Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-260426-LPE. Louis P. Etcheverry, Judge.
Law Offices of M. Mehrban, Javier Ramirez and Morse Mehrban for Defendants and Appellants.
Kharazi & Sirabian and H. Ty Kharazi for Plaintiff and Respondent.
OPINION
Levy, J.
Appellant, Karl Rountree, filed a disability discrimination complaint against respondent, Chase, Inc., alleging that Chase failed to accommodate him in violation of the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) and the Americans with Disabilities Act (42 U.S.C. § 12101, et seq.) According to Rountree, architectural barriers in the public restroom at Chase’s gas station prevented the mirror and the sink from being wheelchair accessible. Rountree did not participate in a scheduled arbitration hearing and thereafter voluntarily dismissed his complaint.
Chase then filed the underlying complaint for malicious prosecution against Rountree and appellant Morse Mehrban, Rountree’s counsel in the former action. Chase alleged that Rountree’s lawsuit was initiated without probable cause and with a “malicious and despicable intent.” According to Chase, the complaint was “simply part of an ongoing predatory scheme by [appellants] to extort money from California small businesses for their own personal gain by abusing a statutory scheme that is designed for corrective action not monetary rewards.”
Appellants responded by filing a motion to strike the malicious prosecution complaint as a SLAPP (strategic lawsuits against public participation) suit under Code of Civil Procedure section 425.16. Appellants argued that, because the malicious prosecution complaint arose out of their disability discrimination action, it fell within the ambit of the anti-SLAPP statute. They further asserted that Chase could not establish that the disability discrimination lawsuit was filed without probable cause and with malice and therefore Chase could not demonstrate a probability of prevailing on the merits of the malicious prosecution action.
The trial court found that the malicious prosecution complaint arose from a protected activity and that appellants had therefore met the first requirement for dismissal of the action. However, the trial court also concluded that Chase had stated and substantiated a legally sufficient claim for malicious prosecution. Consequently, the court denied appellants’ motion to strike and imposed sanctions against them.
Appellants contend the trial court erred in concluding that Chase met its burden of establishing a probability that it would prevail on the malicious prosecution complaint. The primary focus of appellants’ position is that Chase failed to prove Rountree filed the disability discrimination complaint without probable cause. As discussed below, appellants are correct. Accordingly, the order denying appellants’ motion to strike the complaint and imposing sanctions will be reversed.
DISCUSSION
1. The anti-SLAPP statute.
Code of Civil Procedure section 425.16 was enacted in 1992 to provide a procedure for expeditiously resolving “nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue.” (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It is California’s response to meritless lawsuits brought to harass those who have exercised these rights. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.) This type of suit, referred to under the acronym SLAPP, or strategic lawsuits against public participation, is generally brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 927.)
When served with a SLAPP suit, the defendant may immediately move to strike the complaint under Code of Civil Procedure section 425.16. To determine whether this motion should be granted, the trial court must engage in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.)
The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 76.) The moving defendant must demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue .…” (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the court concludes that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
To establish the requisite probability of prevailing, the plaintiff need only have “‘“stated and substantiated a legally sufficient claim.”’” (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) “‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’” (Id. at pp. 88-89.) The plaintiff need only establish that its claim has minimal merit to avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) Nevertheless, a plaintiff cannot simply rely on its pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 614.)
The questions of whether the action is a SLAPP suit and whether the plaintiff has shown a probability of prevailing are reviewed independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
Here, the parties do not dispute that the malicious prosecution action arose from a protected activity. Thus, the issue is whether Chase demonstrated a probability of prevailing on its claim.
2. Chase failed to establish that Rountree lacked probable cause to bring his disability discrimination action and thus did not establish the probability of prevailing on its malicious prosecution claim.
“To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.” (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.) Thus, lack of probable cause is an essential element of a malicious prosecution cause of action. (Copenbarger v. International Ins. Co. (1996) 46 Cal.App.4th 961, 964.)
Whether probable cause exists is a legal question and is determined objectively, i.e., without reference to whether the attorney who brought the prior action believed the case was tenable. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.) Rather, the standard of probable cause to bring a civil suit is equivalent to that for determining the frivolousness of an appeal. (Ibid.) Thus, probable cause exists if “‘any reasonable attorney would have thought the claim tenable.’” (Ibid.) In other words, to form the basis for a malicious prosecution suit, the action must be totally and completely without merit. “This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’” (Ibid.) Accordingly, if no reasonable attorney would have found Rountree’s disability discrimination claim to be totally and completely without merit, Chase cannot prevail on its malicious prosecution cause of action.
As noted above, Rountree alleged that the mirror and the sink in Chase’s restroom were not wheelchair accessible in violation of the Unruh Civil Rights Act (Unruh Act) and the Americans with Disabilities Act (ADA). In his deposition, Rountree testified that he is a paraplegic and unable to walk. Rountree further testified that when he stopped at Chase’s gas station on January 13, 2006, he could not use the sink in the restroom because the pipes were not properly insulated. An ADA expert opined that Chase’s facility was in violation of the ADA at that time.
The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182 (a).) In the disability context, the Unruh Act operates virtually identically to the ADA except the Unruh Act allows for damages with a minimum penalty of $4,000. (Civ. Code, §§ 51, subd. (f) and 52; Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 731.) Similarly, a violation of the ADA in California also constitutes a violation of the Disabled Persons Act (DPA) and allows for monetary damages, albeit in a lower minimum amount of $1,000. (Civ. Code, §§ 54.1 and 54.3.)
To prevail on his discrimination claim, Rountree was required to show that (1) he is disabled within the meaning of the ADA; (2) Chase is a private entity that owns, leases or operates a place of public accommodation; and (3) Rountree was denied public accommodation by Chase because of his disability. (Molski v. M.J. Cable, supra, 481 F.3d at p. 730.)
Rountree testified that he is a paraplegic. As such, Rountree falls within the definition of disabled under the ADA. (Molski v. M.J. Cable, Inc., supra, 481 F.3d at p. 732.) Further, it is undisputed that Chase’s gas station was a place of public accommodation. Thus, if Chase denied Rountree public accommodation because of his disability, Rountree’s complaint stated a claim under the ADA.
Discrimination under the ADA in a place of public accommodation includes “a failure to remove architectural barriers … where such removal is readily achievable.” (42 U.S.C. § 12182 (b)(2)(A)(iv).) Architectural barriers that can be removed easily and without much difficulty or expense, include “Insulating lavatory pipes under sinks to prevent burns” and “Installing a full-length bathroom mirror.” (28 C.F.R. § 36.304(b)(14) and (16).)
An ADA violation occurs when a disabled person is denied full access to the defendant’s services. It does not require full exclusion from such services. (Hubbard v. Rite Aid Corp. (S.D.Cal. 2006) 433 F.Supp.2d 1150, 1170.) Further, the discrimination occurs as soon as the disabled person encounters an architectural barrier. (Parr v. L & L Drive-Inn Restaurant (D.Hawaii 2000) 96 F.Supp.2d 1065, 1081.) Accordingly, Rountree’s allegation that he was unable to use the sink and mirror in Chase’s restroom due to his disability stated a claim under the ADA. As noted above, a violation of the ADA also constitutes a violation of the Unruh Act and the DPA. (Civ. Code, §§ 51, subd. (f) and 54.1, subd. (d).)
In response to Rountree’s anti-SLAPP motion, Chase argued it had demonstrated a probability of prevailing on the “brought without probable cause” element of its malicious prosecution cause of action in three ways. First, Chase asserted there was no showing that Rountree was injured. Second, Chase noted it had alleged that Rountree was not disabled and had not attempted to use the bathroom in question. Finally, Chase argued that, pursuant to the case of Gunther v. Lin (2006) 144 Cal.App.4th 223, Rountree was required to prove the alleged discrimination was intentional before he could recover damages for Unruh Act violations.
Under the Unruh Act, a litigant need not prove he suffered actual damages to recover the statutory damages. (Civ. Code, § 54, subd. (a); Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33-34.) Thus, Rountree did not need to show he was injured to state a disability discrimination cause of action.
Further, in response to an anti-SLAPP motion to strike, the plaintiff cannot rely on its pleadings, even if verified, to establish a probability of prevailing on the merits. Rather, the plaintiff must adduce competent, admissible evidence. (Roberts v. Los Angeles County Bar Assn., supra, 105 Cal.App.4th at pp. 613-614.) Since Chase did not proffer any evidence to support its allegations that Rountree was not disabled and did not ever attempt to use Chase’s restroom, these allegations do not support Chase’s assertion that Rountree brought his disability discrimination claim without probable cause.
Finally, although Gunther v. Lin, supra, 144 Cal.App.4th 223 holds that a plaintiff cannot recover under the Unruh Act without proof that the defendant engaged in intentional discrimination, it cannot be said that, at the time Rountree filed his complaint, no reasonable attorney would have found his disability discrimination claim to be totally and completely without merit. In Gunther v. Lin, supra, the court concluded that, contrary to the plaintiff’s position, the 1992 amendment to Civil Code section 51 that incorporated ADA violations into the Unruh Act did not extend the reach of the Unruh Act penalties to unintentional ADA violations. However, Gunther v. Lin, supra, was not decided until October 2006, approximately seven months after Rountree filed his complaint. Rountree dismissed his complaint while a petition for review was pending in the California Supreme Court.
Moreover, before Gunther, federal courts had been interpreting the 1992 amendment to Civil Code section 51 as having eliminated the intent requirement. (Lentini v. California Center for the Arts (9th Cir. 2004) 370 F.3d 837.) In fact, a federal district court concluded “In short, Gunther held what every other court before it has rejected: that proof of intent is required to collect damages for disability discrimination under the Unruh Act, which authorizes a minimum of $4,000 per violation.” (Wilson v. Haria and Gogri Corp. (E.D.Cal. 2007) 479 F.Supp.2d 1127, 1136.)
Accordingly, while it is clear that Rountree could not recover Unruh Act damages for Chase’s ADA violations under current California law, such was not the case when he filed his complaint in March 2006. Therefore, Rountree had probable cause to bring his disability discrimination action, i.e., the action was not totally and completely without merit. Since Rountree had probable cause to file his complaint, Chase’s malicious prosecution action fails, whether or not there is evidence that Rountree’s prior suit was maliciously motivated. (Sheldon Appel Co. v. Albert & Oliker (1989)47 Cal.3d 863, 875.) Thus, appellants’ Code of Civil Procedure section 425.16 motion to strike Chase’s complaint should have been granted.
DISPOSITION
The order denying appellants’ motion to strike the complaint and imposing sanctions is reversed with directions to the superior court to enter a new order granting the Code of Civil Procedure section 425.16 motion to strike. Appellants’ motion for sanctions against respondent on appeal is denied. Costs on appeal are awarded to appellants.
WE CONCUR:Vartabedian, Acting P.J., Cornell, J.