiff will begin preparation of a Motion for a Default Judgment, to be filed by March 25, 2012.

1. Jurisdiction and Service:

Jurisdiction: This Court has jurisdiction of this action pursuant to 28 USC § 1331 for violations of the Americans with Disabilities Act of 1990, 42 USC 12101 et seq. Pursuant to supplemental jurisdiction, attendant and related causes of action arising from the same facts are also brought under California law, including but not limited to violations of California Civil Code §§ 51, et seq. Venue: Venue is proper in this Court pursuant to 28 USC 1391(b) and is founded on the fact that the location where Plaintiff experienced discrimination is located in this district and that Plaintiff's causes of action arose in this district. No issues exist regarding personal jurisdiction.

The only defendant has been served.

2. Facts:

This is a disability access case brought pursuant to the ADA and California law.

Plaintiff alleges that he is disabled. Defendant owns the real property in Oakland where a Restaurant is operated. Plaintiff alleges that on May 6, 2010, he patronized the business and encountered barriers to the disabled. Plaintiff seeks an injunction, damages and attorneys' fees.

3. Legal Issues:

Whether the business has barriers which are readily achievable to remove; whether the business is in violation of ADAAG or California's Title 24 because of the date of original construction and alterations (if any); the nature and extent of any damages (if any) suffered by Plaintiff and; whether Plaintiff is ...


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