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Armando Rodriguez v. Barrita


June 18, 2012


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



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


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 facilitation

City of San Jose were valid. Specifically, he maintains that the Court failed to consider his argument that the City failed to require, and defendants did not provide, "equivalent facilitation" as 2 a condition of the exceptions. See Cal. Health & Safety Code § 19957. The only reference to that 3 term appears in the final sentence of footnote 73 in plaintiff's motion for summary judgment. The 4 sentence reads: "Finally, neither 'hardship exception' provided equivalent facilitation as required 5 under state law." (Pl.'s Mot. for Summ. J. at 23-24 n. 73) (citing § 19957). A supporting 6 declaration from plaintiff's architectural expert, cited in that same footnote, asserts, without any 7 explanation, that no equivalent facilitation was provided. (Adler Decl. in Supp. of Mot. for Summ. 8 J. ¶ 30). Plaintiff also relied upon deposition testimony, in which defendant Marcelino Barrita read 9 back portions of the hardship exception documentation stating that no "equivalent facilitation" was 10 required by the City, and conceded that Barrita, Inc. did not "install grab bars, lower the mirror, tissue dispenser, change toilet bowl, lower soap and towel dispenser, install handicap table," in the building's bathroom. (Exh. 4 to McGuiness Decl. at 94:3-97:12).

14 or identify any relevant precedent construing the relevant provision of California Code.*fn1 Although Rodriguez now attempts to rectify this oversight by briefing the issue extensively in his motion for 16 reconsideration, his efforts are untimely. Plaintiff may be correct that defendants bear the ultimate 17 burden of establishing an exception to their statutory duties under the CDPA, but under Rule 56 of 18 the Federal Rules of Civil Procedure, he must demonstrate an entitlement to summary adjudication. 19

Having failed to brief adequately the issue in his original motion, plaintiff now alternatively 21 argues that the Court wrongly concluded that a valid hardship exception may preclude all liability. 22 (Pl.'s Req. for Leave, at 3:22-23) ("[t]he Court's ruling could be interpreted to mean that a hardship 23 exception properly is a complete defense to a CDPA claim"). That legal proposition, also not raised 24 in plaintiff's original motion, is the subject of disagreement. Compare Donald v. Cafe Royale, Inc., 25 218 Cal. App. 3d 168, 176 (1990) (recognizing "the possibility that in some instances denial of 2 access under the statute may be excused, e.g., where the violator has been affirmatively directed, or 3 given formal approval, by an enforcing agency to construct premises in a certain way.."), and 4 D'Lil v. Stardust Vacation Club, No. C 00-1496, 2001 WL 1825832, at *8 (E.D. Cal. Dec. 21, 2001) 5 (citing Donald for the proposition that "defendant's good faith reliance on an agency's erroneous 6 legal opinion may in some instances preclude liability"), with City & Cnty. of San Francisco v. Grant Co., 181 Cal. App. 3d 1085, 1092-93 (1986) (doctrine of estoppel, arising from a local 8 building department's permit,may not be applied to state-initiated regulatory enforcement action), 9 and D'Lil v. Best Western Encina Lodge, 2004 WL 3685756, at *3 (C.D. Cal. Dec. 13, 2004) ("No 10 court has suggested that the issuance of a building permit diminishes a private plaintiff's right to allege a violation of accessibility laws" (emphasis added)). Given plaintiff's failure to brief this uncertain issue, the Court denied him summary judgment, and reserved the question for trial. It did 13 not hold that defendants are exempt from liability. Plaintiff's request for reconsideration of the 14 issue is therefore denied. 15


For the reasons stated, the motion is granted in part and denied in part. The parties are 17 instructed to appear for a further Case Management Conference on July 12, 2012, at 10:00 a.m. in 18 Courtroom 3, 17th Floor, United States Courthouse, 450 Golden Gate Avenue, in San Francisco, 19 California. The parties shall file a Joint Case Management Statement at least one week prior to the 20 Conference. 21 22


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