Friday, April 19, 2019
Page 1
Court of Appeal:
Probable Cause Lacking for ADA Action Against Man With Interest in Business
Judgment for Lawyer, Client in Malicious Prosecution Suit Against Them Reversed
By a MetNews Staff Writer
The Court of Appeal has reversed a defense judgment in favor of a Tarzana attorney and his client in an action for malicious prosecution, holding that the trial judge erred in finding that there was probable cause for the underlying discrimination action against a man based on his financial interests in pub from which a disabled person was ejected.
Div. Five, in Wednesday’s unpublished opinion by Justice Dorothy C. Kim, reversed a judgment awarded by Los Angeles Superior Court Judge Howard L. Halm to Nicolas Supancic, who sued for discrimination, and his lawyer, Morris Getzels, who specializes in civil rights cases. The opinion agrees with the contention of the plaintiff in the malicious prosecution action, Encino attorney Douglas G. Turner, that probable cause was lacking for including him in the suit for discrimination.
Turner held a 50 percent interest in Harte LLC which owned and operated the White Harte Public House on Ventura Boulevard in Woodland Hills. The limited liability company had been formed in 2006 by Turner and Pierre Behzad Moeini, a car dealer, to purchase the British-style pub, and they together bought the real property upon which it is situated.
Alleged Discriminatory Action
On March 13, 2012, according to allegations of a Superior Court complaint filed by Getzels on behalf of Supancic, Moeini forced Supancic to leave the pub because he was accompanied by a service dog and, outside the bar/restaurant, berated him and told him that “faggots” were not welcome on the premises. The complaint alleged a violation of the federal Americans with Disabilities Act, as well as setting forth state causes of action.
Named as defendants were Moeini, his wife (who shared his ownership interest), Golriz Moeini, Turner, and the pub. The complaint alleged that all acts by Moeinis and Turner “with regard to the White Harte” were “done on behalf of the others.”
By May 2014, Turner was the sole remaining defendant. A November 26, 2014 first amended complaint added an allegation that sought to impose liability under the ADA based on Turner’s status as an owner and landlord.
Los Angeles Superior Court Judge Maureen Duffy-Lewis granted summary judgment to Turner and Div. Five, in a July 7, 2016 opinion, affirmed. The author was Michael J. Raphael, then a Los Angeles Superior Court judge sitting on assignment, now a member of the Fourth District Court of Appeal’s Div. Two.
Raphael’s 2016 Opinion
On appeal, Supancic’s sole contention was that Turner was liable under the ADA—directly liable based on being an owner/landlord of the premises as well as being vicariously liable.
In connection with direct liability, Raphael wrote:
“We hold that the trial court did not err in granting summary judgment because, under the ADA and its implementing regulations, defendant did not have direct liability to plaintiff based solely on his status as the owner and lessor of the public accommodation in which the alleged disability discrimination occurred.”
He pointed to a Department of Justice regulation that provides:
“A landlord incurs liability only if the landlord implements a discriminatory policy, practice, or procedure.”
Raphael said Supancic alleged no breach by Turner and “predicated his theory of direct liability on the alleged fact of the violation and defendant’s mere ownership of the real property.”
The jurist added:
“Plaintiff does not and cannot articulate a viable theory of vicarious liability, such as agency, against defendant, who has an ownership interest in an limited liability company that runs the White Harte.”
Kim’s Opinion
Explaining the reversal of Halm’s judgment in favor of Getzels and his client, Kim said, with respect to direct liability, that “the ADA regulations do not support a finding of probable cause” for the reasons stated by Raphael.
She provided this discussion:
“Defendants counter that the owner/lessor theory of direct liability pleaded was supported by probable cause because, among other things, ‘Getzels had properly obtained similar liability payments from landlords under this same theory of liability.’ Although Getzels’s ability to obtain payments from other landlords may be relevant to the separate element of malice, it is irrelevant to our analysis of probable cause.”
As to vicarious liability, Kim declared:
“It is undisputed that for two years, Supancic and Getzels pursued ten causes of action against Turner individually under a vicarious liability theory based on partnership and agency allegations. They persisted in pursuing that theory despite the fact that Turner’s only interest in the White Harte Pub was as a member of the limited liability company that owned and operated the business, Harte LLC. Under Corporations Code section 17703.04, subdivision (a)…a member of a limited liability company has no personal liability for the debts, obligations, or other liabilities of the company….[A]ny reasonable attorney would agree that Supancic and Getzels’s agency theory of liability against Turner was completely without merit.”
Remanded for Determinations
Kim’s opinion remands the case for a determination—which Halm said he saw no need to make, given his view that probable cause supported the action against Turner—as to the issues of whether there was a favorable determination as to all causes of action and malice.
Getzels commented late Wednesday: “There was probable cause.”
He asserted that the Court of Appeal “did not follow the law on probable cause, which exists unless all reasonable attorneys agree that the case is without merit.”
The opinion came in Turner v. Getzels, B289264.
Turner represented himself in appeal, as did Supancic, a non-attorney. Steven R. Yee and Eric O. Zeiger of Yee & Associates acted for Getzels.
Turner and Moeini had a parting of ways, resulting in litigation, appointment of a receiver, and an unpublished opinion from Div. Five.
Copyright 2019, Metropolitan News Company