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Rodriguez v. Barrita, Inc.

United States District Court, N.D. California, San Francisco Division

January 24, 2014

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

For Armando Rodriguez, Plaintiff: Catherine M. Cabalo, Celia Louise McGuinness, Paul Leslie Rein, Law Offices of Paul L. Rein, Oakland, CA.

For Barrita, Inc., doing business as LA Victoria Taqueria, ENS Associates Investments, LLC, Nicandro Barrita, Defendants: David Irwin Kornbluh, LEAD ATTORNEY, Miller Morton Caillat & Nevis, LLP, San Jose, CA.

For Masoud Shahidi, Defendant: David Irwin Kornbluh, LEAD ATTORNEY, Miller Morton Caillat & Nevis, LLP, San Jose, CA; James R Cracolice, LEAD ATTORNEY, Cracolice & Associates, San Jose, CA.

Page 937

ORDER GRANTING LEAVE TO FILE MOTION FOR RECONSIDERATION, DENYING MOTION FOR RECONSIDERATION, AND RENDERING ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE.

Pursuant to Civil Local Rule 7-9, defendants request leave to file a motion for reconsideration of the prior order rendering findings of fact and conclusions of law. (ECF No. 250). Specifically, defendants request reconsideration because the order, which found that the City of San Jose Building Department apparently approved the prior owners' 1986 application for an " unreasonable hardship" exception from Title 24 disabled access requirements, concluded the building remains in violation of Title 24 due to the 1985 and 1986 alterations. Defendants contend that the Department's apparent approval of the 1986 unreasonable hardship application rendered the building compliant with Title 24, thereby precluding California Disabled Persons Act (CDPA) liability for then-existing barriers.

Page 938

Because the order did not directly address the validity or effect of the City's apparent approval of the 1986 unreasonable hardship application, defendants' application for leave to file is hereby granted. Civ. L. R. 7-9(b). For the following reasons, however, the motion for reconsideration is denied.[1]

I. ADDITIONAL FINDINGS OF FACT

1. In a document dated May 5, 1986, the building's prior owners applied for an " unreasonable hardship" exception from Title 24 access requirements. (Pl. Exh. 67). The application is comprised of a form created by the City of San Jose Department of Private Development. The form prompts the applicant to provide information regarding the cost of complying with disabled access requirements.
2. Item 2 of the form requests the applicant list the cost of " all construction contemplated." The application provides two figures: (a) " $72,600," which was apparently crossed out, and (b) " $2,500." The figures appear to be in different handwriting. At trial, neither party argued the significance of the disparity between these figures. Nor did either party attempt to explain the apparent difference in handwriting.
3. Item 3(a) prompts, " The access feature increases the cost of construction by ." The application lists a number that is not entirely discernible. This number also appears to have been crossed out.
4. The applicant's handwritten responses further provide that the " cost" of access features is $5,000 and the impact of proposed improvements on the feasibility of the project is " significant." When prompted to describe " [t]he accessibility feature(s) which would be gained or lost," the applicant wrote " wheelchair access." The applicant also describes the " type" of facility as " deli/office." The applicant states the facility is used by the general public for the purpose of " eating/visiting office."
5. The bottom half of the form provides a section to be filled out by the Building Department. That section includes several prompts. Many of these prompts were not completed. One such prompt provides:
The determination of unreasonable hardship and this documentation do not allow a blanket exemption from the access requirements. The exception provided for by this form applies to the following item of the project: .
The field accompanying this prompt is blank. The form also instructs the Building Department to " check one" field indicating whether and how the applicant will provide equivalent facilitation " As Specified by Title 24." None of ...

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