Court Overturns $1 Award For Lack of Supporting Evidence
By STEVEN M. ELLIS, Staff Writer
It is error to award even nominal damages for disability discrimination in the absence of proof of intentionally discriminatory conduct, the Los Angeles Superior Court Appellate Division has ruled.
The court, on Jan. 9, overturned a $1 damage award to Shawn Monroe and Karl Rountree, saying they were not entitled to automatic damages under Civil Code Sec. 52(a) for violations of the Americans With Disabilities Act of 1990 in the restroom of Gheorghe Comboiano’s Hollywood restaurant because they could not show that Comboiano intended to discriminate against them
The plaintiffs’ attorney, Morse Mehrban, could not be reached for comment.
The men, both of whom are paraplegics and dependent upon their wheelchairs for mobility, filed suit against Comboiano in state court in 2006 under the Unruh Civil Rights Act, which prohibits discrimination on the basis of disability and creates a state cause of action for violations of the federal act.
They alleged that Comboiano had discriminated against them because the restroom mirror at Combo’s Pizza was mounted too high for them to use to “preen” themselves, and because the underside of the restroom sink was not insulated, subjecting them to the risk of scalding their legs on its pipes.
Claiming that their inability to use the mirror and sink had caused them to each to suffer “humiliation, anger, frustration, distress, embarrassment, and disgust,” they sought automatic minimum damages under the Unruh Act of $4,000 for each violation, along with $3,000 in costs and attorney’s fees.
After a default was entered against Comboiano, the trial court entered default judgment in favor of the plaintiffs. However, it court awarded plaintiffs only $1 in damages, holding that the minimum automatic damages provision was not applicable because they had failed to set forth a prima facie case.
The plaintiffs appealed, contending that the trial court had erred in failing to award automatic damages and fees and costs.
However, in an opinion by Judge Anita H. Dymant, the appellate division held that the trial court’s only error was in awarding the plaintiffs even $1.
Citing the decision of the Fourth District Court of Appeal in Gunther v. Lin (2006) 144 Cal.App.4th 223, where the court rejected a “strikingly similar” argument by another of Mehrban’s clients that a restaurant restroom mirror was placed too high and sink pipes left uninsulated, Dymant pointed out that the plaintiffs had not satisfied their obligation to allege actual discrimination in the pleadings that led to the default judgment.
“Appellants did not… allege any intentionally discriminatory conduct by respondent, either in the complaint or the declarations filed in support of the request for default judgment,” she wrote. “By choosing to pursue their claims for damages under section 52 rather than section 54.3, [plaintiffs] were required to plead and prove intentional discrimination. Having done neither, [plaintiffs] were not entitled to any damages, including statutory damages under section 52.”
Dymant similarly concluded that the plaintiffs’ failure to show a discriminatory intent or to establish a prima facie case left them unentitled to attorney’s fees or an award of costs as the prevailing party.
She was joined in her opinion by Presiding Judge Patti Jo McKay and Judge Debre K. Weintraub.
The decision marked a defeat for Mehrban, who as counsel for the group Consumer Cause has filed or threatened to file numerous lawsuits under state laws—such as the unfair competition law, Business and Professions Code Sec. 17200, and the toxics control statute, Proposition 65—that permit any member of the public to bring suit.
The organization has been described by one law firm whose clients were among those targeted as a “Proposition 65 bounty-hunter,” and its practice of sending out massive numbers of notices of intent to sue, then settling for donations plus attorney fees, was described by a Court of Appeal justice as “a form of judicial extortion.”
The case is Monroe v. Comboiano, BV 027105.
Copyright 2008, Metropolitan News Company