Filed 6/7/16 Supancic v. Turner CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


NICOLAS SUPANCIC,                                                    B263896

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC495121)
         v.

DOUGLAS G. TURNER,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Maureen Duffy-Lewis, Judge. Affirmed.
         Morris S. Getzels Law Office and Morris S. Getzels, for Plaintiff and Appellant.
         Douglas G. Turner, in pro. per., for Defendant and Respondent.
                                    INTRODUCTION
       Plaintiff and appellant Nicholas Supancic (plaintiff) alleged that he was a disabled
person under the Americans with Disabilities Act (ADA) (42 U.S.C. § 12181 et seq.) who
required the aid of a service dog, and that his dog was denied access to a pub that
defendant and respondent Douglas Turner (defendant) owned and leased to a limited
liability company which operated the pub. On appeal from the judgment entered
following the trial court’s order granting defendant’s summary judgment motion, plaintiff
contends that the trial court erred in granting summary judgment because there were
triable issues of fact on his theory of owner/lessor liability under the ADA. Plaintiff also
contends that the trial court erred by denying his motion to reconsider.
       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. We also affirm
the order denying reconsideration because the record on that motion is inadequate to
allow us to consider the challenge to that ruling on appeal. We therefore affirm the
judgment and the order denying reconsideration.


                              FACTUAL BACKGROUND
       In the operative first amended complaint, plaintiff alleged the following about the
incident that gave rise to his lawsuit against defendant. On March 13, 2012, around 9:15
p.m., plaintiff entered the White Harte Public House (White Harte) with a friend and
plaintiff’s service dog which was wearing a vest identifying it as a service dog. Pierre
Moeini1 approached plaintiff and told him that he must pick up the service dog or leave.
Plaintiff explained to Moeini that plaintiff’s dog was a service dog and that Moeini was
infringing upon plaintiff’s rights. Moeini “physically forced” plaintiff out of the White
Harte along with plaintiff’s dog and friend.

1      Moeini, formerly a codefendant, settled his portion of this lawsuit.


                                               2
       Outside the pub, plaintiff advised Moeini that he was violating the law. In
response, Moeini told plaintiff that he didn’t “‘give a f[u]ck’” and to “‘leave or get [his]
ass kicked.’” When plaintiff informed Moeini that he had committed an additional
wrongful act by threatening plaintiff with bodily harm, Moeini said, “‘I don’t give a
sh[i]t. How about this. I’m not letting you in because you look like a little faggot, you
and your friend look like faggots, and you have a little faggot dog.’” Plaintiff again
advised Moeini that those statements were wrongful acts, but Moeini just laughed and
told plaintiff that he owned “‘six of these places’” and that Moeini did not allow
homosexuals into any of them.
       At that point, Moeini realized that someone had been recording his statements, so
he said, “‘I will smash your head into a million pieces if you do not get the f[u]ck off my
property right now.’” Moeini then assumed a threatening physical stance, causing
plaintiff and his friend to leave quickly.
       In support of the summary judgment motion directed at the first amended
complaint, defendant submitted the following facts with supporting evidence: Plaintiff’s
disagreement was with Moeini only. Plaintiff’s theory of liability against defendant
individually was based on an agency theory or the fact that defendant was liable as an
owner or landlord. Defendant was not an agent or partner, but was a 50 percent owner of
Harte LLC. Harte LLC owned and operated the White Harte, not defendant. “The
‘[l]andlord’ as defined by [t]he lease [under which Harte LLC occupied the White Harte
was] Pierre Moeini and [defendant].”
       In his opposition to defendant’s separate statement of undisputed facts, plaintiff
submitted the following facts with supporting evidence: Moeini was acting on behalf of
the White Harte and defendant at the time plaintiff was ejected from that establishment.
The real property on which the White Harte was located was owned by defendant and
Moeini. Defendant and Moeini, as landlords, leased the real property on which the White
Harte was located to Harte LLC, as tenant, and defendant and Moeini were the members
of Harte LLC. The White Harte was a place of public accommodation licensed to sell



                                              3
food and drinks. Harte LLC had no operating agreement. Defendant signed the White
Harte fictitious business name statement as an individual registrant.


                            PROCEDURAL BACKGROUND


       A.     Motion to Amend
       While an initial summary judgment motion directed at the original complaint was
pending hearing, plaintiff moved the trial court for leave to amend his complaint (motion
to amend). Plaintiff sought leave to delete one sentence of his complaint that had alleged
that defendant was a general partner who owned and operated the White Harte. Instead,
plaintiff wished to allege that defendant owned the real property on which the White
Harte was located, and that he leased the real property to codefendant Harte, LLC.
       According to plaintiff’s motion, the proposed new allegations would allow him to
state a claim against defendant for violation of the ADA because that Act and the
regulations promulgated thereunder (28 C.F.R. § 36.201) provide that an owner and
lessor of real property can be held directly liable for a lessee’s refusal to allow a service
dog to accompany a disabled person into a public accommodation located on the
owner/lessor’s real property. Plaintiff further argued that because a violation of the ADA
also constitutes a violation of the Unruh Civil Rights Act and the California Disabled
Persons Act (Civ. Code, §§ 54.1, subd. (d) & 54.2, subd. (b)), he could state claims
against defendant individually in his first cause of action (violation of Unruh Civil Rights
Act), his second cause of action (violation of California Disabled Persons Act), his fourth
cause of action (violation of the ADA), and his seventh cause of action (violation of the
Unruh Civil Rights Act). In making his motion for leave to amend, plaintiff limited his
theory of direct liability against defendant to a single violation of the ADA based on
Moeini’s denial of access to plaintiff’s service dog and defendant’s ownership and lease
of the real property on which the White Harte was located.
       Defendant opposed the motion to amend, but the trial court granted it, allowed
plaintiff to file a first amended complaint, took plaintiff’s initial motion for summary


                                               4
judgment off calendar, and ordered defendant to refile and recalendar a hearing on a
motion for summary judgment directed at the first amended complaint.
       The first amended complaint in fact alleged no specific act or omission by
defendant, relying instead on defendant’s status as an owner of the real property at the
time that Moeini acted to eject plaintiff from the White Harte.


       B.      Summary Judgment Motion
       Defendant filed a motion for summary judgment directed at the first amended
complaint. Based on his facts and evidence discussed above, defendant argued: (i)
plaintiff’s action was based solely on an incident between Moeini and plaintiff, and
defendant was not Moeini’s partner or agent, but rather a member with Moeini in Harte
LLC, the lessee and operator of the White Harte, which meant that, under former
Corporations Code section 17101, subdivision (a) (now section 17703.04), he could not
be held individually liable for the alleged statutory violation of the ADA committed by
Harte LLC; (ii) the purpose of the ADA is limited to prohibiting discrimination with
respect to the design, construction, and alteration of the buildings and facilities of a
public accommodation and it was not intended to address a “one-off” verbal altercation at
a public accommodation; (iii) under the ADA, plaintiff was required to plead and prove
that defendant himself engaged in an act of discrimination against plaintiff with the intent
to discriminate against him, and plaintiff had failed to make any showing as to either
element; (iv) the ADA does not authorize a private party to sue for damages and plaintiff
is not entitled to an injunction against defendant; and (v) the Unruh Civil Rights Act
requires plaintiff to plead and prove that defendant is a business establishment and that
defendant intended to discriminate, and plaintiff did not make any showing as to either
element.


       C.     Opposition to Summary Judgment Motion
       Plaintiff opposed the summary judgment motion based on his facts and evidence
discussed above. He argued that: (i) discrimination against persons with service dogs is


                                              5
prohibited under the ADA (28 C.F.R. § 36.104) and the California Disabled Persons Act
(Civ. Code, § 54.2) and discrimination based on sexual orientation is prohibited under the
Unruh Civil Rights Act (Civ. Code, § 51, subds. (b), (c), & (e)(6)); (ii) defendant is liable
to plaintiff under the ADA because the discrimination prohibited under that Act is not
limited to the physical qualities of a public accommodation (28 C.F.R. § 36.302) and
because, as owner and lessor, he can be liable for violations that occur at a public
accommodation located on his real property (42 U.S.C. § 12182, subd. (a); 28 C.F.R.
§ 36.201, subd. (b)); (iii) plaintiff is not required under the Unruh Civil Rights Act to
prove that defendant intentionally discriminated against him (Munson v. Del Taco, Inc.
(2009) 46 Cal.4th 661, 678); (iv) in addition to business establishments, a “person” can
be liable under the Unruh Civil Rights Act; and (v) in addition to being liable to plaintiff
under the ADA, defendant is liable to plaintiff under state law because a violation of the
ADA is also a violation of the Unruh Civil Rights Act and the California Disabled
Persons Act (Civ. Code, §§ 54.1, subds. (f), (d) & 54.2, subd. (b)).
       Plaintiff’s argument made clear his position that, based on his ownership status
alone, “[d]efendant is liable as a matter of law for the disability discrimination against
[plaintiff ] at the White Harte Public House.” In his opposing separate statement of
undisputed facts, plaintiff agreed that his action was based upon ownership liability and
offered no facts about any specific act or omission by defendant.


       D.     Trial Court’s Ruling
       Following argument on the summary judgment motion, the trial court issued a
minute order that provided as follows: “[Defendant] presents evidence that he is 50%
owner of Harte LLC and Harte LLC is the owner of the subject property. . . . [¶] Motion
for summary judgment is GRANTED. [¶] Claims lack disputed material fact. There are
no facts presented that the Harte LLC had any policies that would support or enforce any
type of discrimination action. All evidence relates to Moeini only. [¶] The court queries
a question of law—can a member of an LLC be liable for the LLC’s purported actions[?]
That answer is “‘no.’” [¶] No member of the limited liability company shall be


                                              6
personally liable for any liability of the limited liability company solely by reason of
being a member of that limited liability company. Corporations Code [section] 17101[,
subdivision] (a). [¶] Case DISMISSED as there are no remaining defendants.”


          E.     Motion to Reconsider
          Following the issuance of the trial court’s order granting the summary judgment
motion and dismissing the action, plaintiff filed a motion to reconsider that order. The
motion was made on the grounds that the trial court had made a mistake of fact by
finding that Harte LLC owned the real property upon which the White Harte was located
and had made a mistake of law by concluding that a public accommodation could not be
liable for disability discrimination unless it had a policy or practice of committing such
discrimination.
          Defendant apparently opposed the motion to reconsider2 and plaintiff filed a reply
brief in support thereof. After hearing argument on the motion, the trial court denied it
on the grounds that it was not based on new facts or law and the required declaration in
support of the motion3 was inadequate.


                                         DISCUSSION


          A.     Standard of Review
          Our review of the trial court’s ruling on the summary judgment motion is
governed by well established principles. “‘“A trial court properly grants a motion for
summary judgment only if no issues of triable fact appear and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also id.,
§ 437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden

2         Defendant’s opposition to the motion to reconsider is not included in the record on
appeal.

3      The required declaration in support of the motion to reconsider is not included in the
record on appeal.

                                                 7
of showing the court that the plaintiff ‘has not established, and cannot reasonably expect
to establish,’” the elements of his or her cause of action. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [30 Cal.Rptr.3d 797, 115 P.3d 77].)’ (Wilson v.
21st Century Ins. Co. (2007) 42 Cal.4th 713, 720 [68 Cal.Rptr.3d 746, 171 P.3d 1082].)
We review the trial court’s decision de novo, liberally construing the evidence in support
of the party opposing summary judgment and resolving doubts concerning the evidence
in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32
Cal.Rptr.3d 436, 116 P.3d 1123].)” (State of California v. Allstate Ins. Co. (2009) 45
Cal.4th 1008, 1017-1018.)
       “We review the trial court’s decision [on a summary judgment motion] de novo,
considering all of the evidence the parties offered in connection with the motion (except
that which the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 612 [76
Cal.Rptr.2d 479, 957 P.2d 1313].) In the trial court, once a moving defendant has ‘shown
that one or more elements of the cause of action, even if not separately pleaded, cannot be
established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to
meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2);
see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [107 Cal.Rptr.2d
841, 24 P.3d 493].)” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
       In analyzing a motion for summary judgment, “‘“‘we identify the issues framed by
the pleadings since it is these allegations to which the motion must respond by
establishing a complete defense or otherwise showing there is no factual basis for relief
on any theory reasonably contemplated by the opponent’s pleading. [Citations.]’”’”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 963.) “‘As a
corollary of the de novo review standard, the appellate court may affirm a summary
judgment on any correct legal theory, as long as the parties had an adequate opportunity
to address the theory in the trial court. [Citation.]’” (California School of Culinary Arts


                                                8
v. Lujan [(2003)] 112 Cal.App.4th [16,] 22.) “‘Regardless of how the trial court reached
its decision, it falls to us to examine the record de novo and independently determine
whether that decision is correct.’” (Carnes v. Superior Court (2005) 126 Cal.App.4th
688, 694 [23 Cal.Rptr.3d 915].) “The sole question properly before us on review of the
summary judgment is whether the judge reached the right result . . . .” (Ibid.) (Lexin v.
City of San Diego (2013) 222 Cal.App.4th 662, 672-673.)


       B.     Order Granting Summary Judgment
       This appeal raises the question whether, based on merely a defendant’s status as
the owner of real property or of an LLC that operates on the property, the defendant is
liable under the ADA for a discriminatory action taken by an individual on the property
and/or the entity that operates on the property. We assume for purposes of this appeal
that the individual, Moeini, committed an ADA violation by ordering plaintiff and his
service dog to leave the White Harte, and that Harte LLC is vicariously liable for this
conduct along with Moeini.


              1. Owner/Lessor Liability Under the ADA in General
       Under the ADA and its implementing regulations, an owner and lessor of a public
accommodation has an affirmative duty to ensure compliance with the equal access
requirements of that Act. “Title III of the ADA establishes that ‘no 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 . . . .’ 42 U.S.C. § 12182(a). ‘Discrimination’ is defined as,
among other things, ‘a failure to make reasonable modifications in policies, practices, or
procedures, when such modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations to individuals with disabilities . . . .’
42 U.S.C. § 12182(b)(2)(A)(ii). The Department of Justice has issued regulations stating
that, ‘generally, a public accommodation shall modify policies, practices, or procedures
to permit the use of a service animal by an individual with a disability.’ 28 C.F.R. §


                                               9
36.302(c)(1). By this regulation the Department of Justice intended that ‘the broadest
feasible access be provided to service animals in all places of public
accommodation . . . .’ 28 C.F.R. Pt. 36, App. B at 697.” (Lentini v. Cal. Ctr. for the Arts
(9th Cir. 2004) 370 F.3d 837, 843, fn. omitted.)
       “Under the ADA, liability attaches to landlords and tenants alike. See 42 U.S.C.
§ 12182(a) (providing that the ADA applies to ‘any person who owns, leases (or leases
to), or operates a place of public accommodation’); 28 C.F.R. § 36.201(b) (providing that
‘both the landlord who owns the building that houses a place of public accommodation
and the tenant who owns or operates the place of public accommodation are’ [subject to
the ADA]). [¶] Nevertheless, 28 C.F.R. § 36.201(b) provides: ‘As between the parties,
allocation of responsibility for complying with the [ADA] may be determined by lease or
other contract.’ 28 C.F.R. § 36.201(b).” (Botosan v. Fitzhugh (S.D. Cal. 1998) 13
F.Supp.2d 1047, 1053-1054.)
       Generally, a plaintiff can sue either the landlord or the tenant in alleging ADA
noncompliance. In Botosan v. Paul McNally Realty (9th Cir. 2000) 216 F.3d 827, the
court explained that an allocation of responsibility for ADA compliance between a
landlord and tenant in a lease is not binding on third parties, such as a disabled person
who has been the victim of disability discrimination. “[T]he regulation [28 C.F.R.
§ 36.201(b)] states that a landlord is a ‘public accommodation,’ which triggers coverage
under Title III. See § 12182(a). Furthermore, the regulation provides that allocation of
responsibility between the landlord and a tenant by lease is effective only ‘as between the
parties.’ 28 C.F.R. § 36.201(b). Thus, contractual allocation of responsibility has no
effect on the rights of third parties. See Independent Living Resources [(D. Or. 1997) 982
F. Supp. [698,] 767. The power to waive or impose liability as against a third party
resides only in Congress, and Congress has stated that both the landlord and tenant are
liable under the Act.” (Id. at p. 833.)




                                             10
              2. Application of General ADA Liability Principles Here
       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. Thus, in amending the complaint while the initial
summary judgment motion was pending, plaintiff limited his theory to liability based
solely on defendant’s status as an owner or lessor under the ADA. According to
plaintiff’s theory, defendant had direct liability to him for the alleged ADA violation
based solely on his status as owner/lessor of the real property upon which the violation
occurred. As plaintiff construes the ADA, he was required to plead and prove only that
(i) a violation of the ADA occurred at the White Harte on the night in question; and (ii)
defendant was the owner/lessor of the real property on which the White Harte was
located. Plaintiff therefore concludes that because there were triable issues as to his
theory of direct liability, i.e., whether the alleged ADA violation occurred and whether
defendant was the owner of the real property on which the White Harte is located, the
summary judgment motion should have been denied.
       Plaintiff’s argument on appeal and his theory of direct liability are based on a
misreading of the ADA and the regulations promulgated thereunder. Although the Act
and the implementing regulations reflect Congress’s intent to impose upon owners/lessors
of public accommodations broad liability for ADA violations that occur at those public
accommodations, that liability is not always based merely on their ownership status
alone. Although in cases involving architectural barriers, the regulatory scheme may
impose on owners a duty based on their status as owners, here the applicable regulation—
28 C.F.R. § 36.302(c)(1)—defines the scope of an owner/lessor’s liability: “[A] public
accommodation [or an owner/landlord] shall modify policies, practices, and procedures to
permit the use of service animals by an individual with a disability.” Under this
regulation, “[a] landlord incurs liability only if the landlord implements a discriminatory
policy, practice, or procedure.” (Haynes v. Wilder Corp. of Delaware (M.D. Fla. 2010)
721 F.Supp.2d 1218, 1228 (Haynes) [finding landlord not liable for alleged



                                             11
discrimination by tenants against handicapped persons, absent a discriminatory policy,
practice, or procedure].)
       The 1991 ADA implementing regulations provide an instructive example, one
which happens to mention service animals: “[I]n general landlords should not be given
responsibility for policies a tenant applies in operating its business, if such policies are
solely those of the tenant. Thus, if a restaurant tenant discriminates by refusing to seat a
patron, it would be the tenant, and not the landlord, who would be responsible, because
the discriminatory policy is imposed solely by the tenant and not by the landlord. If,
however, a tenant refuses to modify a ‘no pets’ rule to allow service animals in its
restaurant because the landlord mandates such a rule, then both the landlord and the
tenant would be liable for violation of the ADA when a person with a service dog is
refused entrance.” (Haynes, supra, 721 F.Supp.2d at p. 1228 [quoting 36 C.F.R. Pt. 36
App. B].)
       Thus, under the facts of this case, defendant’s duty to plaintiff under the ADA
was, at most, limited to ensuring that Harte LLC, the lessee and operator of the public
accommodation, had in place policies, practices, and procedures that would permit the
use of service animals by disabled persons who patronized the White Harte. “In order to
state a claim for violation of Title III, which authorizes private actions only for injunctive
relief, not monetary damages, see, e.g., Powell v. National Board of Medical Examiners,
364 F.3d 79, 86 (2d Cir. 2004), a plaintiff must ‘establish that (1) he or she is disabled
within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of
public accommodation; and (3) that the defendants discriminated against the plaintiff
within the meaning of the ADA,’ Roberts v. Royal Atlantic Corp., 542 F.3d 363, 368 (2d
Cir. 2008), cert. denied, 556 U.S. 1104, 129 S.Ct. 1581, 173 L.Ed.2d 675 (2009); see
Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008) (‘Camarillo’)” (Krist v.
Kolombos Rest., Inc. (2012) 688 F.3d 89, 94-95, italics added.)
       Plaintiff, however, did not plead or provide any proof that defendant violated this
duty and discriminated against him, and instead predicated his theory of direct liability on
the alleged fact of the violation and defendant’s mere ownership of the real property


                                              12
where that alleged violation occurred. Therefore, defendant was entitled to summary
judgment against plaintiff on his ADA cause of action, as well as the derivative state law
causes of action that were predicated on the alleged ADA violation, because he was not
directly liable to plaintiff based merely on his status as owner/lessor of the real property
upon which the White Harte is located.


       C.     Order Denying Motion to Reconsider
       As noted, neither the opposition to the motion to reconsider nor the required
declaration in support of that motion is included in the record. The record is therefore
inadequate to allow us to rule on the merits of plaintiff’s challenge to the order denying
that motion. We therefore affirm the order on that basis.
       Alternatively, based on the record we have, we would nevertheless affirm the
challenged order on the merits. Code of Civil Procedure section 1008, subdivision (a)
requires that the motion be based on new or different facts, circumstances, or law. 4 As
the trial court correctly observed, plaintiff did not base his motion on new facts or law.
Instead, he based his motion on the trial court’s purported mistake of fact—Harte LLC
owned the real property on which the White Harte is located—and the court’s mistake of
law—defendant could only be liable for disability discrimination if he had engaged in a
practice of committing such discrimination. As a result, the order denying the motion to
reconsider must be affirmed.




4      Code of Civil Procedure section 1008, subdivision (a) provides in pertinent part:
“When an application for an order has been made to a judge, or to a court, and refused in
whole or in part, or granted, or granted conditionally, or on terms, any party affected by
the order may, within 10 days after service upon the party of written notice of entry of the
order and based upon new or different facts, circumstances, or law, make application to
the same judge or court that made the order, to reconsider the matter and modify, amend,
or revoke the prior order. The party making the application shall state by affidavit what
application was made before, when and to what judge, what order or decisions were
made, and what new or different facts, circumstances, or law are claimed to be shown.”


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                                    DISPOSITION
      The judgment is affirmed. Defendant is awarded costs on appeal.


                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               RAPHAEL, J.


We concur:



             KRIEGLER, ACTING P. J.



             BAKER, J.




      Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

                                          14
