Opinion
Plaintiff and appellant Thomas Mundy, a disabled person, sought to recover damages from defendant and respondent Pro-Thro Enterprises for denying him full and equal access to its business location. Following
BACKGROUND
On December 22, 2008, appellant filed a complaint against respondent for a violation of the Disabled Persons Act (DPA).
On July 10, 2009, appellant filed an amended complaint that added a cause of action under the Unruh Civil Rights Act (the Act),
A court trial was held on February 11, 2010. Appellant testified that he was confined to a wheelchair, that he visited respondent’s car wash on October 9, 2008, and that the restroom mirror was mounted too high for him to use. The only reason appellant needed to use the restroom mirror was to check his appearance. However, there were other reflective surfaces at the location that he could have used for that purpose, including an exterior window and a sales display of rearview mirrors. He did not attempt to use one of these alternatives, nor did he notify respondent about the problem with the height of the restroom mirror on the day of the incident. Subsequently, a full-length mirror was installed in the restroom.
After the court entered judgment for respondent, appellant filed a timely notice of appeal.
CONTENTIONS ON APPEAL
1. Appellant presented sufficient evidence to establish a violation of the Act and was therefore entitled to a judgment in his favor.
2. The trial court abused its discretion in admitting evidence of other lawsuits filed by appellant.
DISCUSSION
Appellant was not entitled to a judgment, because he failed to present any evidence under section 55.56
In his opening brief, appellant contends that the evidence at trial established an ADA violation which entitled him to a judgment under the Act. In its brief, respondent argues that in order to prove a violation of the Act, appellant was required, but failed, to prove that he was denied full and equal access within the meaning of section 55.56.
Our resolution of this appeal turns on whether appellant was required to make a showing under section 55.56. If section 55.56 was applicable, then it was necessary for appellant to prove that he was denied full and equal access when he personally encountered an ADA violation. (§ 55.56, subd. (b).) Denial of such access may be proved by showing that appellant experienced difficulty, discomfort, or embarrassment as a result of personally encountering the ADA violation. (§ 55.56, subd. (c).) Because the applicability of section 55.56 is an issue of law rather than one involving the resolution of disputed facts, we apply the de novo standard of review. (Garcia v. Superior Court (2009)
Section 55.56 is part of a comprehensive statutory scheme that was enacted in 2008 with the intent of increasing voluntary compliance with equal access standards “while protecting businesses from abusive access litigation.” (Munson v. Del Taco, Inc. (2009)
In addition to the requirement that a claim be construction related for section 55.56 to apply, such claim must also have been “filed on or after January 1, 2009.” (§ 55.57, subd. (a).)
Appellant has failed to show that the court’s evidentiary rulings were an abuse of discretion
Appellant contends that the court erroneously admitted evidence that he previously filed more than 300 similar lawsuits, that he was unemployed and earned his living as a disability plaintiff, that he failed to give respondent prelitigation notice of the violation, and that he failed to request that the violation be corrected.
We reject his contention for several reasons. First, the record reflects that appellant objected in the trial court to the admission only of the evidence concerning the prior lawsuits. In order to preserve a claim of evidentiary error for appellate review, the appealing party must make a contemporaneous and specific objection in the trial court. (Evid. Code, § 353, subd. (a).) Appellant’s failure to object to evidence concerning his employment status, absence of prelitigation notice, and lack of a correction request, forfeits his claim on appeal that such evidence was improperly admitted. (Estate of Odian (2006)
With respect to the court’s ruling that was preserved for appeal—the admission of evidence showing that appellant had filed a substantial number of similar lawsuits—we apply the deferential abuse of discretion standard of review. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002)
McKay, P. J., and Kumar, J., concurred.
Notes
The DPA, which is set forth in Civil Code sections 54 and 54.1, generally guarantees persons with disabilities the right to full and equal access to places of public accommodation, and makes any violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; hereafter ADA) a violation of the DPA.
All further statutory references are to the Civil Code unless otherwise indicated.
The Act is set forth in section 51 et seq., and prohibits businesses from discriminating against any individual on the basis of factors including sex, race, religion, national origin, and disability. Any violation of the ADA is also a violation of the Act. (§ 51, subd. (f).)
The proof of service as to the original complaint was not filed until shortly before the filing of the amended complaint. Thus, respondent did not file an answer to the original complaint.
Under section 55.56, a plaintiff alleging a violation of either the Act or the DPA may recover statutory damages only if the violation denied him or her “full and equal access to the place of public accommodation on a particular occasion.” (§ 55.56, subd. (a).) A plaintiff is denied full and equal access either by personally encountering the violation or being deterred thereby from accessing the location. (§ 55.56, subd. (b).) “A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.” (§ 55.56, subd. (c), italics added.)
Section 55.57, subdivision (a) provides as follows: “This part [(§ 55.55 et seq.)] shall apply only to claims filed on or after January 1, 2009. Nothing in this part is intended to affect litigation filed before that date, and no inference shall be drawn from provisions contained in this part concerning the state of the law as it existed prior to January 1, 2009.”