Free Amended Complaint - District Court of California - California

Case 3:08-cv-00454-H-LSP

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Filed 05/23/2008

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1 IIAmyB. Vandeveld, SBN 137904 LAW OFFICES OF AMY B. VANDEVELD 2 111850 Fifth Avenue, Suite 22 San Diego, California 92101 3 IITelephone: (619) 231-8883 Facsimile: (619) 231-8329

4
Attorney for Plaintiff

5 6 7 8 9
10 "KAREL SPIKES, Plaintiff, FIRST
AMENDED

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 08 CV 0454 H (LSP) CIVIL COMPLAINT DEMAND FOR JURY TRIAL [F.R.C.P. §38(b); Local Rule 38.1]

11 12 vs.

13 "TEPI-NORTE MEX-CITY; FRANCISCO 14 IICHAVEZ; CHRISTINA CHAVEZ; ROBERTO BARNET, individually and dba OLD 15 IICOTIJA~ and DOES 1 THROUGH 10, Incluslve,

16 17 18

Defendants.

Plaintiff, KAREL SPIKES (hereinafter referred to as

19 "Plaintiff"), file this cause of action against Defendants TEPI20 NORTE MEX-CITY (hereinafter referred to as ~MEX-CITY"),
21 IIFRANCISCO CHAVEZ, 22 individually CHRISTINA CHAVEZ and ROBERTO BARNET referred to as

and dba OLD COTIJAS and DOES 1 THROUGH

(hereinafter

23 ~OLD COTIJAS")

10, Inclusive,

and would show

24 unto the Court the following:

25 26 27 28 1.

I.
JURISDICTION This Court has original AND VENUE jurisdiction of this civil

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1 "action
2 "1343

pursuant

to 28 USC

§1331,

28 USC §§1343 (a)

(3)

and

(a) (4)

for claims arising

under the Americans

with

3 "Disabilities

Act of 1990, 42 USC §12101 et seq. and the Court's 28 USC §1367. to 28 USC

411supplemental jurisdiction,

5

2.

Venue
and

in this Court is proper pursuant

6 11§§1391 (b)

(c).

7

3.

Pursuant

to 28 USC §1367(a),

Plaintiff

shall assert

8 Iiallcauses of action based on state law, as plead in this 9 "complaint, under the supplemental 10 "court. jurisdiction of the federal

All the causes of action based on federal law and those

11 "based on state law, as herein stated, arose from a common nuclei 12 "of operative fact. That is, Plaintiff was denied equal access in violation

13 "to Defendants'

facilities,

goods, and/or services

14 "of both federal and state laws and/or was injured due to 15 "violations of federal and state access laws. 16 "of Plaintiff The state actions

are so related to the federal actions that they The actions would

17 "form part of the same case or controversy. 18 "ordinarily be expected

to be tried in one judicial

proceeding.

19 20 21
4. Defendant

II.
THE PARTIES MEX-CITY is, and at all times mentioned or franchise organized and

22 "herein was, a business

or corporation

23 "existing and/or doing business 24 "California. 25 Diego, CA 26 informed MEX-CITY (hereinafter and believes

under the laws of the State of San is

is located at 4988 Imperial Avenue, ~the subject property".) and thereon Plaintiff

alleges that Defendant

MEX-

27 "CITY is, and was, the owner,

lessor or lessee of the subject of the public

28 "property and/or the owner and/or operator

2

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111accornmodation

located

at the

subject

property.

2

5.

Defendant

FRANCISCO

CHAVEZ

is, and at all times residing in and/or doing Plaintiff is

3 Ilmentioned herein was, an individual

4 IIbusiness under the laws of the State of California. 5 lIinformed and believes 6 IIFRANCISCO CHAVEZ
7 lIowner, lessor or

and thereon

alleges

that Defendant herein was, the

is, and at all times mentioned
lessee of the subject property.

8

6.

Defendant

CHRISTINA

CHAVEZ

is, and at all times residing in and/or doing Plaintiff is

9 IImentioned herein was, an individual

10 IIbusiness under the laws of the State of California. 11 lIinformed and believes 12 IICHRISTINA CHAVEZ and thereon

alleges that Defendant herein was, the

is, and at all times mentioned

13l1owner, lessor or lessee of the subject property.

14

7.

Defendant

ROBERTO

BARNET is, and at all times residing within the County

15 IImentioned herein was, an individual 16 of San Diego and/or doing business 17 laws of the State of California. 18 114988 Imperial
19 IIproperty"
. )

as OLD COTIJAS OLD COTIJAS

under the at

was located

Avenue, Plaintiff

San Diego, CA is informed OLD COTIJAS

(hereinafter and believes

"the subject and thereon

20 lIalleges that Defendant

is, and at all times

21 IImentioned herein was, the owner, lessor or lessee of the 22 IIsubject property
2311accornmodation

and/or the owner and/or
at the subject

operator

of the public

located

property.

24

8.

Plaintiff

is informed

and believes,

and thereon

25 lIalleges, that Defendants 26 IItimes relevant

and each of them herein were, at all the owners, franchisees, lessees, employers, joint

to the action,

27 IIgeneral partners,

limited partners, subsidiaries,

agents, employees, parent companies,

28 IIrepresenting partners,

3

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1 IIventurers and/or divisions

of the remaining

Defendants

and were

2 acting within the course and scope of that relationship. 3 Plaintiff is further informed and believes, and thereon alleges,

4 Iithat each of the Defendants 5 Iland/or authorized
6 IIremaining

herein gave consent

to, ratified,

the acts alleged

herein of each of the

Defendants.

7

9.

Plaintiff

is an otherwise

qualified

disabled

individual

8 as provided 9 USC §12102,

in the Americans

with Disabilities Health

Act of 1990, 42 & Safety Code and

Part 5.5 of the California

10 litheCalifornia

Unruh Civil Rights Act, §§51, et seq., 52, et Disabled Persons Act, §§54, et seq., and of the the

11 seq., the California 12 other statutory

measures

which refer to the protection persons." Plaintiff

1311rights of "physically 14 IIpublic accommodation 15 located 16 himself

disabled

visited

owned and/or operated

by Defendants

and/or

at the subject property of the goods, services,

for the purpose facilities,

of availing

privileges,

17 lIadvantages,

or accommodations

operated

and/or owned by Defendants

18 lIand/or located on the subject property.

19

II

10.

Plaintiff is informed and believes and thereon alleges
facility has been newly constructed or alterations and/or

20 IIthatthe subject

21 lIunderwent remodeling, 22 IIthat Defendants

repairs,

since 1971, and access

have failed to comply with California

23 IIstandards which applied
24 lIand/or alteration.

at the time of each such new construction

25 26 27
II

III. FACTS 11. Plaintiff has a mobility impairment and uses a
Moreover, he has had a history of or has been

28 IIwheelchair.

4

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1 IIclassified as having a physical
2 11§12102 (2) (A)
.

impairment,

as required

by 42 use

3

II

12.

On or about October 8, 2007 and November 26, 2007 and
date, Plaintiff was denied full by the were

4 IIcontinuing through the present

5 lIandequal access to the facilities 6 IIDefendants because the facility

owned and/or operated subject property community

and/or

7 Ilinaccessible to members

of the disabled Plaintiff

who use

8 Ilwheelchairs for mobility. 9 lIaccess to portions

was denied

full and equal which

of the property

because

of barriers

10 Ilincluded, but are not limited to, inaccessible 11 Ilinaccessible seating and lack of an accessible 12 IIwell as lack of signage for said space.

path of travel, parking space, as

Plaintiff

was also policies

13 IIdenied full and equal access because 14 lIandpractices regarding accommodating

of discriminatory

people with disabilities. with access

15 IIPlaintiff filed this lawsuit to compel compliance
1611laws and regulations.

17

II

13.

As a result of Defendants' failure to remove
Plaintiff suffered injuries. People with full

18 lIarchitectural barriers, 19 IIdisabilities, because

of the existing

barriers,

are denied

20lland equal access to the Defendants' 21 in effect for more than 17 years. about ADA obligations,

facilities.

The ADA has been of

Given the vast availability including FREE documents

22 information

which

2311are available 24 11(800) 514-0301

from the U.S. Department or at the following

of Justice by calling

web sites: and

25I1www.sba.gov/ada/smbusgd.pdf, 26I1www.usdoj.gov/crt/ada,
27 IItheir barrier removal

www.ada.gov/taxpack.pdf

the failure of Defendants
obligations is contemptible.

to comply with

28

II

14.

Plaintiff is an otherwise qualified individual as 5

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1 IIprovided in the Americans 2 1I§12102, the Rehabilitation

with Disabilities

Act or 1990, 42 USC 504 (as amended

Act of 1973, Section

3 1129USC §794) and the California

Unruh Civil Rights Act, Civil measures
disabled

411Code §§51, 52, 54.1, and 54.3, and other statutory
5 lire fer to the protection of the rights of "physically

which

6I1persons."

Plaintiff

visited

the public

facilities of availing

owned and himself of the for

7 lIoperated by Defendants 8 goods and services 9 the purpose

for the purpose

offered and provided removal

by Defendants

and/or

of obtaining

of architectural and procedures

barriers

and/or

10 IImodification of policies,

practices

to provide was injured

11 lIaccessibility to people with disabilities.
12 lIin fact, as set forth more specifically

Plaintiff

herein.

13

II

15.

Plaintiff alleges that Defendants will continue to
accommodations which are inaccessible Pursuant to him and

14 lIoperate public

15 litoother individuals 1611§12188(a), Defendants
17 IIbarriers to their

with disabilities. are required

to 42 USC

to remove architectural

existing

facilities.

18

II

16.

Plaintiff has no adequate remedy at law for the
being suffered in that money damages will not

19 lIinjuries currently

20 lIadequately compensate

Plaintiff

for the amount of harm suffered in the economic and

21 liasa result of exclusion
22 IIsocial life of this state.

from participation

23

II

17.

Plaintiff believes that architectural barriers
full and equal access of the public to exist at Plaintiff's future of Plaintiff, Plaintiff Plaintiff

24 IIprecluding Plaintiff 2511accommodation

will continue

26 Ilvisits, which will result in future discrimination 27 Ilinviolation 28 Iliscurrently of the Americans being subjected with Disabilities to discrimination

Act. because

6

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1 IIcannot

make use of and obtain full and equal access to the
services offered by Defendants to the

2 IIfacilities, goods and/or 3 IIgeneral public.

Plaintiff

seeks damages

for each offense

4 IIrelating to each of Plaintiff's 5 IIwhen Plaintiff was denied

visits to the subject property

full and equal access to the subject from attempting privileges to avail himself of the

6 IIproperty or was deterred 7 IIbenefits, goods, 8 lIofpublic

services,

and advantages

of the place of

accommodation

at the subject property

because

911continuing barriers

to full and equal access.

10 11
VIOLATION

IV.
FIRST CLAIM FOR OF AMERICAN WITH DISABILITIES 42 USC §12101. et sea. ACT

12 13
II

18.

Plaintiff re-alleges and incorporates by reference each
contained
set forth

1411and every allegation
15 lIinclusive, as though

in paragraphs
fully herein.

1 through

17,

16

II

19.

Plaintiff was denied full and equal access to
services, within facilities, privileges, advantages, leased

17l1Defendants' goods,
18 lIoraccommodations

a public accommodation in violation

owned,

19l1and/or operated

by Defendants,

of 42 use §12182(a). and is

20 IIPlaintiff was, therefore, 21 lIentitled to injunctive
22 lire suIt of the actions

subjected

to discrimination to 42 use §12188

relief pursuant
or inaction of

as a

Defendants.

23

20.

Among other remedies, Plaintiff seeks an injunctive

24 order requiring compliance with state and federal access laws for
25 all access violations which exist at the property, barriers requiring

26 removal of architectural 27 IImaydeem proper.

and other relief as the court

Plaintiff

also seeks any other order that will to which he has been subjected, is

28 Ilredress the discrimination

7

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1 "being subjected

and/or will be subjected. v. SECOND CLAIM FOR
VIOLATION OF CALIFORNIA CIVIL CODE

2 3 4 5
"

21.

Plaintiff re-alleges and incorporates by reference each
contained in paragraphs 1 through 20,

6 "and every allegation 7 "inclusive, 8
"

as though set forth fully herein.

22.

Based on the facts plead hereinabove and elsewhere in
Defendants did, and continue similarly to, discriminate by denying of the

9 "this complaint,

10 "against Plaintiff 11 "disabled persons

and persons

situated

full and equal access to and enjoyment and of Defendants' advantages in violation goods, services,

12 "subject facilities 13 "facilities,

privileges,

or accommodations of California

within

a

14 "public accommodation,

Civil Code §§51,

15 "et seq., 52, et seq., and 54, et seq.

16"

23.

Defendants' actions constitute a violation of
rights under California Civil Code §§51, et seq., 52, Plaintiff is entitled of California is entitled to to

17 "Plaintiff's

18 "et seq., and 54, et seq. and therefore 19 "injunctive relief remedying

all such violations In addition,

20 "access laws and standards. 21 "damages under California 22 "amount of damages 23 "When the amount

Plaintiff

Civil Code §54.3 for each offense. by Plaintiff

The

suffered

is not yet determined. will ask the Court for Plaintiff

is ascertained,

Plaintiff

24 "leave to amend this complaint 25 "is also entitled

to reflect this amount. attorneys'

to and requests

fees and costs.

26"

24.

The actions of Defendants were and are in violation of
Civil Code §§51, et seq. relief

27 litheUnruh Civil Rights Act, California 28 Ilandtherefore Plaintiff is entitled

to injunctive

8

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1 IIremedying all such violations 2 IIstandards. In addition,

of California

access laws and to damages under

Plaintiff

is entitled

3 IICalifornia Civil Code §52 for each offense. 4 Iidamages suffered
II

The amount of When the

by Plaintiff

is not yet determined.

5 amount is ascertained, Plaintiff will ask the Court for leave to 611amend this complaint to reflect this amount.

7

II

25.

Plaintiff seeks all of the relief available to him

8 lIunder Civil Code §§51, 52 et seq., 54, 54.1, 54.2, 54.3, and any 9 lIother Civil Code Sections 10 IIdiscrimination suffered
lll1attorneys fees.

which provide

relief

for the damages and

by Plaintiff,

including

12 13 14 15
II

VI. THIRD CLAIM FOR
VIOLATION OF HEALTH AND SAFETY CODE §19950. ET SEQ.

26.

Plaintiff re-alleges and incorporates by reference each
allegation contained in paragraphs 1 through 25,

16 lIand every

17l1inclusive, as though set forth fully herein.

18

II

27.

Defendants' facilities are public accommodations within
of Health and Safety Code §19950, and believes and thereon et seq., and alleges that

19 lithemeaning

20 IIPlaintiff is informed

21 IIDefendants have newly built or altered 22 and/or the subject 23 California facility

the subject property the meaning of

since 1971 within

Health and Safety Code §19959. of Defendants constitute

The aforementioned a denial of equal facilities by

24 acts and omissions

25 access to the use and enjoyment
2611people with disabilities.

of the Defendants'

27

II

28.

Defendants' failure to fulfill their duties to provide
by people with

28 IIfulland equal access to their facilities

9

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1 IIdisabilities has caused Plaintiff
2 IIPlaintiff's civil rights, as well

to suffer deprivation
as other injuries.

of

3

II

29.

As a result of Defendants' violations of Health and
et seq., described injunctive herein, Plaintiff is

4 IISafety Code §§19955,

5 lIentitled to and requests 6 IISafety Code §§19953,

relief pursuant attorney's

to Health and

and to reasonable

fees and costs.

7 8 9
II

VII.
FOURTH CLAIM FOR DECLARATORY RELIEF

30.

Plaintiff re-alleges and incorporates by reference each
allegation as though contained set forth in paragraphs fully herein. 1 through 29,

10 lIand every 11 lIinclusive,

12

II

31.

An actual controversy now exists in that Plaintiff is
and thereon alleges that Defendants' access laws of the

1311informed and believes

14 IIpremises are in violation 15 IIState of California

of the disabled

including,

but not limited to, Civil Code and Safety

1611§§51, et seq., §§52, et seq., §§54, et seq., Health 1711Code §§19950, et seq., Government Code §§4450,

et seq. and 7250, and/or

1811et seq., Title 24 of the California 19 IITitle III of the Americans
20 lIimplementing Accessibility

Code of Regulations, Act and its

with Disabilities
Regulations.

21

II

32.

A declaratory judgment is necessary and appropriate at

22 IIthistime so that each of the parties may know their respective 23 IIrights and duties and act accordingly.

24 25 26
II

VIII.
FIFTH CLAIM FOR INJUNCTIVE RELIEF

33.

Plaintiff re-alleges and incorporates by reference each
contained in paragraphs 1 through 32,

27 and every allegation 28 inclusive, as though

set forth fully herein.

10

Case 3:08-cv-00454-H-LSP 1" 34.

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Plaintiff will suffer irreparable harm unless
barriers at

2 IIDefendants are ordered to remove architectural 3l1Defendants' public 4 lIandpractices accommodation,

and/or to modify

their policies

regarding

accommodating

people with disabilities. the

5 IIPlaintiff has no adequate 611discriminatory

remedy at law to redress

conduct of Defendants.

7

II

35.

Plaintiff seeks injunctive relief to redress

8 IIPlaintiff's inj uries.

9 10

IX.
JURY DEMAND
II

11

36.

Pursuant to Rule 38 of the Federal Rules of Civil
hereby request a jury trial.

121lProcedure, Plaintiffs

13

II

WHEREFORE, Plaintiff prays for judgment against the
MEX-CITY, FRANCISCO CHAVEZ, CHRISTINA CHAVEZ, OLD

14 Defendants, 15 COTIJAS

and DOES 1 through For injunctive

10, as follows: Defendants to comply

16 17 18 19 20 21 22 23

1.

relief, compelling

with the Americans

with Disabilities

Act, the Unruh

Civil Rights Act and the Disabled

Persons Act. rights and duties of

2.

That the Court declare of Plaintiff architectural accommodations;

the respective

and Defendants barriers

as to the removal public

at Defendants'

3.

An order awarding Plaintiff actual, special and/or
statutory damages for violation of his civil rights and to, damages

24 25
26 27 28

for restitution pursuant

including,

but not limited

to the applicable

Civil Code Sections

including,

but not limited to, §§52 and 54.3 for each of Civil Code §§51 and 54;

and every offense

11

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1 2 3 4 5 6 7 8 II

4. 5.

An award of compensatory damages according to proof;

An award of up to three times the amount of actual damages pursuant to the Unruh Civil
Rights Act and the Disabled Persons Act; and reasonable attorneys' fees

6.

An order awarding
and costs;

Plaintiff

7.

Such other and further relief as the Court deems

proper.
May 21, 2008

LAW OFFICES OF AMY B. VANDEVELD Sf AMY B. VANDEVELD Attorney for Plaintiff Email: [email protected]

9 IIDATED: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12