Martinez v. California Pizza Kitchen, Inc. (2019) · DecisionDepot
Martinez v. California Pizza Kitchen, Inc.
California Court of Appeal Jan 8, 2019 No. JAD18-14Published
Filed 11/20/18 Certified for Publication 12/11/18
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO APPELLATE DIVISION
CHRISTOPHER MARTINEZ, Case No: ACIAS 1800020 Plaintiff and Appellant, (Trial Court: CIVDS1724404)
v. PER CURIAM OPINION CALIFORNIA PIZZA KITCHEN, INC., Defendant and Respondent.
Appeal from judgment of dismissal following order sustaining demurrer to complaint, San Bernardino County Superior Court, San Bernardino District, Michael M. Dest, Judge. Affirmed.
Law Offices of Morse Mehrban, A.P.C; Morse Mehrban for plaintiff and appellant.
Baraban & Teske; James S. Link for defendant and respondent.
THE COURT.* —
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and appellant Christopher Martinez (Martinez) appeals from
a judgment of dismissal which was entered after the trial court sustained,
without leave to amend, a demurrer filed by defendant and respondent
California Pizza Kitchen, Inc. (CPK). In light of the procedural posture of
the case, we assume the truth of the facts properly plead by Martinez, but
not contentions, deductions, or conclusions of fact or law. (Evans v. City of
* Cabrera, P. J., Poncin, J., and Cortez, J.
Berkley (2006) 38 Cal.4th 1, 5.) We likewise accept as true all facts that
may be implied or inferred from the complaint’s express allegations.
(Satten v. Webb (2002) 99 Cal.App.4th 365, 375.) We also consider and
take judicial notice of “any matter of which the court of original jurisdiction
may properly take notice.” (Varcoe v. Lee (1919) 180 Cal. 338, 342.)
In any event, on appeal, and in an unpublished opinion, the circuit
court in Feldman noted that a Department of Justice (DOJ) regulation
implementing the ADA provides that “a public accommodation shall furnish
appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities.” (Feldman, supra,
419 Fed.Appx. at p. 390, citing 28 C.F.R. § 36.303(c).) However, the circuit
court further indicated that neither the ADA nor its implementing
regulations “impart guidance on the specific content that places of public
accommodation must communicate to individuals who are deaf or hard of
hearing.” (Feldman, supra, 419 Fed.Appx. at p. 390.) Instead, “[t]he
regulation contemplates that, like the type of auxiliary aid, the content that
must be communicated by auxiliary aids is also context-sensitive. What
constitutes ‘full and equal enjoyment’ of a place of public accommodation’s
goods, services, facilities, and privileges necessarily varies based on what
the place provides to visitors and consumers.” (Ibid.)
Applying the law to the facts before it, the circuit court in Feldman
agreed with the district court’s determination “that in the context of a
professional football game at a large stadium like FedEx Field, effective
communication requires defendants to provide auxiliary aids beyond
assistive listening devices, which are useless to plaintiffs, to convey the:
(1) game-related information broadcast over the public address system,
including play information and referee calls; (2) emergency and public
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address announcements broadcast over the public address system; and
(3) the words to music and other entertainment broadcast over the public
address system.” (Feldman, supra, 419 Fed.Appx. at p. 391.) The circuit
court reasoned that the plaintiffs “needed access to this aural content to
have full and equal access to the goods and services that defendants
provide at FedEx Field.” (Ibid.)
In so holding, the circuit court in Feldman first defined the “goods
and services” provided by the defendants as an “entertainment
experience” and not just a football game. The court then explained how
each component of the “aural content” was part of the experience. For
instance, the advertisements communicated which entities supported the
Redskins, which causes the Redskins supported, and how spectators
could become involved. The communications also relayed emergency
information which was necessary to the full use and enjoyment of the
experience since the disabled are disproportionately affected by
emergencies. As for the music, even if it involved nonsensical lyrics it still
added to the environment of “collective excitement” that was being
provided as part of the experience. The music also related to synchronized
entertainment such as the half-time show and cheer performances.
(Feldman, supra, 419 Fed.Appx. at p. 391.)
While unpublished opinions from the court of appeal or superior
court appellate division many not be cited or relied upon, unpublished
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federal cases “are citable as persuasive, although not precedential,
authority.” (Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342,
1352.) In this regard, while we are not bound by Feldman, the case is
nevertheless persuasive authority from a federal court interpreting federal
laws and regulations. Additionally, we “defer to the interpretation of a
statute by the agencies charged with administering it,” such as those
regulations referenced in Feldman. (Aluminum Co. of America v.
Bonneville Power Admin. (9th Cir. 1989) 903 F.2d 585, 590.)
Turning to the allegations before us, and consistent with Feldman,
we first define the “goods, services, facilities, privileges, advantages, or
accommodations” being provided by CPK in order to determine whether
Martinez was denied “full and equal enjoyment” thereof. Martinez primarily
alleges that CPK operates a “restaurant and bar.” This is important since,
as noted above, the ADA requirements are context-specific. While there
may be some overlap, the ADA generally recognizes a distinction between
restaurants, bars, and similar “establishments serving food or drink” versus
places of “exhibition or entertainment” such as concert halls and stadiums.
(See 42 U.S.C. 12181, subd. (7).) To the extent CPK provided food, drink,
and the hospitality services normally associated with restaurants, Martinez
has failed to state a valid claim since his suit does not relate to the unequal
enjoyment of those goods and services.
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As for Martinez’ assertion that CPK was playing music over the
speaker system, there are no specific facts alleged to support the
conclusion that the music was part of the overall goods, services, etc.,
being offered by CPK for the use and enjoyment of its patrons. As noted
above, we ignore “contentions, deductions or conclusions of fact or law” in
the complaint. (Adelman v. Associated Intern. Ins. Co., supra, 90
Cal.App.4th at p. 359.) Unlike the facts in Feldman, there is no indication
here that the speaker system was playing advertisements, whether
demonstrating a unique relationship between CPK and its sponsors or
otherwise. In fact, there are no allegations indicating anything was
broadcast over the speaker system other than music. Similarly, there is no
indication that the music was unique to CPK, was live, was part of a
choreographed or promotional event, or was part of the restaurant’s
cultural theme, if any. Furthermore, there is no allegation that the music
was part of an environment of collective excitement, normally seen in the
sporting context, as was the case in Feldman.
By referencing “aurally delivered” as opposed to “orally delivered”
the ADA is meant to include nonverbal sounds, alarms, and computer-
generated speech. (56 F.R. §35544.) However, as the implementing
regulations suggest, one is denied full and equal enjoyment of goods,
services, and the like when, due to a disability and the lack of auxiliary
aids, there is an absence of effective communication relating to those
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goods and services. Absent some additional or unique facts, which
Martinez conceded he could not allege, the music on CPK’s speaker
system was not part of an overall entertainment experience as was the
case in Feldman. Thus, while the music was auditory, it was not part of
that which CPK was required to effectively communicate. While the
complaint does not expressly use the term “background music” as CPK
seems to suggest it does, under the facts alleged the music lacks any
meaningful connection with the goods and services offered by CPK.
Finally, the Circuit Court in McNeil v. Time Ins. Co. (5th Cir. 2000)
205 F.3d 179, 187 noted that while “it is literally possible, though strained,
to construe ‘full and equal enjoyment’ to suggest that the disabled must be
able to enjoy every good and service offered to the same and identical
extent as those who are not disabled ... such a reading is plainly
unrealistic, and surely unintended, because it makes an unattainable
demand.” Overall, the court in McNeil concluded that the ADA prohibits a
place of public accommodation from denying the disabled “access to the
good or service and from interfering with the disableds’ full and equal
enjoyment of the goods and services offered.” (McNeil v. Time Ins. Co.
(5th Cir. 2000) 205 F.3d 179, 188.) Since Martinez was not denied the
food, beverage, or hospitality services offered by CPK and since there are
no facts alleged indicating the music was integrated or otherwise
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connected with the food and services in any meaningful way, the trial court
properly sustained the demurrer and entered judgment.
DISPOSITION
The judgment of the trial court is affirmed.
__________________________________ CARLOS M. CABRERA Presiding Judge of the Appellate Division
__________________________________ LYNN M. PONCIN Judge of the Appellate Division
__________________________________ RODNEY A. CORTEZ Judge of the Appellate Division
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AI Brief
AI-generated · verify before citing
Holding. The court held that a restaurant is not required under the ADA or the Unruh Civil Rights Act to provide auxiliary aids for background music, as such music does not constitute a core good or service whose effective communication is necessary for full and equal enjoyment of the establishment.
Issues
Whether a restaurant's failure to provide auxiliary aids for background music violates the Unruh Civil Rights Act or the Americans with Disabilities Act.
Whether the plaintiff sufficiently alleged that background music was an integral part of the goods and services provided by the defendant.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the ADA requirements are context-specific.”
“there are no specific facts alleged to support the conclusion that the music was part of the overall goods, services, etc., being offered by CPK for the use and enjoyment of its patrons.”
“the music on CPK’s speaker system was not part of an overall entertainment experience”