California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 07CC08601, Andrew P. Banks, Judge. Affirmed.
David Geffen Law Firm and David G. Geffen for Plaintiff and Appellant.
Payne & Fears, Daniel F. Fears, Daniel L. Rasmussen and Daniel F. Lula for Defendant and Respondent.
MOORE, ACTING P. J.
In 2007, plaintiff Tina Baughman brought suit against Walt Disney World Co. (Disney) alleging negligence per se, and violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., (ADA)), California’s Disabled Persons Act (Civ. Code, § 54 et seq., (DPA)), and the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), based on Disney’s refusal to allow her to use a Segwayat Disneyland, a place she has never been. Baughman alleged the Segway is her preferred method of transportation, given that her muscular dystrophy substantially limits her ability to walk. The ADA cause of action was subsequently removed to the federal district court.
The trial court below granted Disney’s motion for summary judgment and entered judgment in Disney’s favor. We find Disney established it is entitled to judgment as a matter of law in that it demonstrated a Segway is an unstable two-wheeled device that could accelerate quickly, either forward or backward, and injure the rider and/or others if the rider is bumped. The undisputed expert evidence showed Segways cannot be used safely in Disneyland crowds due to its method of operation. In all of the papers submitted, there is no evidence showing the Segway can be safely used at Disneyland except Baughman’s inconsequential declaration that she has never had an accident while using her Segway. There was no evidence that Disney’s procedures amounted to a lack of a reasonable accommodation. Accordingly, no triable issue of fact remains.
Because this issue is dispositive, we need not address other issues raised by the parties, including whether Baughman should be judicially estopped from claiming she cannot use a motorized scooter or wheelchair, given the fact she has brought three prior ADA lawsuits in which she alleged she uses a wheelchair or motorized scooter, or whether she has standing to bring an action for damages under the Unruh Civil Rights Act or the DPA. (Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 416 [“a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices” under the Unruh Civil Rights Act]; Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1224 [DPA requires disabled person to have paid admission fee and then be denied entry].) We affirm.
A. Prior Lawsuits by Baughman
In 2005, Baughman filed a complaint against Sav-On Drug Store alleging negligence per se and violations of the ADA, the DPA, the Unruh Civil Rights Act, and Health and Safety Code section 19955, et seq. The lawsuit concerned access to Sav-On Drug Store’s restroom.
In 2006, Baughman filed a lawsuit against the Department of Motor Vehicles on much the same grounds. This lawsuit also involved the use of a restroom. The case settled when the Department of Motor Vehicles agreed to bring their restrooms into compliance and paid Baughman $4, 000 in damages.
In 2006, Baughman brought the same type of lawsuit against Santa Monica Ford. This lawsuit also settled when Santa Monica Ford agreed to bring its restrooms into compliance and paid Baughman $4, 000 in damages.
Baughman’s attorney in the present matter represented her on each of the other complaints and signed each of the complaints. The sixth paragraph of each of the other complaints alleged Baughman “has a physical impairment which causes her to rely on a power scooter or wheelchair for her mobility.” An attorney who worked in the office of Baughman’s attorney drafted the complaints in the Sav-On Drug Store and Santa Monica Ford lawsuits. His declaration states he incorrectly alleged Baughman relied on a wheelchair or a scooter. Baughman’s present attorney ...