Wednesday, January 9, 2019
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San Bernardino Superior Court Appellate Division:
Restaurant’s Refusal to Provide Hearing Aid Wasn’t Discrimination in Violation of Law
By a MetNews Staff Writer
The San Bernardino Superior Court’s Appellate Division has rejected a man’s contention that a restaurant discriminated against him by not providing him with a listening device so he could enjoy the background music, declaring that the music was not central to the restaurant’s services.
The opinion, filed in November and certified for publication in December, was posted on the California Courts website yesterday.
Plaintiff Christopher Martinez, who is hard of hearing, sued California Pizza Kitchen, Inc. (“CPK”), claiming that it discriminated against him in violation of the state’s Unruh Civil Rights Act by not providing him with an assistive listening device upon his request. Martinez has difficulty differentiating certain sounds and was unable to enjoy the background music during a September 2017 visit to a CPK location.
San Bernardino Superior Court Judge Michael M. Dest agreed with CPK that it was only required to provide assistive devices for communicating information under the Americans with Disabilities Act (“ADA”), the federal law upon which Martinez had predicated his Unruh Act claim.
The judge sustained CPK’s demurrer without leave to amend after the plaintiff chose to proceed with the allegations as pled; a judgment of dismissal followed.
ADA Violation Requirements
The opinion notes that Martinez, to allege the ADA violation, would need to show that “(1) he has a disability; (2) CPK’s facility is a place of public accommodation; and (3) he was denied full and equal treatment because of his disability on a particular occasion.”
The parties focused on the third element of the claim. Martinez relied on a 2011 unpublished opinion from the Fourth U.S. Circuit Court of Appeals in Feldman v. Pro Football, Inc.
In that case, the court found that a professional football stadium should have provided an assistive listening device to a hard-of-hearing fan in attendance, so he could listen to the information broadcast over the stadium’s sound system during the game.
The opinion posted yesterday notes that the Feldman court acknowledged that, while the information provided to football fans over the stadium speakers is important for their enjoyment of the game, the ADA doesn’t “impart guidance on the specific content that places of public accommodation must communicate to individuals who are deaf or hard of hearing.”
‘Restaurant and Bar’
It continues:
“Martinez primarily alleges that CPK operates a ‘restaurant and bar.’ This is important since, as noted above, the ADA requirements are context-specific.…To the extent CPK provided food, drink, and the hospitality services normally associated with restaurants, Martinez has failed to state a valid claim since his suit does not relate to the unequal enjoyment of those goods and services.
“As for Martinez’ assertion that CPK was playing music over the speaker system, there are no specific facts alleged to support the conclusion that the music was part of the overall goods, services, etc., being offered by CPK for the use and enjoyment of its patrons.…In fact, there are no allegations indicating anything was broadcast over the speaker system other than music.”
The opinion adds:
“By referencing ‘aurally delivered’ as opposed to ‘orally delivered’ the ADA is meant to include nonverbal sounds, alarms, and computer-generated speech….However, as the implementing regulations suggest, one is denied full and equal enjoyment of goods, services, and the like when, due to a disability and the lack of auxiliary aids, there is an absence of effective communication relating to those goods and services. Absent some additional or unique facts, which Martinez conceded he could not allege, the music on CPK’s speaker system was not part of an overall entertainment experience as was the case in Feldman.”
The case is Martinez v. California Pizza Kitchen, Inc., ACIAS1800020.
Sole practitioner Morse Mehrban of Encino represented Martinez. James S. Link of Baraban & Teske argued for CPK.
The case was filed in December 2017. Over the next few months, Martinez, represented by Mehrban, brought several other civil rights actions against various defendants in Los Angeles and the surrounding areas, most of which are still pending.
On March 15, 2013, KABC-TV reported that Alfred Garcia, an illegal alien and convicted felon, “has filed at least 615 lawsuits involving the Americans with Disabilities Act, and taxpayers are paying for them,” adding: “Mehrban has filed every one of Garcia’s more than 600 ADA lawsuits, and his firm assists in the filing of Garcia’s fee waiver applications.”
On May 20, 2010, Los Angeles Judge Anna Maria Luna ordered Mehrban to pay $28,581.87 in sanctions in connection with an ADA action he brought on behalf of a client against a restaurant without investigating its defenses.
The Court of Appeal for this district on Aug. 4, 2006, affirmed an order imposing $20,000 in sanctions on Mehrban for 20 violations of the Unfair Competition Law in connection with securing securing settlements under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) without reporting the violations to the Office of Attorney General.
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