Ramirez et al v. Sam's for Play Cafe et al
Filing
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ORDER GRANTING 17 STIPULATION RE PLAINTIFFS LEAVE TO FILE FIRST AMENDED COMPLAINT. Signed by Judge Jeffrey S. White on 8/21/12. (jjoS, COURT STAFF) (Filed on 8/21/2012)
<![CDATA[
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page1 of 49
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THOMAS E. FRANKOVICH (State Bar No. 074414)
THOMAS E. FRANKOVICH,
A Professional Law Corporation
4328 Redwood Hwy, Suite 300
San Rafael, CA 94903
Telephone:
415/674-8600
Facsimile:
415/674-9900
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Attorney for Plaintiffs
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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IRMA RAMIREZ and DAREN
HEATHERLY,
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Plaintiffs,
)
)
v.
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SAM’S FOR PLAY CAFE; DARLEEN
)
SAM ANKER, TRUSTEE, THE D. SAM )
)
ANKER TRUST, dated March 14, 2008;
)
and DARLEEN SAM ANKER, an
)
individual dba SAM’S FOR PLAY CAFÉ, )
)
)
Defendants.
)
____________________________________)
CASE NO. CV-11-1370-JSW
STIPULATION AND [PROPOSED]
ORDER RE PLAINTIFFS’ LEAVE TO
FILE FIRST AMENDED COMPLAINT
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IT IS HEREBY STIPULATED by and through the parties respective counsel in the
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above-mentioned case that plaintiffs IRMA RAMIREZ and DAREN HEATHERLY may file the
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[Proposed] First Amended Complaint hereto as exhibit “A.”
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1.
WHEREAS, the parties have agreed to allow plaintiffs leave to file the
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[Proposed] First Amended Complaint attached as Exhibit “A” to comport with current case law.
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ST IP U L A T IO N A N D [P R O PO SE D ] O R D E R R E P L A IN T IF FS’ L E A V E T O FIL E FIR ST A M E N D E D C O M P L A IN T
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Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page2 of 49
IT'S SO STIPULATE that plaintiff s IRMA RAMIREZ
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and DAREN HEATHERLY be
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permitted to file the First Amend Complaint to comport with current case law and that the
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Answer that was fìled on May 26,201l, by defendants DARLEEN SAM ANKER, TRUSTEE,
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THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an
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individual dba SAM'S FOR PLAY CAFÉ be deemed defendants DARLEEN SAM ANKER,
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TRUSTEE, THE D. SAM ANKER TRUST, dated March 14,2008; and DARLEEN SAM
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ANKER, an individual dba SAM'S FOR PLAY CAFÉ's Answer to the First Amended
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Complaint.
Respectfully Submitted,
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Dated:August 17,2012
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THOMAS E. FRANKOVICH,
A PROFESSIONAL LAW CORPORATION
/s/Thomas E.
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ich
Thomas E. Frankovich
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Attorney for Plaintiff IRMA RAMIREZ; and
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DAREN HEATHERLY
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Dated:
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,Aua.l7 ,zotz
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PERRY, JOHNSON, ANDERSON, MILLER &
MOSKOWITZLLP,
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2t
a
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Scott A. Lewis
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Attorneys for Defendants DARLEEN SAM
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ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14,2008;and DARLEEN
SAM ANKER, an individualdba SAM'S FOR
PLAY CAFÉ
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STlPULATION ANI' IPROPOSEDI ORI'ER RE PLAINTIFFS' LEAVE TO FILE FIRST AMENI'ED COMPLATNT
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Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page3 of 49
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ORDER
Pursuant to the parties’ stipulation, IT IS ORDERED that plaintiffs IRMA RAMIREZ
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and DAREN HEATHERLY may file a First Amended Complaint to comport with current case
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law and that the initial Answer filed on May 26, 2011, by defendants DARLEEN SAM ANKER,
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TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
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ANKER, an individual dba SAM’S FOR PLAY CAFÉ may serve as defendants DARLEEN
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SAM ANKER, TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and
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DARLEEN SAM ANKER, an individual dba SAM’S FOR PLAY CAFÉ’s Answer to the First
Amended Complaint.
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August 21
Dated: _______________, 2012
_________________________________________
HONORABLE JEFFREY S. WHITE
United States District Judge
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ST IP U L A T IO N A N D [P R O PO SE D ] O R D E R R E P L A IN T IF FS’ L E A V E T O FIL E FIR ST A M E N D E D C O M P L A IN T
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Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page5 of 49
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THOMAS E. FRANKOVICH,
A Professional Law Corporation
THOMAS E. FRANKOVICH (State Bar No. 074414)
4328 Redwood Hwy., Suite 300
San Rafael, CA 94903
Telephone:
415/674-8600
Facsimile:
415/674-9900
Attorney for Plaintiffs
IRMA RAMIREZ and DAREN HEATHERLY
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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IRMA RAMIREZ and DAREN
HEATHERLY,
)
)
)
)
Plaintiffs,
)
)
)
v.
)
)
)
SAM’S FOR PLAY CAFE; DARLEEN
SAM ANKER, TRUSTEE, THE D. SAM )
)
ANKER TRUST, dated March 14, 2008;
)
and DARLEEN SAM ANKER, an
)
individual dba SAM’S FOR PLAY CAFÉ, )
)
)
Defendants.
)
____________________________________)
CASE NO. CV-11-1370-JSW
Civil Rights
[PROPOSED] FIRST AMENDED
COMPLAINT FOR INJUNCTIVE RELIEF
AND DAMAGES:
1st CAUSE OF ACTION: For Denial of Access
by a Public Accommodation in Violation of the
Americans with Disabilities Act of 1990 (42
U.S.C. §12101, et seq.)
2nd CAUSE OF ACTION: For Denial of Full
and Equal Access in Violation of California
Civil Code §§54, 54.1 and 54.3
3rd CAUSE OF ACTION: For Denial of
Accessible Sanitary Facilities in Violation of
California Health & Safety Code §19955, et seq.
4th CAUSE OF ACTION: For Denial of
Access to Full and Equal Accommodations,
Advantages, Facilities, Privileges and/or
Services in Violation of California Civil Code
§51, et seq. (The Unruh Civil Rights Act)
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DEMAND FOR JURY
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
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Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY, complain of defendants
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DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008;
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and DARLEEN SAM ANKER, an individual dba SAM’S FOR PLAY CAFÉ and allege as
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follows:
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INTRODUCTION:
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1.
This is a civil rights action for discrimination against persons with physical
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disabilities, of which class plaintiff IRMA RAMIREZ, plaintiff DAREN HEATHERLY and the
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disability community are members, for failure to remove architectural barriers structural in nature
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at defendants’ SAM’S FOR PLAY CAFE, a place of public accommodation, thereby
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discriminatorily denying each plaintiff and the class of other similarly situated persons with
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physical disabilities access to, the full and equal enjoyment of, opportunity to participate in, and
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benefit from, the goods, facilities, services, and accommodations thereof. Each plaintiff seeks
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injunctive relief and damages pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C.
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§12101, et seq.; California Civil Code §§51, 51.5 and 54, et seq.; and California Health & Safety
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Code §19955, et seq.
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2.
Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each is a person
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with physical disabilities who, on or about June 19, 2008, June 23, 2008, July 22, 2008, October
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30, 2010, November 3, 2010, November 26, 2010 and February 3, 2011, was an invitee, guest,
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patron, customer at defendants’ SAM’S FOR PLAY CAFE, in the City of Santa Rosa,
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California. At said times and place, defendants failed to provide proper legal access to the cafe,
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which is a “public accommodation” and/or a “public facility” including, but not limited to
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signage, parking, entrances, men’s restroom and women’s restroom. The denial of access was in
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violation of both federal and California legal requirements, and plaintiff IRMA RAMIREZ and
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plaintiff DAREN HEATHERLY each suffered violation of his/her civil rights to full and equal
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access, and was embarrassed and humiliated.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
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JURISDICTION AND VENUE:
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3.
Jurisdiction: This Court has jurisdiction of this action pursuant to 28 U.S.C.
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§1331 for violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq.
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Pursuant to pendant jurisdiction, attendant and related causes of action, arising from the same
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nucleus of operative facts and arising out of the same transactions, are also brought under parallel
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California law, whose goals are closely tied with the ADA, including but not limited to violations
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of California Civil Code §51, et seq. and §54, et seq., California Health & Safety Code §19955 et
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seq., including §19959; California Building Code.
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4.
Venue: Venue is proper in this court pursuant to 28 U.S.C. §1391(b) and is
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founded on the facts that the real property which is the subject of this action is located at/near
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1024 Sebastopol Road, in the City of Santa Rosa, County of Sonoma, State of California, and
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that plaintiffs’ causes of action arose in this county.
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PARTIES:
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5.
Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each is a
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“physically handicapped person”, a “physically disabled person”, and a “person with physical
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disabilities” (hereinafter the terms “physically disabled”, “physically handicapped” and “person
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with physical disabilities” are used interchangeably, as these words have similar or identical
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common usage and legal meaning, but the legislative scheme in Part 5.5 of the Health & Safety
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Code uses the term “physically handicapped persons” and the Unruh Civil Rights Act, §§51,
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51.5, 54 and 54.1, and other statutory measures refer to protection of the rights of “physically
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disabled persons”). Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each is a
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“person with physical disabilities”, as defined by all applicable California and United States
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laws. Plaintiff IRMA RAMIREZ suffers from Post-Polio syndrome. Plaintiff IRMA RAMIREZ
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relies primarily on a wheelchair as her ambulance to travel about in public. Plaintiff DAREN
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HEATHERLY is afflicted with Multiple Sclerosis and a left hip replacement.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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Plaintiff DAREN HEATHERLY relies primarily on a wheelchair as his ambulance to travel
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about in public. Consequently, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY
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each is a member of that portion of the public whose rights are protected by the provisions of
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Health & Safety Code §19955, et seq. (entitled “Access to Public Accommodations by
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Physically Handicapped Persons”) and the protections of the Unruh Civil Rights Act, Civil Code
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§§51 and 51.5 the Disabled Persons Act, Civil Code §54, and the Americans with Disabilities
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Act, 42 U.S.C. §12101, et seq.
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6.
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DEFINITIONS:
a.
ADAAG - The Americans with Disabilities Act Accessibility Guidelines
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of 1990; and The Americans with Disabilities Act Accessibility Guidelines
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2010 revision. (Used where applicable).
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b.
ARCHITECTURAL BARRIERS - Architectural barriers are physical
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features that limit or prevent people with disabilities from obtaining the
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goods or services that are offered. They can include but are not limited to
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the following examples: parking spaces that are too narrow to
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accommodate people who use wheelchairs; a step or steps at the entrance
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or to part of the selling space of a store; round doorknobs or door hardware
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that is difficult to grasp; aisles that are too narrow for a person using a
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wheelchair; electric scooter, or a walker; a high counter or narrow
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checkout aisles at a cash register, and fixed tables in eating areas that are
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too low to accommodate a person using a wheelchair or that have fixed
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seats that prevent a person using a wheelchair from pulling under the table.
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Excerpted from the “ADA Guide for Small Businesses” with an
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interlineation modification. http://www.ada.gov/smbustxt.htm.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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c.
ELEMENTS - An architectural or mechanical component of a building,
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facility, space, or site (e.g., telephone, curb ramp, door, flush valve,
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drinking fountain, seating, or water closet, toilet seat, dispensers) and/or
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placement or lack thereof.
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d.
CATEGORICAL ARCHITECTURAL BARRIERS - Are elements and
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facilities which are, or can be architectural barriers standing alone or in
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combination with one another where the element(s)/facility(s) is/are
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noncomplying or where the combination thereof creates a category. For
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example: such as a parking lot, entrance, restroom, lobby, guest room,
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dining area.
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e.
PHYSICAL FEATURES - Are synonymous with “Elements.”
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f.
FACILITY - All or any portion of buildings, structures, site
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improvements, complexes, equipment, roads, walks, passageways, parking
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lots, or other real or personal property located on a site.
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g.
ENTRANCE - Any access point to a building or portion of a building or
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facility used for the purpose of entering. An entrance includes the
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approach walk, the vertical access leading to the entrance platform, the
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entrance platform itself, vestibules if provided, the entry door(s) or
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gate(s) , and the hardware of the entry door(s) or gate(s).
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h.
CLEAR FLOOR SPACE - The minimum unobstructed floor or ground
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space required to accommodate a singe, stationary wheelchair and
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occupant.
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i.
ACCESSIBLE ROUTE - A continuous unobstructed path connecting all
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accessible elements and spaces of a building or facility. Interior accessible
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routes may include corridors, floors, ramps, elevators, lifts, and clear floor
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space at fixtures. Exterior accessible routes may include parking access
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aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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j.
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ACCESSIBLE SPACE/PATH OF TRAVEL - Space that complies with
ADAAG guidelines.
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k.
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NON COMPLYING - Not complying with ADAAG and/or the “Readily
Achievable Standard” of CFR 34.306.
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7.
Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
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TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba SAM’S FOR
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PLAY CAFÉ (hereinafter alternatively collectively referred to as “defendants”) are the owners
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and operators, lessors and/or lessees, or agents of the owners, lessors and/or lessees, of the public
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accommodation known as SAM’S FOR PLAY CAFE, located at/near 1024 Sebastopol Road,
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Santa Rosa, California, or of the building and/or buildings which constitute said public
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accommodation.
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8.
At all times relevant to this complaint, defendants DARLEEN SAM ANKER,
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TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
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ANKER, an individual dba SAM’S FOR PLAY CAFÉ, own and operate in joint venture the
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subject SAM’S FOR PLAY CAFE as a public accommodation. This business is open to the
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general public and conducts business therein. The business is a “public accommodation” or
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“public facility” subject to the requirements of California Civil Code §§51, 51.5 and 54, et seq.,
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Health and Safety code §19955, et seq., and the ADA, 42 U.S.C. §12101, et seq.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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9.
At all times relevant to this complaint, defendants DARLEEN SAM ANKER,
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TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
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ANKER, an individual dba SAM’S FOR PLAY CAFÉ are jointly and severally responsible to
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identify and remove architectural barriers at the subject SAM’S FOR PLAY pursuant to Code of
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Federal Regulations title 28, section 36.201(b), which states in pertinent part:
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§ 36.201
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(b) Landlord and tenant responsibilities. Both the landlord
who owns the building that houses a place of public
accommodation and the tenant who owns or operates the place of
public accommodation are public accommodations subject to the
requirements of this part. As between the parties, allocation of
responsibility for complying with the obligations of this part may
be determined by lease or other contract.
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28 CFR §36.201(b)
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PRELIMINARY FACTUAL ALLEGATIONS:
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General
The SAM’S FOR PLAY CAFE, is a restaurant, located at/near 1024 Sebastopol
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Road, Santa Rosa, California 95407. The SAM’S FOR PLAY CAFE, its signage, parking,
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entrances, men’s restroom and women’s restroom, and its other facilities are each a “place of
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public accommodation or facility” subject to the barrier removal requirements of the Americans
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with Disabilities Act. On information and belief, each such facility has, since July 1, 1970,
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undergone “alterations, structural repairs and additions,” each of which has subjected the SAM’S
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FOR PLAY CAFE and each of its facilities, its signage, parking, entrances, men’s restroom and
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women’s restroom to disability access requirements per the Americans with Disabilities Act
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Accessibility Guidelines (ADAAG), and the California Building Code.
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On or about the year of 2001, defendants’ and each of them purchased and/or
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took possessory control of the premises now known as SAM’S FOR PLAY CAFE. At all times
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prior thereto, defendants’ and each of them were aware of their obligation prior to the close of
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escrow, or upon taking possessory interest that public accommodations had a duty to identify and
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remove architectural barriers and were aware that SAM’S FOR PLAY CAFE was not accessible
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to the disabled. Nevertheless, defendants’ and each of them, operated the café as though it was
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accessible.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
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12.
At all times stated herein, defendants’ and each of them with the knowledge that
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each of them had a continuing obligation to identify and remove architectural barriers where it
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was readily achievable to do so, failed to adopt a transition plan to provide better and/or
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compliant access to the subject accommodation.
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13.
At all times referred to herein and continuing to the present time, defendants, and
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each of them, advertised, publicized and held out the SAM’S FOR PLAY CAFÉ as being
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handicapped accessible and handicapped usable.
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14.
On or about June 19, 2008, June 23, 2008, July 22, 2008, October 30, 2010,
November 3, 2010, November 26, 2010 and February 3, 2011, plaintiff IRMA RAMIREZ and
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plaintiff DAREN HEATHERLY each was an invitee and guest at the subject SAM’S FOR
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PLAY CAFÉ, for purposes of having food and beverage. Plaintiff IRMA RAMIREZ and
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Plaintiff DAREN HEATHERLY are married to one another.
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15.
On or about June 19, 2008, June 23, 2008, July 22, 2008, plaintiff IRMA
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RAMIREZ and plaintiff DAREN HEATHERLY patronized SAM’S FOR PLAY. On each date,
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each plaintiff encountered a parking lot without proper signage nor parking stalls for the
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disabled.
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16.
At said times and place, plaintiff IRMA RAMIREZ and plaintiff DAREN
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HEATHERLY needed to use the women’s and men’s restrooms. Plaintiff IRMA RAMIREZ
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while being able to squeeze through the narrow doorway, encountered many inaccessible
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elements within the restroom. Plaintiff DAREN HEATHERLY struggled to get through the
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narrow doorway and banged parts of his body attempting to enter and exit the men’s restroom.
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Plaintiff DAREN HEATHERLY also encountered many elements of the men’s restroom which
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constituted architectural barriers.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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17.
On or about September 5, 2008, plaintiff IRMA RAMIREZ wrote both the
landlord and tenant about the access issues. Plaintiff IRMA RAMIREZ wrote:
“My husband and I have been to Sam’s For Play. We both use
wheelchairs. We both have problems at the restaurant. Daren has
more problems. The tables are so close together that you can’t roll
between them. You don’t have van accessible parking so we have
a real problem putting down our ramp and not being trapped by a
car pulling alongside. The restrooms also need to be more
accessible. For example, the men’s restroom door is so narrow that
Daren gets banged up trying to get in out in his power chair. I
would really appreciate it if you would give me written assurance
within the next two weeks that you will take care of these problems
within the next three months. I’d like a written agreement. If you
cannot do this would you forward my letter to whomever is in
charge. We’d like to come back to Sam’s For Play once it’s
accessible to us. If there is some problem doing this please let me
know. Would you please reply to my letter by FedEx to make sure
I get your response? I found out who might be able to help you. If
you need information on exactly what you need to do, you can
contact Pacific ADA and IT Center. You can write to them at
Pacific Disability and Business Technical Assistance Center, 555
12th Street, Suite 1030, Oakland, CA 94607-4046. You can also
get a hold of them at 1-800-949-4232 (V/TTY) or (510) 285-5600
(V/TTY). Their website is www.pacdbtac.org. You can also get
ADA Regulations and Technical Assistance Materials by calling 1800-514-0301 or go to www.usdoj.gov/crt/ada/adahom1.htm.
Either of them can send you a copy of the ADA and ADAAG
codes, specifications, diagrams and manuals so that you can do the
work yourself or have someone do it for you. You could also get a
list of barriers common to places like yours and do your own
inspection for barriers and remove them. I was told that, if you
make less than a million dollars per year and have a few employees,
that you can get a $10,000 tax credit to make your place accessible.
That’s a great deal. You can get information on this from the two
places I mentioned above. You should talk to your accountant
about it. Maybe your account already has this information or knows
about it. Thank you for considering my request.”
Plaintiff IRMA RAMIREZ did not receive a response.
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[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
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18.
On or about October 30, 2010, November 3, 2010, November 26, 2010 and
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February 3, 2011, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY returned to
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SAM’S FOR PLAY. On each of said occasion, plaintiff IRMA RAMIREZ and plaintiff DAREN
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HEATHERLY drove into the parking lot of SAM’S FOR PLAY. Plaintiffs encountered the
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following architectural barriers and as a result had the following adverse experiences:
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•
Lack of van accessible parking and signage.
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As a legal result, each plaintiff experienced anxiety and worry because once their lift was
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deployed and each exited the van as they did, it would be difficult/not possible to return to their
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van and enter it if a vehicle parking alongside of it on the right side. No remedial work had been
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done.
19.
In the interim, between November 26, 2010 and February 3, 2011, and on or about
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December 15, 2010, plaintiff IRMA RAMIREZ again wrote the landlord and tenant concerning
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access issues. She wrote:
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“You probably don’t remember us. I wrote you about two years ago about
wheelchair access. Recently my husband and I have been back at Sam’s to
eat. The food is good. There is a lot of it. The prices are fair. But, big but
there are still some problems. They don’t make the experience as good as
could be. There is still a parking problem. The parking stall in the corner
does not have cross striping and no parking written on the ground. A
motorcycle could block you in. Also it is uneven. So when you deploy the
ramp it does not lay flat. That creates a problem. Next, 2 years ago I didn’t
have a power chair. I could get into the women’s restroom. Now, it’s really
hard because the door is too narrow. Two years ago, I explained how it was
a problem for my husband, Daren. He also uses a power chair and gets
banged up trying to get in the men’s restroom. Anyway, I told you about these
kind of problems two years ago. So I think you need to really look into this
and solve the problems. I don’t think any are really difficult to do. Don’t
think they would be costly. You get a lot of seniors and doing this would be
good for everyone. I thought the landlord and the tenant should know about
this. That’s why I wrote this identical letter to both of you. It’s like letting
the right hand know what the left hand is doing! If you both put your heads
and hands together, I know the two of you can fix this problem.
You need to learn what needs to be done and do it now. So to help you,
please call Pacific ADA and IT Center in Oakland at 1-800-949-4232, and
ask them to send you all the information they have on access then you will
know what to look at and what needs to be done.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
10
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page15 of 49
1
Much of the work can be done by a handyman. Also, look into the $10,000
tax credit for providing access. Remember, wheelchair users have an old
saying: “Access delayed is Access denied!” You understand, right? Anyway,
please write me when you get this letter, tell me exactly what will be done
and make me a promise that you will take care of this right away. Give me
a date. If you are not the one in charge or don’t have the responsibility to do
it, would you make sure this letter goes to the person in charge or who can
make decisions on what to do. Thanks!”
2
3
4
5
6
20.
7
On or about February 3, 2011, plaintiff IRMA RAMIREZ and plaintiff DAREN
8
HEATHERLY again returned to SAM’S FOR PLAY. Plaintiff IRMA RAMIREZ and plaintiff
9
DAREN HEATHERLY placed a take-out order. Plaintiff IRMA RAMIREZ and plaintiff
10
DAREN HEATHERLY encountered the same noncompliant parking stall(s). Plaintiff DAREN
11
HEATHERLY picked up the food order and upon returning to plaintiffs’ van, he went to the
12
restroom. No remedial changes had been made to the men’s restroom.
21.
13
On or about October 30, 2010, November 3, 2010, November 26, 2010 and
14
February 3, 2011, plaintiff IRMA RAMIREZ returned to SAM’S FOR PLAY. On each of said
15
occasion, plaintiff IRMA RAMIREZ encountered the following architectural barriers and as a
16
result had the following adverse experiences:
•
17
18
Plaintiff IRMA RAMIREZ encountered a noncompliant women’s
restroom, to wit:
19
i.
narrow door;
20
ii.
short rear grab bar;
21
iii.
too highly placed toilet seat cover; and
22
iv.
lack of a lavatory with mounting to allow wheelchair(s) to go
underneath and other inaccessible elements.
23
24
As a legal result, it was difficult for plaintiff IRMA RAMIREZ to pass through the narrow doors,
25
transfer to the toilet, reach the dispenser(s) and wash her hands.
26
///
27
///
28
///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
11
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page16 of 49
1
22.
On or about October 30, 2010, November 3, 2010, November 26, 2010 and
2
February 3, 2011, plaintiff DAREN HEATHERLY returned to SAM’S FOR PLAY. On each of
3
said occasion, plaintiff DAREN HEATHERLY encountered the following architectural barriers
4
and as a result had the following adverse experiences:
5
6
•
Plaintiff DAREN HEATHERLY encountered a noncompliant men’s
restroom, to wit:
7
i.
narrow door;
8
ii.
short rear grab bar;
9
iii.
too highly placed toilet seat cover; and
10
iv.
lack of a lavatory with mounting to allow wheelchair(s) to go
11
underneath and other inaccessible elements.
12
As a legal result, it was difficult for plaintiff DAREN HEATHERLY to pass through the narrow
13
doors, transfer to the toilet, reach the dispenser(s) and wash her hands.
14
23.
Therefore, at said time(s) and place, plaintiff IRMA RAMIREZ and plaintiff
15
DAREN HEATHERLY, each a person with a disability, encountered the following inaccessible
16
elements of the subject SAM’S FOR PLAY, which constituted architectural barriers and a denial
17
of the proper and legally-required access to a public accommodation to persons with physical
18
disabilities including, but not limited to:
19
a.
lack of directional signage to show accessible routes of travel, i.e.
entrance(s)
b.
lack of disabled van accessible parking stall(s);
c.
lack of (proper) disabled parking signage;
d.
lack of tow-a-way signage;
e.
lack of an accessible entrance(s);
f.
lack of a handicapped-accessible women’s public restroom;
g.
lack of a handicapped-accessible men’s public restroom; and
h.
On personal knowledge, information and belief, other public facilities and
elements too numerous to list were improperly inaccessible for use by
persons with physical disabilities.
20
21
22
23
24
25
26
27
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
12
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page17 of 49
1
24.
Specific architectural barriers encountered by plaintiff IRMA RAMIREZ
2
and plaintiff DAREN HEATHERLY at said time(s) and place herein in addition to categorical
3
architectural barriers stated herein and the respective difficulties experienced by plaintiff as
4
stated herein, the barriers include but are not limited to:
5
PARKING
6
•
no disabled parking signage;
7
•
no van accessible parking stall(s) and access aisle(s);
8
DINING
9
•
lack of accessible outside dining;
10
RESTROOMS
11
•
noncomplying men’s and women’s restrooms;
12
•
no International Symbol of Accessability (ISA) signage;
13
•
narrow door(s);
14
•
toilet that is not usable as whole or in part;
15
•
noncomplying grab bar(s); and
16
•
insufficient clear space under lavatories.
17
Therefore, as a legal result of encountering each of said elements, plaintiff(s)
18
experienced, stress, strain, difficulty, and discomfort to his/her upper extremities in attempting to
19
and/or using said elements also causing anxiety, disappointment, and embarrassment.
20
25.
At all time(s) as stated herein, plaintiff IRMA RAMIREZ and
21
plaintiff DAREN HEATHERLY encountered architectural barrier(s) as stated herein and/or had
22
personal knowledge of said barrier(s) and knew it would be a futile gesture to attempt to
23
overcome it/them because of his/her disability.
24
26.
At all time(s) and place, each architectural element as stated herein that did
25
not strictly comply with or substantially comply with the ADAAG minimum requirements
26
constituted an architectural barrier which precluded plaintiff IRMA RAMIREZ and plaintiff
27
DAREN HEATHERLY from full and equal opportunities afforded to non disabled persons to the
28
goods and services of SAM’S FOR PLAY.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
13
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page18 of 49
1
27.
Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY were and are
2
deterred from returning to SAM’S FOR PLAY so long as architectural barrier(s) complained of
3
that he/she encountered, as stated herein are not ADAAG compliant.
4
28.
At said time(s) and place, when plaintiff IRMA RAMIREZ and plaintiff DAREN
5
HEATHERLY encountered the architectural barriers as stated herein, plaintiff IRMA
6
RAMIREZ and plaintiff DAREN HEATHERLY in attempting to overcome the barriers to gain
7
access experienced any one or combination of physical difficulty, discomfort, embarrassment,
8
stress, strain, fatigue, anger, annoyance and disappointment. This arose from plaintiffs’ physical
9
inability to effectively use his/her upper extremities to easily overcome the architectural barriers
10
as stated herein. This constitutes a denial of full and equal access to the subject public
11
accommodation and a denial of the opportunity to independently enjoy and participate in the
12
opportunities, goods and services offered to non disabled persons and patrons, invitees and
13
guests.
14
29.
Said architectural barrier(s) as stated herein deprived and deterred plaintiff
15
IRMA RAMIREZ and plaintiff DAREN HEATHERLY the same full and equal access that a non
16
wheelchair user/non disabled person would enjoy while engaging in the goods, service and
17
opportunities offered at the subject SAM’S FOR PLAY.
18
30.
At all times stated herein, the existence of architectural barriers at defendants’
19
place of public accommodation evidenced “actual notice” of defendants’ intent not to comply
20
with the Americans with Disabilities Act of 1990 either then, now or in the future.
21
31.
On or about September 5, 2008 and December 15, 2010, defendant(s) were
22 sent four (4) letters by or on behalf of plaintiff IRMA RAMIREZ and plaintiff DAREN
23 HEATHERLY advising of their need to take immediate action to remove architectural barriers
24 and requesting a written response upon receipt of his/her letter, promising to immediately remove
25 the barriers and providing a date when that would be accomplished. Said letters are attached
26 hereto collectively as exhibit “A” and incorporated by reference as though fully set forth herein.
27 Defendants’ failure to respond evidenced an intent not to seek or engage in an early and
28 reasonable resolution of the matter.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
14
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page19 of 49
1
32.
At all times stated herein, defendants, and each of them, did not act as reasonable
2 and prudent landlord/tenant and were “negligent per se” or at a minimum negligent for not
3 removing architectural barriers that would foreseeably prevent plaintiff IRMA RAMIREZ from
4 receiving the same goods and services as able bodied people and some of which may and did pose
5 a threat of harm and/or personal injury to people with disabilities.
6
33.
At all times stated herein, defendants, and each of them, did not act as reasonable
7 and prudent landlord/tenant and were “negligent per se” or at a minimum negligent for not
8 removing architectural barriers that would foreseeably prevent plaintiff DAREN HEATHERLY
9 from receiving the same goods and services as able bodied people and some of which may and did
10 pose a threat of harm and/or personal injury to people with disabilities.
11
34.
As a legal result of defendants DARLEEN SAM ANKER, TRUSTEE, THE D.
12 SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
13 SAM’S FOR PLAY CAFÉ’s failure to act as a reasonable and prudent public accommodation in
14 identifying, removing or creating architectural barriers, policies, practices and procedures that
15 denied access to each plaintiff and other persons with disabilities, each plaintiff suffered the
16 damages as alleged herein.
17
35.
As a result of the denial of equal access to defendants’ facilities due to the acts and
18 omissions of defendants, and each of them, in owning, operating and maintaining these subject
19 public facilities, plaintiff IRMA RAMIREZ suffered violations of plaintiff’s civil rights, including
20 but not limited to rights under Civil Code §§51, 52, 54, 54.1, 54.3, et seq.
21
36.
As a result of the denial of equal access to defendants’ facilities due to the acts and
22 omissions of defendants, and each of them, in owning, operating and maintaining these subject
23 public facilities, plaintiff DAREN HEATHERLY suffered violations of plaintiff’s civil rights,
24 including but not limited to rights under Civil Code §§51, 52, 54, 54.1, 54.3, et seq.
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
15
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page20 of 49
1
37.
Further, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY suffered
2 emotional distress, mental distress, mental suffering, mental anguish, which includes, but is not
3 limited to, shame, humiliation, embarrassment, upset, anger, frustration, disappointment and
4 worry, expectedly and naturally associated with a person with physical disabilities encountering
5 architectural barrier(s) as stated herein and being denied access, all to his/her damages as prayed
6 hereinafter in an amount within the jurisdiction of this court. No claim is being made for mental
7 and emotional distress over and above that usually associated with the discrimination and physical
8 injuries claimed, and no expert testimony regarding this usual mental and emotional distress will
9 be presented at trial in support of the claim for damages.
10
38.
Defendants’, and each of their, failure to remove the architectural barriers
11 complained of herein created, at the time of plaintiff IRMA RAMIREZ and plaintiff DAREN
12 HEATHERLY’s first visit to said public accommodation, and continues to create continuous and
13 repeated exposure to substantially the same general harmful conditions which caused plaintiff
14 IRMA RAMIREZ and plaintiff DAREN HEATHERLY harm as stated herein.
15
39.
Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each was denied
16 his/her rights to equal access to a public facility by defendants DARLEEN SAM ANKER,
17 TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
18 ANKER, an individual dba SAM’S FOR PLAY CAFÉ, because defendants DARLEEN SAM
19 ANKER, TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN
20 SAM ANKER, an individual dba SAM’S FOR PLAY CAFÉ maintained a restaurant without
21 access for persons with physical disabilities to its facilities, including but not limited to signage,
22 parking, entrances, men’s restroom and women’s restroom, and other public areas as stated herein,
23 and continue to the date of filing this complaint to deny equal access to each plaintiff and other
24 persons with physical disabilities in these and other ways.
25
40.
On information and belief, construction alterations carried out by defendants have
26 also triggered access requirements under both California law and the Americans with Disabilities
27 Act of 1990.
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
16
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page21 of 49
1
41.
On information and belief, defendants have intentionally undertaken to modify and
2 alter existing building(s), and have failed to make them comply with accessibility requirements
3 under the requirements of ADAAG and California Building Code.
4
42.
On information and belief, defendants have been negligent in their affirmative duty
5 to identify the architectural barriers complained of herein and negligent in the removal of some or
6 all of said barriers.
7
43.
Because of defendants’ violations, plaintiffs and other persons with physical
8 disabilities are unable to use public facilities such as those owned and operated by defendants on a
9 “full and equal” basis unless such facility is in compliance with the provisions of the Americans
10 with Disabilities Act of 1990, Civil Code §51, Civil Code §54.1 and Health & Safety Code
11 §19955, et seq. and other accessibility law as pled herein. Plaintiffs seek an order from this court
12 compelling defendants to make the SAM’S FOR PLAY accessible to persons with disabilities.
13
44.
Each plaintiff, as described hereinbelow, seeks injunctive relief to require the
14 SAM’S FOR PLAY to be made accessible to meet the requirements of both California law and
15 the Americans with Disabilities Act of 1990, whichever is more restrictive, so long as defendants
16 operate the SAM’S FOR PLAY as a public facility.
17
45.
Plaintiff(s) believes that even with service of the summons and complaint on
18 defendant(s) and each of them, that defendant(s) will not , under their “continuing obligation”
19 immediately undertake remedial action to identify and remove architectural barriers.
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
17
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page22 of 49
1
46.
Each plaintiff seeks damages for violation of his/her civil rights for each of
2 their respective visits on June 19, 2008, June 23, 2008, July 22, 2008, October 30, 2010,
3 November 3, 2010, November 26, 2010 and February 3, 2011 and seeks statutory damages of not
4 less than $4,000, pursuant to Civil Code §52(a) or alternatively $1000 pursuant to Civil Code
5 §54.3, for each day after his/her visit that the trier of fact (court/jury) determines was the date that
6 some or all remedial work should have been completed under the standard that the landlord and
7 tenant had an ongoing duty to identify and remove architectural barriers where it was readily
8 achievable to do so, which deterred plaintiff IRMA RAMIREZ and plaintiff DAREN
9 HEATHERLY from returning to the subject public accommodation because of his/her knowledge
10 and/or belief that neither some or all architectural barriers had been removed and that said
11 premises remains inaccessible to persons with disabilities whether a wheelchair user or otherwise.
12
47.
On information and belief, defendants have been negligent in their affirmative
13 duty to identify the architectural barriers complained of herein and negligent in the removal
14 of some or all of said barriers.
15
48.
Because of defendants’ violations, each plaintiff and other persons with
16 physical disabilities are unable to use public facilities such as those owned and operated by
17 defendants on a “full and equal” basis unless such facility is in compliance with the
18 provisions of the Americans with Disabilities Act of 1990, Civil Code §54.1 and Health &
19 Safety Code §19955, et seq. and other accessibility law as plead herein. Each plaintiff seeks
20 an order from this court compelling defendants to make the SAM’S FOR PLAY CAFÉ
21 accessible to persons with disabilities.
22
49.
On information and belief, defendants have intentionally undertaken to modify
23 and alter existing building(s), and have failed to make them comply with accessibility
24 requirements under the requirements of ADAAG and California Building Code.
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
18
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page23 of 49
1 The acts and omission of defendants, and each of them, in failing to provide the required
2 accessible public facilities at the time of each plaintiff’s visit and injuries, indicate actual and
3 implied malice toward each plaintiff, and despicable conduct carried out by defendants, and
4 each of them, with a willful and conscious disregard for the rights and safety of each plaintiff
5 and other similarly situated persons, and justify a trebling of damages as provided by Civil
6 Code §§52(a) and 54.3, in order to make a more profound example of defendants, and each of
7 them, to other operators and landlords of other cafes and other public facilities, and to punish
8 defendants and to carry out the purposes of the Civil Code §§ 51, 51.5 and 54.
9
50.
Each plaintiff is informed and believes and therefore alleges that defendants
10 DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER TRUST, dated March 14,
11 2008; and DARLEEN SAM ANKER, an individual dba SAM’S FOR PLAY CAFÉ, and
12 each of them, caused the subject building(s) which constitute the SAM’S FOR PLAY CAFÉ
13 to be constructed, altered and maintained in such a manner that persons with physical
14 disabilities were denied full and equal access to, within and throughout said building(s) of the
15 SAM’S FOR PLAY and were denied full and equal use of said public facilities.
16 Furthermore, on information and belief, defendants have continued to maintain and operate
17 said café and/or its building(s) in such conditions up to the present time, despite actual and
18 constructive notice to such defendants that the configuration of SAM’S FOR PLAY and/or
19 its building(s) is in violation of the civil rights of persons with physical disabilities, such as
20 plaintiff IRMA RAMIREZ, plaintiff DAREN HEATHERLY and other members of the
21 disability community. Such construction, modification, ownership, operation, maintenance
22 and practices of such public facilities are in violation of Civil Code §§51, 51.5 and 54, Health
23 and Safety Code §19955, and the ADA, 42 U.S.C. §12101, et seq.
24 ///
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
19
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page24 of 49
1
51.
On personal knowledge, information and belief, the basis of defendants’ actual
2 and constructive notice that the physical configuration of the facilities including, but not
3 limited to, architectural barriers constituting the SAM’S FOR PLAY CAFÉ and/or
4 building(s) was in violation of the civil rights of persons with physical disabilities, such as
5 each plaintiff, includes, but is not limited to, communications with invitees and guests,
6 plaintiff IRMA RAMIREZ herself, sponsors of conferences owners of other restaurants,
7 hotels, motels and businesses, notices they obtained from governmental agencies upon
8 modification, improvement, or substantial repair of the subject premises and other properties
9 owned by these defendants, newspaper articles and trade publications regarding the
10 Americans with Disabilities Act of 1990 and other access laws, public service
11 announcements by former U.S. Attorney General Janet Reno between 1993 and 2000, and
12 other similar information. Defendants’ failure, under state and federal law, to make the
13 SAM’S FOR PLAY accessible is further evidence of defendants’ conscious disregard for the
14 rights of plaintiffs and other similarly situated persons with disabilities. Despite being
15 informed of such effect on each plaintiff and other persons with physical disabilities due to
16 the lack of accessible facilities, defendants, and each of them, knowingly and willfully
17 refused to take any steps to rectify the situation and to provide full and equal access for each
18 plaintiff and other persons with physical disabilities to the SAM’S PLAY CAFE. Said
19 defendants, and each of them, have continued such practices, in conscious disregard for the
20 rights of each plaintiff and other persons with physical disabilities, up to the date of filing of
21 this complaint, and continuing thereon. Defendants had further actual knowledge of the
22 architectural barriers referred to herein by virtue of the demand letter addressed to the
23 defendants and served concurrently with the summons and complaint. Said conduct, with
24 knowledge of the effect it was and is having on plaintiffs and other persons with physical
25 disabilities, constitutes despicable conduct in conscious disregard of the rights and safety of
26 each plaintiff and of other similarly situated persons, justifying the imposition of treble
27 damages per Civil Code §§52 and 54.3.
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
20
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page25 of 49
1
52.
Plaintiff IRMA RAMIREZ, plaintiff DAREN HEATHERLY and the
2 disability community, consisting of persons with disabilities, would, could and will return to
3 the subject public accommodation when it is made accessible to persons with disabilities.
4 I.
8
FIRST CAUSE OF ACTION FOR DENIAL OF ACCESS BY A PUBLIC
ACCOMMODATION IN VIOLATION OF THE AMERICANS WITH
DISABILITIES ACT OF 1990 (42 U.S.C. §12101, et seq.)
(On behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(42 U.S.C. §12101, et seq.)
9
53.
5
6
7
Plaintiffs replead and incorporate by reference, as if fully set forth again
10 herein, the allegations contained in paragraphs 1 through 52 of this complaint.
11
54.
Pursuant to law, in 1990, the United States Congress made findings per
12 42 U.S.C. §12101 regarding persons with physical disabilities, finding that laws were needed
13 to more fully protect:
14
some 43 million Americans with one or more physical or
mental disabilities; [that] historically society has tended to
isolate and segregate individuals with disabilities; [that] such
forms of discrimination against individuals with disabilities
continue to be a serious and pervasive social problem; [that]
the nation’s proper goals regarding individuals with disabilities
are to assure equality of opportunity, full participation,
independent living and economic self-sufficiency for such
individuals; [and that] the continuing existence of unfair and
unnecessary discrimination and prejudice denies people with
disabilities the opportunity to compete on an equal basis and to
pursue those opportunities for which our free society is
justifiably famous.
15
16
17
18
19
20
21
55.
Congress stated as its purpose in passing the Americans with Disabilities Act
22 of 1990 (42 U.S.C. §12102):
23
24
25
26
27
28
It is the purpose of this act (1) to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities; (2) to
provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal government plays a central role in
enforcing the standards established in this act on behalf of
individuals with disabilities; and (4) to invoke the sweep of
Congressional authority, including the power to enforce the
14th Amendment and to regulate commerce, in order to address
the major areas of discrimination faced day to day by people
with disabilities.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
21
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page26 of 49
1
56.
As part of the Americans with Disabilities Act of 1990, Public Law 101-336
2 (hereinafter the “ADA”), Congress passed “Title III - Public Accommodations and Services
3 Operated by Private Entities” (Section 301 42 U.S.C. §12181, et seq.). Among the public
4 accommodations identified for purposes of this title was:
5
(7)
PUBLIC ACCOMMODATION - The following private
entities are considered public accommodations for purposes of
this title, if the operations of such entities affect commerce -
6
7
---
8
(B) a restaurant, bar or other establishment serving food
or drink.
9
10
42 U.S.C. §12181(7)(B)
11
57.
Pursuant to §302, 42 U.S.C. §12182, “No individual shall be discriminated
12 against on the basis of disability in the full and equal enjoyment of the goods, services,
13 facilities, privileges, advantages, or accommodations of any place of public accommodation
14 by any person who owns, leases, or leases to, or operates a place of public accommodation.”
15 ///
16 ///
17 ///
18 ///
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
22
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page27 of 49
1
58.
The specific prohibitions against discrimination set forth in §302(b)(2)(a),
2 42 U.S.C. §12182(b)(2)(a) are:
3
(I)
the imposition or application of eligibility
criteria that screen out or tend to screen out an individual with
a disability or any class of individuals with disabilities from
fully and equally enjoying any goods, services, facilities,
privileges, advantages, or accommodations, unless such criteria
can be shown to be necessary for the provision of the goods,
services, facilities, privileges, advantages, or accommodations
being offered;
4
5
6
7
(ii)
a failure to make reasonable modifications in
policies, practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges,
advantages or accommodations to individuals with disabilities,
unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or
accommodations;
8
9
10
11
12
(iii) a failure to take such steps as may be necessary
to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that taking such
steps would fundamentally alter the nature of the good, service,
facility, privilege, advantage, or accommodation being offered
or would result in an undue burden;
13
14
15
16
(iv)
a failure to remove architectural barriers, and
communication barriers that are structural in nature, in existing
facilities . . . where such removal is readily achievable; and
17
18
(v)
where an entity can demonstrate that the
removal of a barrier under clause (iv) is not readily achievable,
a failure to make such goods, services, facilities, privileges,
advantages or accommodations available through alternative
methods if such methods are readily achievable.
19
20
21
22 The acts of defendants set forth herein were a violation of each plaintiff’s rights under the
23 ADA, Public Law 101-336, and the regulations promulgated thereunder, 28 CFR Part 36, et
24 seq. - Effective January 31, 1993, the standards of the ADA were also incorporated into
25 California Civil Code §51, making available the damage remedies incorporated into Civil
26 Code §51 and 52(a) and 54.3.
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
23
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page28 of 49
1
59.
The removal of the barriers complained of by plaintiffs as hereinabove alleged
2 were at all times after January 26, 1992 “readily achievable” as to the subject building(s) of
3 SAM’S FOR PLAY pursuant to 42 U.S.C. §12182 (b)(2)(A)(i)-(iv). On information and
4 belief, if the removal of all the barriers complained of herein together was not “readily
5 achievable,” the removal of each individual barrier complained of herein was “readily
6 achievable.” On information and belief, defendants’ failure to remove said barriers was
7 likewise due to discriminatory practices, procedures and eligibility criteria, as defined by 42
8 U.S.C. §12182 (b)(2)(A)(i)and (ii).
9
60.
Per 42 U.S.C. §12181 (9), the term “readily achievable” means “easily
10 accomplishable and able to be carried out without much difficulty or expense.” The statute
11 defines relative “expense” in part in relation to the total financial resources of the entities
12 involved. Each plaintiff alleges that properly repairing, modifying, or altering each of the
13 items that plaintiffs complains of herein were and are “readily achievable” by the defendants
14 under the standards set forth under §301(9) of the Americans with Disabilities Act.
15 Furthermore, if it was not “readily achievable” for defendants to remove each of such
16 barriers, defendants have failed to make the required services available through alternative
17 methods which were readily achievable.
18
61.
On information and belief, construction work on, and modifications of, the
19 subject building(s) of SAM’S FOR PLAY CAFÉ occurred after the compliance date for the
20 Americans with Disabilities Act, January 26, 1992, independently triggering access
21 requirements under Title III of the ADA.
22
62.
Pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §12188, et
23 seq., plaintiff is entitled to the remedies and procedures set forth in §204(a) of the Civil
24 Rights Act of 1964, 42 U.S.C. 2000(a)-3(a), as each plaintiff is being subjected to
25 discrimination on the basis of disability in violation of this title or have reasonable grounds
26 for believing that plaintiff is about to be subjected to discrimination in violation of §302.
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
24
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page29 of 49
1 Each plaintiff is deterred from returning to or making use of the public facilities complained
2 of herein so long as the premises and defendants’ policies bar full and equal use by persons
3 with physical disabilities.
4
63.
42 U.S.C. 12188 (a)(1) states: “Nothing in this section shall require a person
5 with a disability to engage in a futile gesture if such person has actual notice that a person or
6 organization covered by this title does not intend to comply with its provisions.” Pursuant to
7 this section, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each has not
8 returned to defendants’ premises since on or about February 3, 2011, but on information and
9 belief, alleges that defendants have continued to violate the law and deny the rights of each
10 plaintiff and of other persons with physical disabilities to access this public accommodation.
11 Pursuant to 42 USC §12188(a)(2), “In cases of violations of §302(b)(2)(A)(iv) . . . injunctive
12 relief shall include an order to alter facilities to make such facilities readily accessible to and
13 usable by individuals with disabilities to the extent required by this title.”
14
64.
Each plaintiff seeks relief pursuant to remedies set forth in §204(a) of the
15 Civil Rights Act of 1964 (42 U.S.C. 2000(a)-3(a)), and pursuant to federal regulations
16 adopted to implement the Americans with Disabilities Act of 1990, including but not limited
17 to an order granting injunctive relief and attorneys’ fees. Each plaintiff will seek attorneys’
18 fees conditioned upon being deemed to be the prevailing party.
19 II.
23
SECOND CAUSE OF ACTION FOR DENIAL OF FULL AND EQUAL
ACCESS IN VIOLATION OF CALIFORNIA CIVIL CODE §§54, 54.1 AND
54.3, ET SEQ.
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(California Civil Code §§54, 54.1, 54.3, et seq.)
24
65.
20
21
22
Plaintiffs replead and incorporate by reference as if fully set forth again herein,
25 the allegations contained in paragraphs 1 through 64 of this complaint.
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
25
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page30 of 49
1
66.
At all times relevant to this action, California Civil Code §54 has provided
2 that persons with physical disabilities are not to be discriminated against because of physical
3 handicap or disability. This section provides that:
4
(a) Individuals with disabilities . . . have the same rights
as the general public to full and free use of the streets,
highways, sidewalks, walkways, public buildings, medical
facilities, including hospitals, clinics, and physicians’ offices,
and other public places.
5
6
7
67.
California Civil Code §54.1 provides that persons with disabilities shall not be
8 denied full and equal access to places of public accommodation or facilities:
9
(a)(1) Individuals with disabilities shall be entitled to
full and equal access, as other members of the general public,
to accommodations, advantages, facilities, medical facilities,
including hospitals, clinics, and physicians’ offices, and
privileges of all common carriers, airplanes, motor vehicles,
railroad trains, motorbuses, streetcars, boats, or any other
public conveyances or modes of transportation (whether
private, public, franchised, licensed, contracted, or otherwise
provided), telephone facilities, adoption agencies, private
schools, hotels, lodging places, places of public
accommodation, amusement or resort, and other places to
which the general public is invited, subject only to the
conditions and limitations established by law, or state or federal
regulation, and applicable alike to all persons.
10
11
12
13
14
15
16
Civil Code §54.1(a)(1)
17
68.
California Civil Code §54.1 further provides that a violation of the Americans
18
with Disabilities Act of 1990 constitutes a violation of section 54.1:
19
(d) A violation of the right of an individual under the
Americans with Disabilities Act of 1990 (Public Law 101-336)
also constitutes a violation of this section, and nothing in this
section shall be construed to limit the access of any person in
violation of that act.
20
21
22
Civil Code §54.1(d)
23
69.
Plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each is a
24
person within the meaning of Civil Code §54.1 whose rights have been infringed upon and
25
violated by the defendants, and each of them, as prescribed by Civil Code §§54 and 54.1.
26
Each specific architectural barrier which defendants knowingly and willfully fail and refuse
27
to remove constitutes a separate act in violation of Civil Code §§54 and 54.1.
28
///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
26
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page31 of 49
1 Each plaintiff has been and continue to be denied full and equal access to defendants’ SAM’S
2 FOR PLAY CAFE. As a legal result, each plaintiff is entitled to seek damages pursuant to a
3 court or jury determination, in accordance with California Civil Code §54.3(a) for each day
4 on which he/she visited or have been deterred from visiting the cafe because of his/her
5 knowledge and belief that the subject cafe is inaccessible to persons with disabilities.
6 California Civil Code §54.3(a) provides:
7
Any person or persons, firm or corporation, who denies or
interferes with admittance to or enjoyment of the public
facilities as specified in Sections 54 and 54.1 or otherwise
interferes with the rights of an individual with a disability
under Sections 54, 54.1 and 54.2 is liable for each offense for
the actual damages and any amount as may be determined by a
jury, or the court sitting without a jury, up to a maximum of
three times the amount of actual damages but in no case less
than . . .one thousand dollars ($1,000) and . . . attorney’s fees as
may be determined by the court in addition thereto, suffered by
any person denied any of the rights provided in Sections 54,
54.1 and 54.2.
8
9
10
11
12
13
Civil Code §54.3(a)
14
70.
On or about October 30, 2010, November 3, 2010, November 26, 2010 and
15
February 3, 2011, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY on each
16
of their respective visits as stated herein suffered violations of Civil Code §§54 and 54.1 in
17
that plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each was denied access
18
to signage, parking, entrances, men’s restroom and women’s restroom and other public
19
facilities as stated herein at the SAM’S FOR PLAY CAFÉ and on the basis that plaintiff
20
IRMA RAMIREZ and plaintiff DAREN HEATHERLY each was a person with physical
21
disabilities.
22
71.
As a result of the denial of equal access to defendants’ facilities due to the acts
23
and omissions of defendants, and each of them, in owning, operating and maintaining these
24
subject public facilities, plaintiff IRMA RAMIREZ suffered violations of plaintiff’s civil
25
rights, including but not limited to rights under Civil Code §§54, 54.1 and 54.3.
26
27
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
27
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page32 of 49
1
72.
As a result of the denial of equal access to defendants’ facilities due to the acts
2 and omissions of defendants, and each of them, in owning, operating and maintaining these
3 subject public facilities, plaintiff DAREN HEATHERLY suffered violations of plaintiff’s
4 civil rights, including but not limited to rights under Civil Code §§54, 54.1 and 54.3.
5
73.
Further, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each
6 suffered mental distress, mental suffering, mental anguish, which includes shame,
7 humiliation, embarrassment, frustration, anger, disappointment and worry, all of which are
8 expectedly and naturally associated with a denial of access to a person with physical
9 disabilities, all to each plaintiff’s damages as hereinafter stated. Defendants’ actions and
10 omissions to act constituted discrimination against each plaintiff on the sole basis that each
11 plaintiff is a person or an entity that represents persons with physical disabilities and unable,
12 because of the architectural barriers created and maintained by the defendants in violation of
13 the subject laws, to use the public facilities hereinabove described on a full and equal basis as
14 other persons.
15
74.
Each plaintiff has been damaged by defendants’, and each of their, wrongful
16 conduct and seeks the relief that is afforded by Civil Code §§54 and 54.1, 54.3 for violation
17 of each plaintiff’s rights as a person or an entity that represents persons with physical
18 disabilities on or about October 30, 2010, November 3, 2010, November 26, 2010 and
19 February 3, 2011, and on a continuing basis since then, including statutory damages, a
20 trebling of all of actual damages, general and special damages available pursuant to §54.3 of
21 the Civil Code according to proof.
22
75.
As a result of defendants’, and each of their, acts and omissions in this regard,
23 each plaintiff has been required to incur legal expenses and hire attorneys in order to enforce
24 each plaintiff’s rights and enforce the provisions of the law protecting access for persons with
25 physical disabilities and prohibiting discrimination against persons with physical disabilities.
26 Pursuant to the provisions of Civil Code §54.3, each plaintiff therefore will seek recovery in
27 this lawsuit for all reasonable attorneys’ fees and costs incurred if deemed the prevailing
28 party.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
28
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page33 of 49
1 Additionally, plaintiffs’ lawsuit is intended not only to obtain compensation for damages to
2 plaintiffs, but also to compel the defendants to make their facilities accessible to all members
3 of the public with disabilities, justifying public interest attorneys’ fees, if deemed the
4 prevailing party, pursuant to the provisions of §1021.5 of the Code of Civil Procedure.
5 III.
6
7
8
9
10
THIRD CAUSE OF ACTION FOR DENIAL OF ACCESSIBLE SANITARY
FACILITIES IN VIOLATION OF HEALTH & SAFETY CODE §19955, ET.
SEQ.
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(Health & Safety Code §19955, et seq.)
76.
Plaintiffs replead and incorporate by reference, as if fully set forth again
11 herein, the allegations contained in paragraphs 1 through 75 of this complaint.
12
77.
13
Health & Safety Code §19955 provides in pertinent part:
The purpose of this part is to insure that public
accommodations or facilities constructed in this state with
private funds adhere to the provisions of Chapter 7
(commencing with Sec. 4450) of Division 5 of Title 1 of the
Government Code. For the purposes of this part “public
accommodation or facilities” means a building, structure,
facility, complex, or improved area which is used by the
general public and shall include auditoriums, hospitals,
theaters, restaurants, hotels, motels, stadiums, and convention
centers. When sanitary facilities are made available for the
public, clients or employees in such accommodations or
facilities, they shall be made available for the handicapped.
14
15
16
17
18
19
20
78.
Health & Safety Code §19956, which appears in the same chapter as §19955,
21 provides in pertinent part, “accommodations constructed in this state shall conform to the
22 provisions of Chapter 7 (commencing with Sec. 4450) of Division 5 of Title 1 of the
23 Government Code . . . .” Health & Safety Code §19956 was operative July 1, 1970, and is
24 applicable to all public accommodations constructed or altered after that date.
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
29
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page34 of 49
1 On information and belief, portions of the SAM’S FOR PLAY CAFÉ and/or of the
2 building(s) were constructed and/or altered after July 1, 1970, and substantial portions of the
3 subject café and/or the building(s) had alterations, structural repairs, and/or additions made to
4 such public accommodations after July 1, 1970, thereby requiring said cafe and/or building to
5 be subject to the requirements of Part 5.5, §19955, et seq., of the Health & Safety Code upon
6 such alteration, structural repairs or additions per Health & Safety Code §19959.
7
79.
Pursuant to the authority delegated by Government Code §4450, et seq, the
8 State Architect promulgated regulations for the enforcement of these provisions. Effective
9 July 1, 1982, Title 24 of the California Building Standards Code adopted the California State
10 Architect’s Regulations and these regulations must be complied with as to any alterations
11 and/or modifications of SAM’S FOR PLAY and/or the building(s) occurring after that date.
12 Construction changes occurring prior to this date but after July 1, 1970 triggered access
13 requirements pursuant to the “ASA” requirements, the American Standards Association
14 Specifications, A117.1-1961. On information and belief, at the time of the construction and
15 modification of said building, all buildings and facilities covered were required to conform to
16 each of the standards and specifications described in the American Standards Association
17 Specifications and/or those contained in the California Building Code.
18
80.
Cafes such as the SAM’S FOR PLAY are “public accommodations or
19 facilities” within the meaning of Health & Safety Code §19955, et seq.
20
81.
As a result of the actions and failure to act of defendants, and as a result of the
21 failure to provide proper and legally handicapped-accessible public facilities, each plaintiff
22 was denied plaintiff’s rights to full and equal access to public facilities and suffered a loss of
23 each plaintiff’s civil rights and each plaintiff’s rights as a person with physical disabilities to
24 full and equal access to public facilities.
25
26
27
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
30
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page35 of 49
1
82.
Attorneys’ Fees -- As a result of defendants’ acts and omissions in this regard,
2 each plaintiff has been required to incur legal expenses and hire attorneys in order to enforce
3 each plaintiff’s civil rights and enforce provisions of the law protecting access for the persons
4 with physical disabilities and prohibiting discrimination against the persons with physical
5 disabilities, and to take such action both in each plaintiff’s own interests and in order to
6 enforce an important right affecting the public interest. Each plaintiff, therefore, seeks in this
7 lawsuit the recovery of all reasonable attorneys’ fees incurred, pursuant to the provisions of
8 the Code of Civil Procedure §1021.5. Each plaintiff additionally seeks attorneys’ fees
9 pursuant to Health & Safety Code §19953 and Civil Code §§54.3 and/or in the alternative,
10 each plaintiff will seek attorneys’ fees, costs and litigation expenses pursuant to §204(a) of
11 the Civil Rights Act of 1964 (42 U.S.C. 200(a)-3(a)). Each plaintiff will seek attorneys’ fees
12 conditioned upon being deemed to be the prevailing party.
13
83.
Each plaintiff seeks injunctive relief for an order compelling defendants, and
14 each of them, to make the subject place of public accommodation readily accessible to and
15 usable by persons with disabilities.
16 IV.
17
18
19
20
21
84.
22
23
24
25
26
27
28
FOURTH CAUSE OF ACTION FOR DENIAL OF ACCESS TO FULL AND
EQUAL ACCOMMODATIONS, ADVANTAGES, FACILITIES, PRIVILEGES
AND/OR SERVICES IN VIOLATION OF CALIFORNIA CIVIL CODE §51,
ET SEQ. (THE UNRUH CIVIL RIGHTS ACT)
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(Civil Code §51, 51.5)
Plaintiffs replead and incorporate by reference, as if fully set forth again
herein, the allegations contained in paragraphs 1 through 83 of this complaint.
///
///
///
///
///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
31
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page36 of 49
1
85.
Defendants’ actions and omissions and failure to act as a reasonable and
2 prudent public accommodation in identifying, removing and/or creating architectural barriers,
3 policies, practices and/or procedures violates §51 of the Civil Code, the Unruh Civil Rights
4 Act. The Unruh Act provides:
5
This section shall be known, and may be cited, as the
Unruh Civil Rights Act.
6
All persons within the jurisdiction of this state are free
and equal, and no matter what their sex, race, color, religion,
ancestry, national origin, or disability are entitled to the full
and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever.
7
8
9
10
This section shall not be construed to confer any right
or privilege on a person that is conditioned or limited by law or
that is applicable alike to persons of every sex, color, race,
religion, ancestry, national origin, or disability.
11
12
Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction,
alteration, repair, or modification that is otherwise required by
other provisions of law, to any new or existing establishment,
facility, building, improvement, or any other structure . . . nor
shall anything in this section be construed to augment, restrict,
or alter in any way the authority of the State Architect to
require construction, alteration, repair, or modifications that the
State Architect otherwise possesses pursuant to other . . . laws.
13
14
15
16
17
18
A violation of the right of any individual under the
Americans with Disabilities Act of 1990 (Public Law 101-336)
shall also constitute a violation of this section.
19
20 As the Unruh Act incorporates violations of the Americans with Disabilities Act of 1990, the
21 “intent” of the defendants in not complying with barrier removal is not an issue.
22 Hence, the failure on the parts of defendants, as reasonable and prudent public
23 accommodations, in acting or failing to act to identify and remove barriers can be construed
24 as a “negligent per se” act of defendants, and each of them.
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
32
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page37 of 49
1
86.
The acts and omissions of defendants stated herein are discriminatory in
2 nature and in violation of Civil Code §51.5:
3
No business establishment of any kind whatsoever shall
discriminate against, boycott or blacklist, refuse to buy from,
sell to, or trade with any person in this state because of the race,
creed, religion, color, national origin, sex, or disability of the
person or of the person’s partners, members, stockholders,
directors, officers, managers, superintendents, agents,
employees, business associates, suppliers, or customers.
4
5
6
7
As used in this section, “person” includes any person,
firm association, organization, partnership, business trust,
corporation, limited liability company, or company.
8
9
Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction,
alteration, repair or modification that is otherwise required by
other provisions of law, to any new or existing establishment,
facility, building, improvement, or any other structure . . . nor
shall anything in this section be construed to augment, restrict
or alter in any way the authority of the State Architect to
require construction, alteration, repair, or modifications that the
State Architect otherwise possesses pursuant to other laws.
10
11
12
13
14
87.
Defendants’ acts and omissions as specified have denied each plaintiff full and
15
equal accommodations, advantages, facilities, privileges and services in a business
16
establishment, on the basis of physical disability, in violation of Civil Code §§51 and 51.5,
17
the Unruh Civil Rights Act. Furthermore, pursuant to the 1992 amendment to California
18
Civil Code §51, “A violation of the right of any individual under the Americans with
19
Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this
20
section.” Each plaintiff accordingly incorporates the entirety of his/her above cause of action
21
for violation of the Americans with Disabilities Act at ¶53, et seq., as if repled herein.
22
88.
As a result of the denial of equal access to defendants’ facilities due to the acts
23
and omissions of defendants, and each of them, in owning, operating and maintaining these
24
subject public facilities, plaintiff IRMA RAMIREZ suffered violations of plaintiff’s civil
25
rights, including but not limited to rights under Civil Code §§54, 54.1 and 54.3.
26
27
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
33
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page38 of 49
1
89.
As a result of the denial of equal access to defendants’ facilities due to the acts
2 and omissions of defendants, and each of them, in owning, operating and maintaining these
3 subject public facilities, plaintiff DAREN HEATHERLY suffered violations of plaintiff’s
4 civil rights, including but not limited to rights under Civil Code §§54, 54.1 and 54.3.
5
90.
Further, plaintiff IRMA RAMIREZ and plaintiff DAREN HEATHERLY each
6 suffered mental distress, mental suffering, mental anguish, which includes shame,
7 humiliation, embarrassment, frustration, anger, disappointment and worry, all of which are
8 expectedly and naturally associated with a denial of access to a person with physical
9 disabilities, all to each plaintiff’s damages as hereinafter stated. Defendants’ actions and
10 omissions to act constituted discrimination against each plaintiff on the sole basis that each
11 plaintiff is a person or an entity that represents persons with physical disabilities and unable,
12 because of the architectural barriers created and maintained by the defendants in violation of
13 the subject laws, to use the public facilities hereinabove described on a full and equal basis as
14 other persons.
15
91.
Plaintiff IRMA RAMIREZ and plaintiff IRMA RAMIREZ are entitled
16 to the rights and remedies of §52(a) of the Civil Code, including trebling of actual damages
17 (defined by §52(h) of the Civil Code to mean “special and general damages”), as well as to
18 reasonable attorneys’ fees and costs, as is allowed by statute, according to proof if deemed to
19 be the prevailing party.
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
34
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page39 of 49
1 PRAYER:
2
Plaintiffs pray that this court award damages and provide relief as follows:
3 I.
7
PRAYER FOR FIRST CAUSE OF ACTION FOR DENIAL OF ACCESS BY A
PUBLIC ACCOMMODATION IN VIOLATION OF THE AMERICANS
WITH DISABILITIES ACT OF 1990 (42 U.S.C. §1 2101, et seq.)
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff IRMA RAMIREZ, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(42 U.S.C. §12101, et seq.)
8
1.
4
5
6
For injunctive relief, compelling defendants DARLEEN SAM ANKER,
9 TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
10 ANKER, an individual dba SAM’S FOR PLAY CAFÉ, inclusive, to make the SAM’S FOR
11 PLAY CAFE, located at 1024 Sebastopol Road, Santa Rosa, California, readily accessible to
12 and usable by individuals with disabilities, per 42 U.S.C §12181, et seq., and to make
13 reasonable modifications in policies, practice, eligibility criteria and procedures so as to
14 afford full access to the goods, services, facilities, privileges, advantages and
15 accommodations being offered.
16
2.
For attorneys’ fees, litigation expenses and costs of suit, if plaintiffs are
17 deemed the prevailing party; and
18
3.
19 II.
PRAYER FOR SECOND CAUSE OF ACTION FOR DENIAL OF FULL AND
EQUAL ACCESS IN VIOLATION OF CALIFORNIA CIVIL CODE §§54, 54.1
AND 54.3, ET SEQ.
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(California Civil Code §§54, 54.1, 54.3, et seq.)
20
21
22
23
24
25
26
27
28
1.
For such other and further relief as the court may deem proper.
For injunctive relief, compelling defendants DARLEEN SAM ANKER,
TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
ANKER, an individual dba SAM’S FOR PLAY CAFÉ, inclusive, to make the SAM’S FOR
PLAY CAFE, located at 1024 Sebastopol Road, Santa Rosa, California, readily accessible to
and usable by individuals with disabilities, per state law.
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
35
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page40 of 49
1
2.
Statutory damages as afforded by Civil Code §54.3 for the date of incident and
2 for each occasion on which plaintiffs were deterred from returning to the subject public
3 accommodation.
4
3.
Attorneys’ fees pursuant to Civil Code §54.3 and Code of Civil Procedure
5 §1021.5, if plaintiffs are deemed the prevailing party;
6
4.
Treble damages pursuant to Civil Code §54.3;
7
5.
General damages according to proof;
8
6.
For all costs of suit;
9
7.
Prejudgment interest pursuant to Civil Code §3291; and
10
8.
Such other and further relief as the court may deem just and proper.
11 III.
15
PRAYER FOR THIRD CAUSE OF ACTION FOR DENIAL OF ACCESSIBLE
SANITARY FACILITIES IN VIOLATION OF HEALTH & SAFETY CODE
§19955, ET. SEQ.
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(Health & Safety code §19955, et seq.)
16
1.
12
13
14
For injunctive relief, compelling defendants DARLEEN SAM ANKER,
17 TRUSTEE, THE D. SAM ANKER TRUST, dated March 14, 2008; and DARLEEN SAM
18 ANKER, an individual dba SAM’S FOR PLAY CAFÉ, inclusive, to make the SAM’S FOR
19 PLAY CAFE, located at 1024 Sebastopol Road, Santa Rosa, California, readily accessible to
20 and usable by individuals with disabilities, per state law.
21
2.
For attorneys’ fees pursuant to Code of Civil Procedure §1021.5, and/or,
22 alternatively, Health & Safety Code §19953, if plaintiffs are deemed the prevailing party;
23
3.
For all costs of suit;
24
4.
For prejudgment interest pursuant to Civil Code §3291;
25
5.
Such other and further relief as the court may deem just and proper.
26 ///
27 ///
28 ///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
36
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page41 of 49
1 IV.
2
3
4
5
6
PRAYER FOR FOURTH CAUSE OF ACTION FOR DENIAL OF ACCESS
TO FULL AND EQUAL ACCOMMODATIONS, ADVANTAGES,
FACILITIES, PRIVILEGES AND/OR SERVICES IN VIOLATION OF
CALIFORNIA CIVIL CODE §51, ET SEQ. (THE UNRUH CIVIL RIGHTS
ACT)
(On Behalf of Plaintiff IRMA RAMIREZ and Plaintiff DAREN HEATHERLY, and
Against Defendants DARLEEN SAM ANKER, TRUSTEE, THE D. SAM ANKER
TRUST, dated March 14, 2008; and DARLEEN SAM ANKER, an individual dba
SAM’S FOR PLAY CAFÉ, inclusive)
(California Civil Code §§51, 51.5, et seq.)
7
1.
8
9
10
and for each occasion on which plaintiffs were deterred from returning to the subject public
accommodation;
2.
11
12
3.
18
19
20
21
22
23
24
25
26
27
28
Treble damages pursuant to Civil Code §52(a);
5.
15
General damages according to proof;
4.
14
17
Attorneys’ fees pursuant to Civil Code §52(a), if plaintiffs are deemed the
prevailing party;
13
16
All statutory damages as afforded by Civil Code §52(a) for the date of incident
For all costs of suit;
///
///
///
///
///
///
///
///
///
///
///
///
///
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
37
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page42 of 49
1
6.
Prejudgment interest pursuant to Civil Code §3291; and
2
7.
Such other and further relief as the court may deem just and proper.
3
4 Dated: July 26, 2012
THOMAS E. FRANKOVICH,
A PROFESSIONAL LAW CORPORATION
5
6
By: ___/s/Thomas E. Frankovich_________________
THOMAS E. FRANKOVICH
Attorney for Plaintiff IRMA RAMIREZ and Plaintiff
DAREN HEATHERLY,
7
8
9
10
11
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury for all claims for which a jury is permitted.
12
13
14 Dated: July 26, 2012
THOMAS E. FRANKOVICH,
A PROFESSIONAL LAW CORPORATION
15
16
17
18
By: ___/s/Thomas E. Frankovich__________________
THOMAS E. FRANKOVICH
Attorney for Plaintiff IRMA RAMIREZ and Plaintiff
DAREN HEATHERLY
19
20
21
22
23
24
25
26
27
28
[PROPOSED] FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
CASE NO. CV-11-1370-JSW
38
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page43 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page44 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page45 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page46 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page47 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page48 of 49
Case3:11-cv-01370-JSW Document17 Filed08/17/12 Page49 of 49
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