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Armando Rodriguez v. Barrita

June 18, 2012

ARMANDO RODRIGUEZ,
PLAINTIFF,
v.
BARRITA, INC., DBA LA VICTORIA TAQUERIA; NICANDRO BARRITA; ENS ASSOCIATES INVESTMENTS, LLC; MASOUD SHAHIDI;
NICANDRO BARRITA; AND DOES 1 THROUGH 10, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION

I. INTRODUCTION

Plaintiff Armando Rodriguez moves for reconsideration of this Court's order denying 19 summary judgment, pursuant to Civil Local Rule 7-9. Specifically, he requests reconsideration of: 20

(1) the factual finding that the second floor of the building in question is closed to the public; and 21

(2) the holding that factual disputes as to the validity of hardship exceptions granted to defendants 22 and their predecessors-in-interest by the City of San Jose precluded summary judgment on 23 plaintiff's California Disabled Persons Act (CDPA) claim. The motion is suitable for resolution 24 without a hearing, pursuant to Civil Local Rule 7-1(b), and for the reasons stated below, is granted 25 in part and denied in part. 26

II. DISCUSSION

A. Legal standard

Civil Local Rule 7-9 permits a party to move for reconsideration of any interlocutory order upon receiving leave from the Court. Under the Rule, to bring such a motion, the moving party must show: (1) "[t]hat at the time of the motion for leave, a material difference in fact or law exists 2 from that which was presented to the Court before entry of the interlocutory order for which 3 reconsideration is sought"; (2) "[t]he emergence of new material facts or a change of law occurring 4 after the time of such order"; or (3) "[a] manifest failure by the Court to consider material facts or 5 dispositive legal arguments which were presented to the Court before such interlocutory order." 6

Civ. L. R. 7-9(b). A party who repeats written or oral arguments in support or opposition to the 7 interlocutory order subject to reconsideration may be exposed to sanctions. Civ. L. R. 7-9(c). The Court granted plaintiff leave to move for reconsideration, and permitted defendants to file a 9 response to the motion, which they have. 10

Plaintiff first contends the Court erred by finding, "[t]he second floor which is not open to the public, consists of office space and a private dining room." (Order at 2:25-26). Rodriguez notes 13 that his opposition to defendants' cross-motion for summary judgment stated, "[defendant] Nicandro [Barrita] testified extensively in deposition that the second floor of the restaurant is all 15 storage, although actually it is a fully-decorated dining room." (Pl.'s Opp'n at 5:14-15). For 16 support, Rodriguez's brief relied upon two declarations -- one from a private investigator hired by 17 plaintiff, and another from his designated architectural expert, apparently acting as a percipient 18 witness -- as well as accompanying exhibits. Both declarants offer sworn statements that they 19 visited the second floor, and observed booths and decorations. (Heriot Decl. in Supp. of Pl.'s Opp'n ¶ 6); (Adler Decl. in Supp. of Pl.'s Opp'n ¶ 18). The videos submitted as exhibits in support of 21 those declarations appear to substantiate plaintiff's position. As Rodriguez's own opposition notes, 22 however, defendants have offered conflicting evidence in the form of deposition testimony. 23

Accordingly, the Court withdraws its factual finding, and instead holds that whether or not the 24 second floor is open to the public is a disputed question of material fact. 25

Plaintiff next argues the Court erred by denying summary judgment as to whether or not the 1986 and 2007 hardship exceptions issued to defendants and their predecessors-in-interest by the

B. Second floor

C. Equivalent ...


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