Dennis Perry v. City of Morgan Hill et al.

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 Honorable Nahal Iravani-Sani, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230

DATE: 08/21/2026 TIME: 9:00 A.M. and 9:01 A.M.

LINE 7 25CV464704 Dennis Perry MOTION FOR SUMMARY JUDGMENT/ADJUDICATION v. LINE 8 City of Morgan Hill et LINE 9 al. Please Ctrl Click (or scroll down to) Line 7-9 LINE 10 25CV480258 Shabana Pirani MOTION TO STRIKE v. Sweet Jane Kathleen Hammon Please Ctrl Click (or scroll down to) Line 10

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Calendar Line Nos. 7-9 Case Name: Dennis Perry v. City of Morgan Hill, et al. Case No.: 25-CV-464704

Motions for Summary Judgment, or in the Alternative, Summary Adjudication to the Third Amended Complaint by Defendants California Farmers Market Association, Mohi Farms, Inc., City of Morgan Hill, and Morgan Hill Property and Business Improvement District (sued as Downtown Morgan Hill Improvement District)

Factual and Procedural Background

This is an action for alleged discriminatory practices in public accommodations by plaintiff Dennis Perry (self-represented) (“Plaintiff”) against defendants California Farmers’ Markets Association (“CFMA”), Mohi Farms, Inc. (“Mohi”), City of Morgan Hill (“City”), and Morgan Hill Property and Business Improvement District (sued as Downtown Morgan Hill Improvement District) (“District”) (collectively, “Defendants”).

According to the third amended complaint (“TAC”), Plaintiff is a 78 year old combat veteran who is physically and mentally disabled with PTSD and other health issues which substantially impair his major life activities. (TAC at ¶ 1.) When Plaintiff arrived at events sponsored by Defendants in the City, he claims he was met with accessibility barriers. (Id. at ¶¶ 2, 21-23.) Defendants intentionally blocked handicapped parking spaces at their events and permitted vendors who were not disabled to use handicapped parking for a profit. (Id. at ¶¶ 2, 21-23, 40.)

Defendants also failed to provide alternative temporary handicapped parking at the entrance to their events or reconfigure the events so they would not block existing handicapped spaces. (Id. at ¶ 2.) Thus, Plaintiff was denied full and equal access to the events and became physically and mentally injured when trying to negotiate accessibility barriers. (Ibid.)

In the TAC, now the operative pleading, Plaintiff alleges the following causes of action against Defendants:

(1) Violation of the California Unruh Civil Rights Act; (2) Violation of Government Code § 11135; (3) Violations of the Disabled Persons Act; and (4) Negligence.

Currently before the court are separate motions for summary judgment, or in the alternative, summary adjudication brought by: (1) defendant CFMA; (2) defendant Mohi; and (3) defendants City and District (collectively, “City Defendants”). Plaintiff filed written oppositions. Defendants filed reply papers and evidentiary objections.

Trial is scheduled for September 14, 2026.

Self-Represented Litigants

Self-represented litigants “are held to the same standards as attorneys.” (Kobayashi v. Super. Ct. (2009) 175 Cal.App.4th 536, 543; see also Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1270 [“self-represented litigants are generally entitled to no special

treatment”].) “[M]ere self-representation is not a ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Otherwise, “exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Id. at p. 985.)

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by Defendant CFMA (Line No. 7)

Defendant CFMA argues there is no triable issue of material fact as to the claims in the TAC and thus judgment should be entered as a matter of law. In the alternative, CFMA moves for summary adjudication of the first, third, and fourth causes of action.2

Plaintiff’s Request for Judicial Notice3

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

Here, Plaintiff requests judicial notice of Exhibits 1-9 that constitute various items of evidence in support of his oppositions. But, Plaintiff has not demonstrated that each of these items is a proper subject of judicial notice. (See Evid. Code, § 452 [matters which may be judicially noticed]; In re Gary F. (2014) 226 Cal.App.4th 1076, 1078, fn. 2 [“We conclude that such photographs are not subject to judicial notice under Evidence Code section 452.”]; see also McDermott v. Palo Verde Unified Sch.

Dist. (9th Cir. 2016) 638 F. App’x 636, 638, fn. 1 [denying plaintiff’s request for judicial notice of emails between counsel because “[t]hese documents do not meet the applicable standard for judicial notice”].) Moreover, the court cannot take judicial notice of the truth of any of the public records submitted by Plaintiff. (See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [“While we may take judicial notice of court records and official acts of state agencies [citation], the truth of matters asserted in such documents is not subject to judicial notice.”].)

That said, Plaintiff may still rely on such evidence in support of his opposition to raise a triable issue of fact, assuming the evidence is otherwise admissible and not excluded by a proper objection.

Therefore, Plaintiff’s request for judicial notice is DENIED.

CFMA’s Evidentiary Objections

2 The court notes that defendant CFMA’s separate statement does not comply with California Rules of Court, rule 3.1350(b) as it fails to address the motion for summary adjudication. The court however finds there is no prejudice as this procedural defect did not impact the court’s ability to consider the motion. Moreover, Plaintiff did not appear to be adversely affected as he filed substantive opposition to the motion, including an opposing separate statement. That said, the court reminds defense counsel to file and serve papers in compliance with the rules of court. 3 The request for judicial notice applies to all three motions for summary judgment, or in the alternative, summary adjudication.

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court...” (Code Civ. Proc., § 437c, subd. (c).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff’s Declaration

In reply, defendant CFMA filed evidentiary objections to Plaintiff’s declaration. The court makes the following rulings as to those objections:

The court SUSTAINS Objection Nos. 7, 10-11 on the ground of lack of foundation.

The court SUSTAINS Objection No. 9 on the ground of lack of personal knowledge.

The court SUSTAINS Objection No. 12 on the ground of hearsay.

The court SUSTAINS Objection Nos. 14-15 on the grounds of lack of foundation and lack of personal knowledge.

The court SUSTAINS Objection No. 16 on the ground of an improper legal conclusion.

The court declines to address the remaining objections as they are not material to the outcome of the motion for reasons stated below. (Code Civ. Proc., § 437c, subd. (q).)

Eden Perry Declaration

In reply, defendant CFMA filed evidentiary objections to the declaration of Eden Perry. The court makes the following rulings as to those objections:

The court SUSTAINS Objection Nos. 4 and 6 on the ground of lack of personal knowledge.

The court SUSTAINS Objection No. 9 on the ground of hearsay.

The court SUSTAINS Objection No. 10 on the grounds of lack of foundation and lack of personal knowledge.

The court declines to address the remaining objections as they are not material to the outcome of the motion for reasons stated below. (Code Civ. Proc., § 437c, subd. (q).)

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “The motion for summary

judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The object of the summary judgment procedure is ‘to cut through the parties’ pleadings’ to determine whether trial is necessary to resolve their dispute. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1020 (Spinks).)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Spinks, supra, 171 Cal.App.4th at p. 1021.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. [Citation.] ‘A motion for summary adjudication...shall proceed in all procedural respects as a motion for summary judgment.’ [Citation.]” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630.)

“[S]ummary judgment (or summary adjudication) is a drastic remedy and should be used with caution. [Citation.] Because summary judgment is a drastic procedure all doubts as to the propriety of granting a motion for summary judgment should be resolved in favor of the party opposing the motion. [Citations.]” (Tully v. World Savings & Loan Assn. (1997) 56 Cal.App.4th 654, 660; see Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 684 [“The drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.”].)

First Cause of Action: Violation of the California Unruh Civil Rights Act (Civ. Code, §§ 51-52)

The Unruh Act, codified at Civil Code section 51, prohibits business establishments from discriminating against persons based on their “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” (Civ. Code, § 51, subd. (b).) It “was ‘enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public.’ ” (Thurston v.

Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 305.) The Unruh Act “does not cover ‘discriminations other than those made by a “business establishment” in the course of furnishing goods, services or facilities to its clients, patrons or customers’ ” and “is ‘confined to discriminations against recipients of the “business establishment’s ... goods, services or facilities” ’ ” (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149.) It “creates a cause of action for any person who is denied the right to ‘full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever’ based on” that person’ membership in a protected class. (Mackey v.

Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 660; Civ. Code, § 52.)

The Unruh Civil Rights Act “ ‘must be construed liberally in order to carry out its purpose’ to ‘create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments. [Citation.] The Unruh Civil Rights Act ‘serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.’ ” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,666.)

“A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA (Civ. Code, § (f)); or (2) denial of access to a business establishment based on intentional discrimination.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.)

To establish a claim under the Unruh Act, a plaintiff must prove the following factual elements:

• That defendant denied full and equal accommodations, advantages, facilities, privileges, or services to plaintiff;

• That a substantial motivating reason for defendant’s conduct was his/her perception of plaintiff’s protected category or categories, such as religion, race, national origin, ancestry;

• That the protected category or categories of a person whom plaintiff was associated with was a substantial motivating reason for defendant’s conduct;

• That plaintiff was harmed; and

• That defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

On summary judgment, “the pleadings frame the issues to be resolved. ‘ “The purpose of a summary judgment [adjudication] proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.” [Citation.] “The function of the pleadings in a motion for summary judgment [adjudication] is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” [Citations.]’ [Citations.]” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 477.)

In his TAC, Plaintiff alleges he went to the Farmers Market held in the City owned Depot St. parking lot each Saturday. (TAC at ¶ 13.) The Depot St. parking lot contained two handicapped spaces that were used by non-handicapped vendors. (Ibid.) Plaintiff alleges defendant CFMA failed to “unblock” the two spaces or provide temporary handicapped parking which resulted in denying Plaintiff access to parking at the event. (Ibid.)

On summary judgment, defendant CFMA argues, in part, that it cannot be held liable for any accessibility condition since it was the City’s responsibility to provide adequate handicapped spots. In support, CFMA directs the court to the following material facts in its separate statement which provide:

• Plaintiff admits the City “retained control over the public streets, parking spaces, parking lots, sidewalks, and rights-of-way adjacent to each event, including the authority to enforce parking regulations, designate temporary accessible parking, and ensure ADA compliance.”

• Plaintiff acknowledged that it is “the City’s responsibility to provide adequate handicapped spots.” (See CFMA’s Sep. Stmt. of Undisputed Facts [“SSUF”] at Nos. 5-6.)

In opposition, Plaintiff does not dispute the City’s authority over adjacent parking areas or to provide adequate accessible handicapped parking. Rather, Plaintiff contends defendant CFMA has a separate event-level duty and responsibility for “accessibility conditions within the permitted market footprint.” (See Plaintiff’s Disputed Facts at Nos. 5-6; Plaintiff’s Additional Facts at Nos. 3-6, 13-15.) But, as pointed out in reply, this separate event-level duty is a new legal theory which is not supported by allegations in the operative pleading. (See Whelihan v.

Espinoza (2003) 110 Cal.App.4th 1566, 1576 [“a party cannot successfully resist summary judgment on a theory not pleaded”]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258, fn. 7 [“To allow an issue that has not been pled to be raised in opposition to a motion for summary judgment in the absence of an amended pleading, allows nothing more than a moving target.”].) Nor does the opposition contain admissible evidence demonstrating that CFMA possessed such authority.

Thus, the court finds there is no viable claim under the Unruh Civil Rights Act. Having done so, the court declines to address the remaining arguments in the moving papers.4

4 In reply, defendant CFMA argues the Unruh Act claim fails for lack of evidence of intentional discrimination or a statutory violation attributable to CFMA. The court declines to consider this argument as it is being raised for the first time in the reply papers. (See Tyler v. Children’s

Third Cause of Action: Violation of the Disabled Persons Act (Civ. Code, §§ 54-54.3)

Whereas the Unruh Civil Rights Act bars discrimination against several classes of individuals, the Disabled Persons Act (“DPA”) more narrowly protects those who suffer from disabilities. (Turner v. Association of America Medical Colleges (2008) 167 Cal.App.4th 1401, 1411 (Turner).)

“Under the DPA, ‘Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places.’ [Citation.]” (Turner, supra, 167 Cal.App.4th at p. 1411.)

“The DPA is ‘intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public.’ [Citation.] Its focus is upon physical access to public places, though the statute may also be construed as requiring equal physical access to a nontangible location such as an Internet site. [Citations.] Although the DPA now protects persons with mental disabilities, the published cases have involved challenges of physically disabled individuals denied access to some public site or service due to their disability. [Citations.]” (Turner, supra, 167 Cal.App.4th at p. 1412; see Hankins v.

El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 515 [patron on crutches denied permission to use the only bathroom on first floor, which was reserved for employees]; see also Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1186-1187 [quadriplegic could not access bank’s automatic teller machine from wheelchair due to the steps in front of it].)

Moreover, Civil Code section 54.3 imposes a standing requirement that the plaintiff have suffered an actual denial of equal access before any suit for damages can be brought. A plaintiff cannot recover damages under section 54.3 unless the violation actually denied him or her access to some public facility. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 (Reycraft).) Standing under the DPA requires something more than mere awareness of or a reasonable belief about the existence of a discriminatory condition. (Id. at p. 1221.)

In the third cause of action, Plaintiff alleges he was denied access to Defendants’ services when he attended events at the Farmers Market as defendant CFMA blocked two handicapped spaces. (TAC at ¶ 48.) This claim fails for the same reasons stated above in connection with the first cause of action. (See CFMA’s SSUF at Nos. 5-6.) Furthermore, CFMA submits undisputed evidence showing that Plaintiff was not personally turned away from events hosted by CFMA. (Id. at Fact No. 7.) Again, without evidence denying Plaintiff physical access to a public place, there can be no liability under the DPA. Such is the case here and thus the court concludes there is no viable claim under the DPA to overcome the instant motion for summary judgment and summary adjudication.

Fourth Cause of Action: Negligence

Home Society (1994) 29 Cal.App.4th 511, 526, fn. 8 [“it is unfair to raise new arguments for the first time in a reply brief; we therefore need not consider the contention”].)

“To prevail in a negligence action, a plaintiff must establish the defendant owed a legal duty, the defendant breached that duty, and the breach proximately caused the plaintiff’s damages.” (Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 278 (Archer).)

“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)

“ ‘Absent a legal duty, any injury is an injury without actionable wrong. [Citation.] “Duty, being a question of law, is particularly amendable to resolution by summary judgment.” ’ [Citation.]” (Archer, supra, 53 Cal.App.5th at p. 278.)

“A defendant’s control over property is sufficient to create a duty to protect owed to persons using the property. [Citations.] Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property. [Citations.]” (Colonial Van & Storage, Inc. v. Super. Ct. (2022) 76 Cal.App.5th 487, 497.)

In the fourth cause of action, Plaintiff alleges Defendants had a duty to operate the public events in a reasonably safe manner, including a duty not to block designated accessible parking spaces. (TAC at ¶ 50.) Defendants breached that duty by physically blocking one or more designated accessible parking spaces. (Id. at ¶ 50.)

Here, there is no duty to support negligence as defendant CFMA submits evidence showing it did not have control, ownership, or authority to maintain the handicapped parking spaces. (See CFMA’s SSUF at Nos. 2-6.) As stated above, that responsibility belongs to the City. Absent a duty, there is no viable claim for negligence and thus summary judgment is warranted.5

Accordingly, the motion for summary judgment to the TAC by defendant CFMA is GRANTED.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by Defendant Mohi (Line No. 8)

Defendant Mohi argues there is no triable issue of material fact as to the claims in the TAC and thus judgment should be entered as a matter of law. In the alternative, Mohi moves for summary adjudication of the first, third, and fourth causes of action.6

Mohi’s Request for Judicial Notice

The request for judicial notice of Plaintiff’s TAC (Ex. 1) is DENIED as the court must necessarily consider allegations of the challenged pleading in addressing a motion for summary judgment or summary adjudication. (See AARTS Productions, Inc. v. Crocker National Bank

5 Having disposed of the negligence claim on the issue of duty, the court declines to consider the alternative argument based on causation. 6 In opposition, Plaintiff argues the notice of motion is defective as it fails to comply with California Rules of Court, rule 3.1350(b). The court is not persuaded and finds the notice of motion sufficiently satisfies the rules of court.

(1986) 179 Cal.App.3d 1061, 1064 [on a motion for summary judgment, the court first identifies 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].)

The request for judicial notice of this court’s order on demurrer to the second amended complaint (Ex. 2) and Declaration of Chris Ghione in support of the City Defendants’ motion for summary judgment and summary adjudication (Ex. 3) is DENIED as these exhibits are not relevant to resolving issues raised by the motion for reasons articulated below. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand]; see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].) Mohi’s Evidentiary Objections

In reply, defendant Mohi filed objections to evidence incorporated in Plaintiff’s opposition. The court makes the following rulings as to those objections:

The court SUSTAINS Objection Nos. 2-4 on the grounds of lack of personal knowledge and speculation.

The court SUSTAINS Objection No. 7 on the grounds of hearsay, lack of foundation, and lack of personal knowledge.

The court SUSTAINS Objection Nos. 9-10 on the ground of lack of foundation.

The court declines to address the remaining objections as they are not material to the outcome of the motion for reasons explained below. (Code Civ. Proc., § 437c, subd. (q).)

First Cause of Action: Violation of the California Unruh Civil Rights Act (Civ. Code, §§ 51-52)

In order to establish a case under the Unruh Act, a plaintiff must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. (Hankins v. El Torito Rests. (1998) 63 Cal.App.4th 510, 517-518.)

In the first cause of action, Plaintiff alleges defendant Mohi intentionally discriminated against him by denying him full and equal accommodations, advantages, facilities, privileges and services because of his disabilities and medical conditions. (TAC at ¶ 40.)

On summary judgment, defendant Mohi argues there is no evidence to suggest that Mohi intentionally discriminated against Plaintiff on the basis of his disability. (See Mohi’s SSUF at Nos. 30-36.) In opposition, Plaintiff contends there is evidence supporting intentional discrimination under the Unruh Act. (See Plaintiff’s Disputed Facts at Nos. 30-36; Plaintiff’s Additional Facts at Nos. 1-2, 5-8, 9-17.) Plaintiff’s evidence however does not establish that Mohi engaged in intentional discrimination on the basis of his disability and thus fails to raise a triable issue of material fact.

Therefore, the court concludes there is no viable claim under the Unruh Civil Rights Act. Having disposed of the first cause of action on this ground, the court declines to consider defendant Mohi’s remaining arguments on summary judgment.

Third Cause of Action: Violation of the Disabled Persons Act (Civ. Code, §§ 54-54.3)

“[S]tanding under section 54.3 of the DPA is established where a disabled plaintiff can show he or she actually presented himself or herself to a business or public place with the intent of purchasing its products or utilizing its services in the manner in which those products and/or services are typically offered to the public and was actually denied equal access on a particular occasion.” (Reycraft, supra, 177 Cal.App.4th at p. 1224.)

In the third cause of action, Plaintiff alleges defendant Mohi denied him full and equal access to its services when he attended events. (TAC at ¶ 48.)

On summary judgment, defendant Mohi asserts that Plaintiff lacks standing under the DPA as Mohi did not deny him physical access to any Mohi event or service. (See Mohi’s SSUF at Nos. 39-40.) The evidence here establishes that Plaintiff: (1) had no ticket and no intention of attending any Mohi event; and (2) Plaintiff could not identify Mohi as the party responsible for placing obstructions on or near the designated accessible parking spaces at issue in the case. (Ibid.) With this evidence, Mohi meets its initial burden as a trier of fact may find that Mohi did not physically deny access to Plaintiff as to any Mohi event or service.

In opposition, Plaintiff’s supporting memorandum does not substantively address the standing argument. (See OPP at pp. 13:20-14:14.) Plaintiff however does direct the court to the following evidence incorporated in: (1) Plaintiff’s Disputed Facts at Nos. 39-40; and (2) Plaintiff’s Additional Facts at Nos. 1, 5-13, and 16-17. The court has reviewed these disputed and additional facts and finds that such evidence does not raise a triable issue of material fact to defeat the motion as to the third cause of action.

Thus, the court concludes there is no viable claim under the DPA.

Fourth Cause of Action: Negligence

In the fourth cause of action, Plaintiff alleges Defendants had a duty to operate the public events in a reasonably safe manner, including a duty not to block designated accessible parking spaces. (TAC at ¶ 50.) Defendants breached that duty by physically blocking one or more designated accessible parking spaces. (Id. at ¶ 50.)

On summary judgment, defendant Mohi proffers evidence showing there is no duty or breach of duty to support negligence as defendant Mohi was not responsible for obstructing the designated parking spaces. (See Mohi’s SSUF at Nos. 6-7, 40; Morales Decl. at ¶¶ 2-4.)

In opposition, Plaintiff argues the negligence claim is disputed as defendant Mohi controlled, directed, coordinated and participated in the events and setup for the subject events. (See Plaintiff’s Disputed Facts at Nos. 6-7, 40; Plaintiff’s Additional Facts at Nos. 1, 5-17.) The court has reviewed these disputed and additional facts and concludes they do not raise a triable

issue of material fact to overcome the motion with respect to the fourth cause of action. Thus, there is no viable claim for negligence.7

Accordingly, the motion for summary judgment to the TAC by defendant Mohi is GRANTED.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by the City Defendants (Line No. 9)

The City Defendants argue there is no triable issue of material fact as to the claims in the TAC and thus judgment should be entered as a matter of law. In the alternative, the City Defendants move for summary adjudication of the first, second, and third causes of action.8

City Defendants’ Evidentiary Objections

Plaintiff’s Declaration

In reply, the City Defendants filed evidentiary objections to Plaintiff’s declaration. The court makes the following rulings as to those objections:

The court SUSTAINS Objection Nos. 7-8, 13, 29, and 33 on the grounds of lack of foundation and speculation.

The court SUSTAINS Objection Nos. 9-10, 19, 22 and 32 on the grounds of lack of foundation, speculation, and lack of personal knowledge.

The court SUSTAINS Objection No. 24 on the ground of hearsay.

The court SUSTAINS Objection No. 28 on the grounds of lack of foundation, speculation, and improper opinion.

The court declines to address the remaining objections as they are not material to the outcome of the motion for reasons articulated below. (Code Civ. Proc., § 437c, subd. (q).)

Eden Perry Declaration

In reply, the City Defendants filed evidentiary objections to the declaration of Eden Perry. The court makes the following rulings as to those objections:

The court SUSTAINS Objection Nos. 2-3, 5-6, 10-11, and 18 on the grounds of lack of foundation and speculation.

The court SUSTAINS Objection Nos. 28-29 on the ground of lack of personal knowledge.

7 Having disposed of the negligence claim on the issues of duty and breach of duty, the court declines to consider the remaining argument based on causation. 8 In opposition, Plaintiff argues the notice of motion is defective as it fails to comply with California Rules of Court, rule 3.1350(b). The court disagrees and concludes the notice of motion adequately satisfies the rules of court.

The court declines to address the remaining objections as they are not material to the outcome of the motion for reasons explained below. (Code Civ. Proc., § 437c, subd. (q).)

First Cause of Action: Violation of the California Unruh Civil Rights Act (Civ. Code, §§ 51-52)

On summary judgment, the City Defendants argue the Unruh Civil Rights claim fails, as a matter of law, as neither entity constitutes a “business establishment” as that term is defined under the statute.

“The Unruh Civil Rights Act allows recovery of damages for discrimination ‘ “by a ‘business establishment’ in the course of furnishing goods, service or facilities to its clients, patrons, or customers.” ’ [Citation.] ... An organization has sufficient businesslike attributes to qualify as a business establishment when it ‘appears to have been operating in a capacity that is the functional equivalent of a commercial enterprise.’ [Citation.]” (Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 825 (Carter).)

California courts have generally determined that cities and counties do not constitute “business establishments” for purposes of the Unruh Act. (See Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 173 [holding the city was not acting as “business establishment” within the meaning of the Unruh Act when it amended existing municipal code]; Carter, supra, 224 Cal.App.4th at p. 825 [“We think a public entity providing sidewalks and curbs to its citizens does so as a public servant, not a commercial enterprise.”]; Brennon B. v. Super. Ct. (2022) 13 Cal.5th 662, 684 [for the Unruh Act to apply, the entity at issue must resemble an ordinary for-profit business]; see also Romstad v. Contra Costa Cty. (9th Cir. 2003) 41 Fed. App’x 43, 45 [affirming the decision holding the county social services department did not qualify as a business establishment].)

In support, the City Defendants rely on the following material facts in their separate statement to establish that they are not a “business establishment” under the Unruh Civil Rights Act:

• The City is a governmental entity who was performing a quintessential governmental function in regulating the streets.

• The City Council of Morgan Hill, an elected legislative body, formally authorized the creation of the District and adopted the Management District Plan.

• The District provides public services including street cleaning, safety patrols, capital improvements, events and marketing.

• The District only operates in a geographically delimited area defined by City ordinance.

• The District is a governmental instrumentality, created by the City pursuant to statute, funded by mandatory public assessments, and charged with performing public functions within a defined municipal boundary.

• The District is funded by assessments levied on the property owners within the District’s geographical boundaries. (See City Defendants’ SSUF at Nos. 1-6; see also Carter, supra, 224 Cal.App.4th at p. 825 [no California court would likely consider a municipal entity to be liable under the Unruh Civil Rights Act].)

In opposition, Plaintiff contends there are disputed issues as to whether the City Defendants operated as a commercial enterprise. (See Plaintiff’s Disputed Facts at Nos. 1-6; Plaintiff’s Additional Facts at Nos. 4-14, 17-18.) The court disagrees and concludes that Plaintiff fails to raise a triable issue of material fact. Specifically, Plaintiff does not submit admissible evidence demonstrating that the City Defendants engaged in any commercial enterprise to support liability under the Unruh Civil Rights Act and thus the first cause of action fails as a matter of law.

Second Cause of Action: Violation of California Government Code § 11135

The second cause of action is a claim for violation of California Government Code section 11135 against the City. That section provides in pertinent part:

“No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.” (Gov. Code, § 11135, subd. (a).)

In the second cause of action, Plaintiff alleges the City receives state financial assistance and operates programs and activities that are subject to section 11135. (TAC at ¶ 43.) Plaintiff alleges that designated accessible parking spaces in City controlled public streets and City owned parking lots were blocked or unavailable, and no temporary accessible parking was provided. (Ibid.)

On summary judgment, the City contends there is no viable claim under section 11135 as: (1) the City’s street and parking stall maintenance is funded solely by local revenue bonds, general fund money, or local assessment district funds; and (2) the City provided alternative accessible parking within close vicinity to the market. (See City Defendants’ SSUF at Nos. 8-9.)

In opposition, Plaintiff asserts a triable issue of fact exists as the City’s budget includes state funding for streets, roads, and access improvements. (See Plaintiff’s Additional Fact at No. 15.) This broad assertion however is not supported by the evidence cited in opposition. Plaintiff also directs the court to his additional facts at numbers 4-14 but this evidence also fails to raise any triable issue of material fact to defeat the motion.

Accordingly, there is no viable claim for a violation under Government Code section 11135.

Third Cause of Action: Violation of the Disabled Persons Act (Civ. Code, §§ 54-54.3)

In the third cause of action, Plaintiff alleges the City Defendants, like the other defendants, denied him full and equal access to their services when he attended events. (TAC at ¶ 48.) Again, this denial is in the form of blocking and obstructing handicapped parking spots. (Ibid.)

On summary judgment, the City Defendants argue Plaintiff was not denied access to City accommodations as the City provided alternative accessible parking within close vicinity of the market. (See City Defendants’ SSUF at No. 10.) Since alternative parking was available, the City Defendants assert there is no violation under the DPA.

In support, the City Defendants rely on Urhausen v. Longs Drug Stores Cal., Inc. (2007) 155 Cal.App.4th 254 (Urhausen) which the court finds instructive. There, a disabled plaintiff visited a drug store and chose to park in an ordinary parking space instead of an unoccupied parking space for use by disabled persons. (Urhausen, supra, 155 Cal.App.4th at p. 257.) As the plaintiff walked from her parking space to the store, she did not use the disabled access aisle and curb, but instead chose to walk across a non-access aisle where she encountered a non-compliant curb. (Id. at pp. 258-260.)

Ultimately, the curb was too steep, causing the plaintiff to fall and fracture her wrist. (Ibid.) The First Appellate District held that the plaintiff did not establish statutory standing for her damages claim because the drug store provided an alternate means of access by way of a disability access aisle. (Id. at p. 262.) Because that alternate means of access was available, the drug store did not actually deny access. (Id. at pp. 263-265.) The Court of Appeal explained it this way:

“While we recognize that the failure of the parking space to comply with slope requirements was the cause of plaintiff’s injury, and therefore a cause of her failure to reach the entrance of the drugstore, we do not believe that this is sufficient to demonstrate that plaintiff was denied equal access to the store. The phrase ‘denied equal access’ necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access. It is undisputed, however, that Longs provided access to its entrance by way of an aisle, curb cut, and ramp installed for the particular use of the disabled. Because this means of access was at all times available for plaintiff’s use, she cannot demonstrate that she was denied equal access to the store without demonstrating that this route, too, was inadequate.” (Id. at p. 263.)

The appellate court reasoned that “equat[ing] a denial of equal access with the presence of a violation of federal or state regulations would ... eliminate any distinction between a cause of action for equitable relief under section 55 and a cause of action for damages under section 54.3.” (Urhausen, supra, 155 Cal.App.4th at p. 266.)

In opposition, Plaintiff fails to distinguish Urhausen. Instead, Plaintiff contends he had to use farther alternative lots for parking despite his health-related issues. (See Plaintiff’s Disputed Fact at No. 10; Plaintiff’s Additional Facts at Nos. 5-9, 12-13.) But, this contention is not compelling as the inconvenience attributed to Plaintiff with respect to parking in another lot cannot be equated with a denial of access. Urhausen suggests that a denial of access could be shown if the alternative route was inadequate. (Urhausen, supra, 155 Cal.App.4th at p. 263.) Plaintiff fails to make that showing here and thus fails to raise a triable issue of material fact to defeat the motion as to the third cause of action.

Fourth Cause of Action: Negligence

In the fourth cause of action, Plaintiff alleges the City Defendants had a duty to operate the public events in a reasonably safe manner, including a duty not to block designated accessible parking spaces. (TAC at ¶ 50.) The City Defendants breached that duty by physically blocking one or more designated accessible parking spaces. (Id. at ¶ 50.)

“Public entities in California are not liable for tortious injury unless liability is imposed by statute. [Citation.] ‘[S]overeign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.’ [Citations.]” (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427 (San Mateo Union); Gov’t Code, § 815, subd. (a) [“A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”].)

“This means that the ‘ “liability of public entities must be based on specific statute declaring them to be liable, or at least creating some specific duty of care” ’ to the plaintiff. [Citations.] ‘The law’s clear purpose was “ ‘ “not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.” ’ ” [Citation.]’ [Citation.]” (San Mateo Union, supra, 213 Cal.App.4th at p. 428.)

On summary judgment, the City Defendants argue there is no statutory basis alleged in the operative pleading to hold them liable for negligence as they constitute public entities. (See City Defendants’ SSUF at Nos. 14-16.) Absent a statute, there is no viable claim for negligence against the City Defendants.

In opposition, Plaintiff attempts to hold the City Defendants liable for negligence under Government Code section 835 for an injury caused by a dangerous condition of public property or Government Code section 815.6 addressing the mandatory duty of a public entity. (See OPP at p. 18:2-17.) But, as pointed out in the reply papers, the court cannot consider these sections as they have not been pled in the TAC. (Reply at p. 8:12-24.) “A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citation.]

A plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90.) No such motion to amend is before the court and this court cannot rely on an unpleaded theory to defeat the instant motion for summary judgment. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“[T]he burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”]; see also Millard v.

Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353 [plaintiff whose complaint alleged negligence but not a theory of negligence per se and who did not seek to amend complaint to include such allegations cannot defeat summary judgment by raising a theory of negligence per se].)

Consequently, the motion for summary judgment is GRANTED.9

9 Having disposed of the negligence claim based on Plaintiff’s failure to allege a statutory basis for liability, the court declines to consider the remaining arguments based on government immunity and causation.

Request for Fees and Costs

The request for fees and costs by the City Defendants under Code of Civil Procedure section 1038 is DENIED WITHOUT PREJUDICE subject to the filing and service of a noticed motion. (See Gamble v. Los Angeles Dept. of Water & Power (2002) 97 Cal.App.4th 253, 257 [“section 1038 requires a noticed motion”]; see also Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 862 [“[B]efore denying a section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action’s justifiability and with objective reasonable cause.”].)

Disposition

The motions for summary judgment to the TAC are GRANTED.

The request for fees and costs by the City Defendants under Code of Civil Procedure section 1038 is DENIED WITHOUT PREJUDICE subject to the filing and service of a noticed motion.

The court will prepare the order.

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