Ramirez v. Apena Corp et al

Filing 20

ORDER resetting CMC. Case Management Statement due by 6/9/2016. Case Management Conference set for 6/16/2016 09:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 2/16/16. (bpfS, COURT STAFF) (Filed on 2/16/2016)

Download PDF
5 THOMAS E. FRANKOVICH (S.B.N. 074414) THOMAS E. FRANKOVICH, A Professional Law Corporation 1832-A Capitol Street Vallejo, CA 94590 Telephone: (415) 444-5800 Facsimile: (415) 674-9900 6 Attorney for Plaintiff IRMA RAMIREZ 1 2 3 4 7 8 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 ) ) Plaintiff, ) ) ) v. ) ) APENA CORP, a California Corporation ) dba PLAZA TEQUILA TAQUERIA; ) DEMETRIOS GIANNIS, Trustee and ROSE ) GIANNIS, Trustee of the Giannis Family Trust,) ) Defendants. ) ) ) IRMA RAMIREZ, 13 14 15 16 17 18 19 20 21 CASE NO. 15-cv-03808-EMC JOINT CASE MANAGEMENT STATEMENT Date: Time: Judge: Crtm: February 18, 2016 9:30 a.m. Hon. Edward Chen 5, 17th Floor Complaint Filed: August 20, 2015 22 23 24 25 26 27 28 Pursuant to Civil Local Rule 16-9 and the Court's Order, the parties to the above captioned action jointly submit this Case Management Statement. NOTE: Plaintiff’s Position: Please take notice that the case has been referred to mediation but has not been appointed a mediator yet. The Case Management Conference is currently set for February 18, 2016. Plaintiff believes it would be in the interests of efficiency and economy to continue the Case Management Conference to sometime in June of 2016 in order for the parties to {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 1 1 participate in a mediation and reduce fees and costs. As such, plaintiff respectfully requests 2 that the Case Management Conferenence be continued to sometime after the mediation has 3 been completed and/date that is convenient to the Court. 4 Defendant APENA CORP’s Position: 5 Defendant APENA CORP. agrees that the current date for the CMC does not allow the 6 parties time to participate in ADR and joins in plaintiff’s request that the CMC be continued 7 until at least June 2016. 8 Defendant GIANNIS’s Position: 9 Agrees with Plaintiff. 10 1. JURISDICTION, VENUE & SERVICE Jurisdiction: This Court has jurisdiction of this action pursuant to 28 U.S.C. §1331 for 11 12 violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. Pursuant to 13 pendant jurisdiction, attendant and related causes of action, arising from the same nucleus of 14 operative facts and arising out of the same transactions, are also brought under parallel California 15 law, whose goals are closely tied with the ADA, including but not limited to violations of 16 California Civil Code §51, et seq. and §54, et seq., California Health & Safety Code §19955 et 17 seq., including §19959; and California Building Code. Venue: Venue is proper in this court pursuant to 28 U.S.C. §1391(b) and is founded on 18 19 the facts that the real property which is the subject of this action is located at/near 19315 20 Highway 12, in the City of Sonoma, County of Sonoma, State of California, and that plaintiff’s 21 causes of action arose in this county. 22 Status of Service of Process: 23 All parties to the action have been served. 24 // 25 // 26 // 27 // 28 // {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 2 1 2. BRIEF DESCRIPTION OF CASE/FACTS 2 Plaintiff’s Position: 3 This is an action brought by Plaintiff IRMA RAMIREZ and claimant Daren Heatherly 4 for discrimination based upon the defendants alleged failure to comply with the Americans with 5 Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et seq., the Unruh Civil Rights Act, Cal. Civ. 6 Code §§51 and 51.5, California Health & Safety Code §19955, et seq., and the California 7 Disabled Persons Act, Cal. Civ. Code §§54, 54.1 and 54.3, all of which relate to the denial of 8 access to a place of public accommodation. Plaintiff IRMA RAMIREZ and claimant Daren 9 Heatherly each is a person with physical disabilities who, on or about August 14, 2014 and April 10 29, 2015 and (“deterred thereafter”), was an invitee, guest, patron, customer at defendants’ 11 PLAZA TEQUILA TAQUERIA, in the City of Sonoma, California. At said times and place, 12 defendants failed to provide proper legal access to the plaza, which is a “public accommodation” 13 and/or a “public facility” including, but not limited to entrance, dining areas, signage, men’s 14 restroom, women’s restroom. The denial of access was in violation of both federal and 15 California legal requirements, and plaintiff IRMA RAMIREZ and claimant Daren Heatherly 16 each suffered violation of their civil rights to full and equal access, and was embarrassed and 17 humiliated. 18 Defendant APENA CORP’S Position: 19 Luis Acosta and Alejandro Cruz took over operation of an existing restaurant in Sonoma, 20 Sonoma County, California by way of an assignment of lease on September 11, 2012. Defendant 21 APENA CORP is not connected with this lease. In April 2008 the plaintiff appears to have 22 written to both the tenant at an earlier business known as Amigos Grill and the owner of the 23 restaurant building, presumably Mr. and Mrs. GIANNIS, and the recipients of this letter did not 24 bring the building up to ADA standards. When Acosta and Cruz took possession of the building 25 it was a very attractive restaurant. They had no idea that the building had ADA deficiencies or 26 that their new landlord had gone for 4 ½ years without responding to plaintiff’s demand for 27 compliance. The landlord crafted an assignment of lease document purporting to transfer 28 responsibility for ADA compliance to the tenant, but did not share with the new tenant the {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 3 1 landlord’s knowledge that the building was not compliant and that a disabled person had sent a 2 written notification to the landlord that she could not use their public facilities and that she 3 wanted the owners and operators of the building bring it into compliance; i.e., that if the building 4 were not brought into compliance, a lawsuit was looming on the horizon. When Acosta learned of the lawsuit and of his obligation to comply with the Americans 5 6 with Disabilities Act, he engaged a knowledgeable architect to assess the building and 7 recommend improvements. As of the preparation of this Case Management Statement, 8 construction of compliant restrooms, implementation of proper signage, and modification of 9 tables and interior accommodations is nearly complete. 10 Defendant GIANNIS’s Position 11 Defendants have corrected an violation of Applicable ADA laws and/or regulations. 12 What’s left is the alleged personal injury claim of Plaintffs. Plaintiffs have made similar claims 13 for personal injury against other businesses. 14 3. 15 PRINCIPAL LEGAL ISSUES IN DISPUTE Plaintiff’s Position: a. whether architectural barriers existed and/or continue to exist at Plaza Tequila Taqueria which denied access to each plaintiff 18 b. whether the removal of architectural barriers was/is readily achievable; 19 c. whether each plaintiff encountered architectural barriers; and d. whether as a legal result of encountering architectural barriers each plaintiff was discriminated against and suffered injury. 16 17 20 21 22 23 24 25 26 27 28 Defendant APENA CORP’s Position: a. Inasmuch as Acosta commenced repairs before he was ever served (APENA is not a proper party defendant) , whether a cause of action against the tenant of the restaurant lies; b. Whether any language of the lease purporting to separate the landlord from its obligations under the ADA is effective against the tenant since the cause of action accrued over four years before the tenant took possession under the lease; and {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 4 c. Whether the failure of the landlord to notify the tenant that the landlord was on written notice of the building and business’s non-compliance operates as an estoppel against the landlord for making any indemnity claim against the tenant, though this issue is not set out in the pleadings at this point. 1 2 3 Defendant GIANNIS’s Position: 4 5 a-c. Contractor has effect changes correcting any such issues. d. Agree. This is the extent of any such injury at issue. 6 7 8 4. MOTIONS Plaintiff’s Position: 9 10 Plaintiff does not anticipate filing any motions at this time. 11 Defendant(s) Position: 12 Defendants do not anticipate filing any motion at this time. 13 14 5. AMENDMENT OF PLEADINGS Plaintiff’s Position: 15 Plaintiff does not anticipate any further amendments to the pleadings at this time. 16 17 Defendant(s) Position 18 Defendants do not anticipate any further amendments to the pleadings at this time. 19 6. EVIDENCE PRESERVATION 20 Plaintiff’s Position: 21 No issues anticipated. 22 Defendant(s) Position: 23 No issues anticipated anticipated for defendants 24 7. DISCLOSURES 25 Plaintiff’s Position: 26 The parties have exchanged their Rule 26 Initial Disclosures. 27 // 28 {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 5 1 Defendant(s) Position: 2 Agreed. 3 8. DISCOVERY 4 5 Plaintiff’s Position: 6 The parties conducted the General Order 56 Joint Site Inspection on December 10, 2015. 7 Defendant APENA CORP’s Position: 8 Not known until after mediation. 9 Defendant GIANNIS’s Position: 10 Depositions of Plaintiffs if current efforts to resolve fail. In addition, subpoena 11 12 13 medical records and possible IME for each Plaintiff. Possible treating MD depositions. 9. Not Applicable. 14 15 CLASS ACTION 10. RELATED CASES 16 Plaintiff’s Position: 17 Not Applicable. 18 Defendant(s) Position: 19 Not Applicable. 20 11. 21 Plaintiffs’ Position: 22 23 24 25 26 27 28 RELIEF Plaintiff seeks injunctive relief to compel defendant to make their public accommodation accessible pursuant to ADAAG or the California Building Code, whichever is more restrictive, and to further maintain access in the future. Plaintiff also seeks actual damages and attorney’s fees, costs, and litigation expenses. // // // {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 6 1 Defendant APENA CORP’s Position: 2 At the site inspection Luis Acosta understands that an agreement has been made with 3 regard to bringing the building and business into ADA compliance. As to the monetary relief 4 demanded, it is this answering defendant’s position that because of the violations that predated the 5 6 Acosta occupancy this is a matter between plaintiff and defendants GIANNIS. 7 Defendant GIANNIS’s Position: 8 This defendant has a contractual claim for defense indemnity against Apnea Corp. 9 dba Plaza Tequila Taqueria. 10 11 12. SETTLEMENT/ADR 12 Plaintiff’s Position: 13 A formal demand was made on January 29, 2016. Case has been referred to mediation. 14 Defendant APENA CORP’s Position: 15 Defendants will participate in mediation. 16 Defendant GIANNIS’s Position: 17 18 19 This defendant has been informed that corrections have been made. This defendant believes Plaintiff’s settlement demand is excessive. 13. 20 Plaintiff’s Position: 21 22 MAGISTRATE JUDGE TRIALS Plaintiff consents to proceed before a Magistrate Judge for trial purposes except for Judge Ryu. 23 Defendant(s) Position: 24 Defendant does not consent to a Magistrate Judge. 25 26 14. OTHER REFERENCES 27 Plaintiff’s Position: 28 Not applicable. {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 7 1 Defendant(s) Position: 2 Not applicable. 3 15. NARROWING OF ISSUES 4 5 Plaintiff’s Position: 6 None at this time. 7 Defendant APENA CORP’s Position: 8 None at this time. 9 Defendant GIANNIS’s Position: 10 Plaintiff to formally stipulate that premises in question are now in compliance.16. 11 EXPEDITED SCHEDULE 12 Plaintiffs’ Position: 13 Not applicable. 14 Defendant(s) Position: 15 Not applicable. 16 17 17. SCHEDULING: 18 Plaintiff’s Proposed Schedule: 19 Disclosure of Expert Witness: September 11, 2016 20 Discovery Cut-off: October 2, 2016 21 Last Day to Hear Motions: November 6, 2016 22 Final Pretrial Conference: January 23, 2017 23 Trial Date: February 7, 2017 24 Defendant(s) Proposed Schedule: 25 Defendants are acceptable. 26 // 27 // 28 // {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 8 1 18. TRIAL 2 Plaintiff’s anticipated length of trial: 1-2 days 3 Type of trial: 4 Defendants’ anticipated length of trial: 3-4 days 5 Type of trial: X jury X jury - court - court 6 19. NON-PARTY INTERESTED PERSONS 7 8 Plaintiff’s Position: 9 Plaintiff is unaware of any non-party interested persons or entities at this time. 10 Defendant APENA CORP’s Position: 11 Same as plaintiff . 12 Defendant GIANNIS’s Position: 13 Not applicable. 14 15 20. OTHER MATTERS 16 Plaintiffs’ Position: 17 The parties are unaware of any additional matters that will facilitate the just, speedy and 18 19 inexpensive disposition of this matter at this time. Dated: February 11, 2016 20 THOMAS E. FRANKOVICH, ESQ. A PROFESSIONAL LAW CORPORATION 21 By: /s/ Thomas E. Frankovich Thomas E. Frankovich Attorney for Plaintiff 22 23 24 Dated: February 11, 2016 ATTORNEY AT LAW 25 By: /s/ Marvin Pederson Marvin Pederson Attorney for Defendant Apena Corp. 26 27 28 // {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 9 1 Dated: February 11, 2016 DICKENSON, PEATMAN & FOGARTY, P.C. 2 By: /s/ John F. Van De Poel John F. Van De Poel Attorney for Defendants Demetrios Giannis and Rose Giannis 3 4 5 6 9 RT U O 13 17 dward Judge E ER n M. Che H 16 RT 15 NO 14 DERED SO OR ED IT IS DIFI AS MO LI 12 A 11 UNIT ED S 10 R NIA 8 IT IS SO ORDERED. The CMC is reset from 2/18/16 to 6/16/16 at 9:30 a.m. An updated joint CMC statement shall be filed by 6/9/16. ________________________ S DISTRICT TE C Edward M. Chen TA U.S. District Judge FO 7 N D IS T IC T R OF C 18 19 20 21 22 23 24 25 26 27 28 {01413976.DOC;1} JOINT CASE MANAGEMENT STATEMENT 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?