Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County. Michael L. Stern, Judge.
Law Offices of Morse Mehrban, Morse Mehrban and Rummel Mor Bautista for Plaintiff and Appellant.
Law Office of Christopher Sutton and Christopher Sutton for Defendant and Respondent.
ASHMANN-GERST, J.
Thomas Mundy (Mundy) appeals (1) the judgment in favor RLA Properties, LLC (RLA) on Mundy’s complaint and (2) the subsequent order awarding RLA its attorney fees. We affirm the judgment in favor of RLA. However, the postjudgment order awarding attorney fees must be reversed.
FACTS
RLA owns a restaurant. Mundy sued RLA for failing to provide a designated van-accessible handicap parking spot with a 96-inch wide access aisle in violation of the Disabled Persons Act (DPA). He requested $4,000 in statutory damages and injunctive relief. In its case management statement, RLA stated that its parking lot had been restriped and certified as compliant with state law. Mundy conceded that his claim for injunctive relief was moot. The case proceeded to a bench trial regarding the claim for statutory damages.
“Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to 55.3, is commonly referred to as the ‘Disabled Persons Act, ’ although it has no official title. [Citations.]” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674, fn. 8.) “Sections 54 and 54.1 generally guarantee individuals with disabilities equal access to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation.” (Munson v. Del Taco, Inc., supra, at p. 674, fn. 8.)
Mundy testified that he is a paraplegic and confined to a wheelchair. On November 6, 2009, at about 2:00 p.m. he attempted to go to RLA’s restaurant, which is a hamburger place, for lunch. He was driving a minivan which has an electric ramp that extends outward 48 inches. To get off the ramp, he needs a total of 96 inches. According to Mundy, he was unable to park because the access aisle was not large enough to accommodate his ramp. When he returned to the restaurant at a later date, he saw a new handicap parking space with an 96-inch wide aisle.
Judgment was entered for RLA. Mundy appealed.
RLA filed a motion for attorney fees based on Civil Code section 55. The trial court granted the motion and awarded $7,025. Thereafter, Mundy filed his second appeal.
All further statutory references are to the Civil Code unless otherwise indicated.
STANDARD OF REVIEW
Questions of law are subject to de novo review. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083.) With respect to findings of fact, we apply the substantial evidence test. (People v. Foster (2010) 50 Cal.4th 1301, 1349.) In other words, we will uphold findings of fact if they are supported by evidence that is reasonable, credible and of solid value. “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We are required to resolve evidentiary conflicts in favor of the judgment. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) A reviewing court will not disturb a trial court’s award of attorney fees under section 55 absent an abuse of discretion. (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 790.) The determination of whether a party is the prevailing party for purposes of a fee shifting statute is reviewed under that same standard. (Heather Farms Homeowners Assn., Inc. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)
DISCUSSION
1. The judgment.
The request for a permanent injunction was moot by the time Mundy’s case went to trial. Assuming for the sake of argument that RLA violated the DPA, the remaining issue is whether Mundy was entitled to recover damages. Mundy offered no evidence of actual damages. Rather, he requested $4,000 in statutory damages. (§§ 52, subd. (a), 55.56, subd. (a).) Mundy contends that the judgment against him—and therefore the trial court’s decision to deny him statutory damages—was not supported by substantial evidence. We disagree.
Section 55.56, subdivision (d) of the DPA provides: “A plaintiff demonstrates that he or she was deterred from accessing a place of public accommodation on a particular occasion only if both of the following apply: [¶] (1) The plaintiff had actual knowledge of a violation or violations that prevented or reasonably dissuaded the plaintiff from accessing a place of public accommodation that the plaintiff intended to use on a particular occasion. [¶] (2) The violation or violations would have actually denied the plaintiff full and equal access if the plaintiff had accessed the place of public accommodation on that particular occasion.”
The trial court was not required to make any express findings. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Based on this rule, we presume that the trial court’s judgment was correct and that it found against Mundy on all issues. As a result, it is Mundy’s task to demonstrate error regarding every aspect of his claim.
One issue is whether Mundy actually intended to use RLA’s restaurant on November 6, 2009. In his opening brief, Mundy did not analyze the sufficiency of the evidence to support the trial court’s implied finding that he did not intend to patronize RLA’s restaurant for lunch. It is apropos to point out that arguments not made are deemed waived or abandoned. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.)
To be complete, we note the following. At trial, Mundy was asked how many lawsuits he has filed alleging that a small business had violated the Americans with Disabilities Act (ADA). Mundy objected to the question on relevancy grounds. The objection was overruled. Mundy said it was about 500. Based on that testimony, it was logical for the trial court to infer that he did not go to RLA’s restaurant for lunch. Rather, he went there to set RLA up for a lawsuit. Thus, the trial court was entitled to find that Mundy lacked standing under section 55.56. In his reply brief, Mundy argues that evidence of his other lawsuits was inadmissible. “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.) We conclude that Mundy failed to show error.
2. The attorney fee award.
Mundy sued RLA, inter alia, under sections 54 and 54.1. Any person who is actually or potentially aggrieved by a violation of those statutes “may bring an action to enjoin the violation.” (§ 55.) “The prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” (§ 55.) According to Mundy, RLA was not entitled to attorney fees because it was not the prevailing party with respect to the claim for injunctive relief. On this point, we agree.
Unlike his request for statutory damages, Mundy was not required to show that he intended to use RLA’s restaurant.
When, as here, a statute does not define what it means to be the prevailing party, a trial court has the discretion to determine who the prevailing party was on a practical level. (Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1129.) But that discretion is not unlimited.
In Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, the plaintiff sued a restaurant to enjoin violations of the DPA. The restaurant ceased operations during the litigation. As a result, the request for injunctive relief under section 55 was denied as moot and the restaurant was awarded attorney fees as the prevailing party. The appellate court reversed, holding: “In view of the fact that [the restaurant] was indisputably in violation of the handicap access requirements, the determination that [the restaurant] ‘prevailed’ for purposes of attorney fees on the injunction cause of action constitutes an abuse of discretion.” (Donald v. Cafe Royale, Inc., supra, at p. 185.) The court added: “Under these circumstances, it was an abuse of discretion for the court to determine that by going out of business and rendering the issue moot, [the restaurant] ‘prevailed’ for purposes of attorney fees. Neither party prevailed for purposes of an award of attorney fees on the cause of action for injunctive relief.” (Ibid.) In Doran v. Holiday Quality Foods, Inc. (E.D. Cal. Oct. 8, 2003, No. CIV. S-99-0386) 2003 U.S. Dist. Lexis 26990, the ADA violations became moot when they were remedied and the plaintiff dismissed his section 55 claim. The court held that because he dismissed his claim, there was no prevailing party as a practical matter. (Doran v. Holiday Quality Foods, Inc., supra, at p. *6.)
The issue boils down to whether RLA was in violation of the DPA. On this issue, the parties are poles apart.
A violation of the ADA constitutes a violation of the DPA. (§ 54, subd. (c).) Discrimination under the ADA includes “a failure to remove architectural barriers... in existing facilities... where such removal is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).) The creation of a designated accessible parking space is one of many examples of when the removal of an architectural barrier is considered readily achievable. (28 C.F.R. § 36.304(b)(18)(2010); Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)
28 Code of Federal Regulations part 36.304(g)(1)(2010) (hereafter C.F.R.) indicates that barrier removal is required except to the extent that doing so would exceed the ADA standards for accessible design for alterations or, alternatively, new construction set forth in appendix A to 28 C.F.R. part 36. (28 C.F.R. §§ 36.304(g)(1) & (g)(2), 36.406(a). Subpart 4.1.2 of appendix A to 28 C.F.R. part 36 provides: “If parking spaces are provided for self-parking by... visitors, ... then accessible spaces complying with 4.6 shall be provided in each such parking area.... Except as provided in (b), access aisles adjacent to accessible spaces shall be 60 in[ches] wide minimum.” (28 C.F.R. § 36, appen. A, § 4.1.2(5)(a).) “One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 in[ches] wide minimum.’” (28 C.F.R. § 36, appen. A, § 4.1.2(5)(b).)
Based on these authorities, RLA was required to provide a van accessible handicap parking space with a 96-inch wide access aisle. The evidence showed that it did not until it remediated the violation. RLA’s arguments to the contrary, which we address seriatim, are unavailing.
First, RLA points out that the ADA standards for accessible design specifically apply to new construction or alterations occurring after specified dates. Because Mundy did not offer any proof regarding when RLA’s parking lot was constructed and painted, RLA claims there is no evidence of a violation. In its view, 28 C.F.R. part 36.304 is not applicable because it only requires that existing facilities remove barriers that are structural and painted lines are not structural. The problem with this argument is that 28 C.F.R. part 36.304 only refers to architectural barriers and subpart (b)(18) specifically identifies creating an accessible parking space as a way of removing an architectural barrier. Moreover, RLA’s interpretation violates the spirit of the DPA and ADA. These two acts work in tandem to require the removal of barriers if readily achievable. Painted lines can be as much of a barrier as a wall because they can allow parking that as a practical matter would make it difficult or impossible for a person with a disability to access a particular business.
Second, RLA contends that there is no evidence that Mundy’s lawsuit prompted RLA to remediate the ADA violation. However, the record shows that Mundy filed his action in November 2009. In opposition to the motion for attorney fees, Mundy’s attorney submitted a declaration averring that the parties submitted evidence showing that RLA remediated the ADA violation in response to being sued. Stacey Pray (Pray), a licensed architect and certified access specialist, testified that she inspected the parking lot in December 2009 and determined that it did not comply with the ADA She testified that the violations were subsequently remediated. A letter dated January 5, 2010, from Pray was admitted into evidence. It stated: “This letter will serve as certification that the Van Accessible parking space located at [RLA’s property] is ADA compliant.... [¶] [RLA] contacted [Pray] in December 2009, to perform a survey of the above reference parking space. On December 11, 2009[, ] an initial report was generated. [RLA] mitigated most of the outstanding items on the initial survey. [Pray] returned on December 31, [2009, ] to review this mitigation. A [second] survey was conducted and one item was found to be outstanding. [RLA] again mitigated this item and the parking space has been certified as compliant.” Given the timing of the complaint and evidence from Pray, the only reasonable inference is that the lawsuit prompted the remediation.
Third, RLA suggests that the trial court was entitled to reject all of Mundy’s testimony because he lacked credibility. As a result, we are encouraged to conclude that Mundy failed to establish that he has a disability, or that RLA’s parking lot was ever in violation of the ADA. We have reviewed the record. Mundy alleged that he tried to park at RLA’s property on November 6, 2009. At trial he testified that he took a picture of the parking space on November 4, 2009, and it had been remediated. The weight of the record indicates that he misspoke, and the evidence from Pray established that a violation existed in November 2009 and was not remediated until December 2009. As to Mundy’s disability, there is no evidence suggesting that he lied about being a paraplegic.
Fourth, RLA suggests that at the time Mundy allegedly tried to park, the parking lot was relatively empty and he could have parked in any of the spaces. In the alternative, RLA points out that Mundy admitted on the stand that he could have backed into the existing handicap space and then lowered his ramp into the driveway in order to exit his van. Impliedly, RLA contends that Mundy could not have been actually or potentially aggrieved. This contention lacks merit. A person who uses a wheelchair cannot park in a regular parking space without the threat of being blocked by a vehicle subsequently parked in an adjacent space. Moreover, a person in a wheelchair is under no obligation to try to exit a vehicle in the middle of a driveway. It would be demeaning and potentially unsafe.
Fifth, we are urged by RLA to conclude that Mundy failed to provide evidence of technical design criteria. But the requirements of the ADA presented an issue of law. Mundy cited to the ADA in his trial brief. RLA failed to advert to any law requiring Mundy to do anything more.
3. RLA’s request for attorney fees and sanctions
RLA requests its attorney fees on appeal pursuant to section 55. That request must be denied because RLA was not the prevailing party on the injunctive relief claim either at the trial court level or on appeal.
Next, RLA requests sanctions on the theory that Mundy filed a frivolous appeal. The request is denied. RLA failed to file a separate motion and supporting documents as required by California Rules of Court, rule 8.276. In any event, we do not deem Mundy’s appeal to be frivolous.
DISPOSITION
The judgment is affirmed. The postjudgment order awarding attorney fees to RLA is reversed.
The parties shall bear their costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.