Motion for Preliminary Injunction

This case arises from the Plaintiff’s claim that he suffered discrimination when the Defendants repeatedly excluded him and his service animal from their markets. The Plaintiff pleads two causes of action: 1) violation of the Unruh Act and 2) injunctive relief.

No trial is set. The case management conference is set for April 3, 2014.

This hearing concerns the Plaintiff’s motion for a preliminary injunction to bar the Defendants from excluding the Plaintiff and his licensed service dog from the Defendants’ supermarkets. CCP section 527(a) requires a motion for a preliminary injunction to establish with facts in affidavits or in a verified complaint that there are grounds to issue a preliminary injunction. Declarations may be used under CCP section 2015.5 because they are equivalent to an affidavit.

Under CCP section 526(a), a preliminary injunction may be issued in the following cases:

1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.
2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.
3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
4) When pecuniary compensation would not afford adequate relief.
5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.
6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.
7) Where the obligation arises from a trust.

The Plaintiff has the burden of establishing grounds exist for the injunction with evidence offered under oath. Ancora-Citronelle Corp. v. Green (1974) 41 Cal. App. 3d 146, 148. The granting or denial of a preliminary injunction rests in the sound discretion of the Court and is based upon a consideration of all the particular circumstances of each individual case. Froomer v. Drollinger (1960) 183 Cal. App. 2d 787, 788-789. If granted, the preliminary injunction does nothing more than to preserve the status quo until the merits of plaintiffs’ claim can be adjudicated. Id.

The Plaintiff’s first cause of action seeks relief based on the violation of the Unruh Civil Rights Act, which is enacted at Civil Code sections 51 et seq. Civil Code section 54.2 states that every individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose, in all places identified in Civil Code section 54.1, which includes places of public accommodation and places where the public are invited such as the Defendants’ supermarket. Section 51 states that all persons within the jurisdiction of California are entitled to full and equal accommodations or services in all business establishments of every kind whatsoever.

These rights may be enforced through a complaint filed under Civil Code section 52, which authorizes an individual to bring an action to seek damages and attorney’s fees from a party that engages in discrimination. Section 52(c) states that the civil complaint shall contain the following:

1) the signature of the person aggrieved;
2) the facts pertaining to the conduct; and
3) a request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.

An initial issue is that the Complaint does not contain the signature of the person aggrieved. The Defendants argue that this required the Plaintiff to verify the Complaint. However, section 52 does not state that the Complaint must be verified; instead, it only requires the signature of the person. There is no legal authority holding that the lack of a signature is grounds for an objection to the pleadings, e.g., through a demurrer.

However, section 52 states that the complaint “shall” include the signature of the aggrieved. The Plaintiff did not comply with this requirement and the Plaintiff offers no explanation for failing to comply with this express requirement.

Instead, the Plaintiff offers legal authority regarding the Fair Employment and Housing Act, which permits the attorney for a plaintiff to sign a verified complaint. See e.g., Blum v. Superior Court (2006) 141 Cal.App.4th 418, 428. The Court reasoned that requiring the party to verify the complaint would not serve the ends of justice and that protecting victims of discrimination can be readily accomplished by an attorney signing the verification for the Complaint.

Further, California law regarding the Unruh Act holds that it must be construed liberally in order to carry out its purpose. Angelucci v. Century Supper Club (2007) 41 Cal. 4th 160, 167-168. The Unruh Act expresses a state and national policy against discrimination on arbitrary grounds. Id. Its provisions were intended as an active measure that would create and preserve a nondiscriminatory environment in California business establishments by “banishing” or “eradicating” arbitrary, invidious discrimination by such establishments. Id. The Unruh Act stands as a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” Id. The Unruh Act, like the common law principles upon which it was partially based, imposes a compulsory duty upon business establishments to serve all persons without arbitrary discrimination. Id. The Unruh Act serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices. Id.

The issue is the proper interpretation of the requirement in section 52(c) that the complaint contain the signature of the person aggrieved. In interpreting a statute, the Court gives the words their ordinary meaning and construing them in a manner consistent with their context and the apparent purpose of the legislation. Angelucci, 41 Cal. 4th, at 168.

Here, it would not serve the ends of justice or protect victims of discrimination if the Courts barred a claim that did not include the signature of the person aggrieved. As noted above, this signature need not be for a verification and could simply be above a signature line in the Complaint. Further, signature need not be verified, the Court could interpret “person” to include the person’s agent, who are individuals that generally sign papers on behalf of the principal. This would permit an attorney, acting as the agent of and on behalf of the party aggrieved, to sign the Complaint. This interpretation would advance the goal of preventing discrimination.

Further, it would not advance the policy “to create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments” to continue the hearing pending the filing of a signature. Accordingly, the Court will hear the pending motion.

The Plaintiff submits evidence in his own declaration to demonstrate that he is a disabled American veteran who obtained a service dog to help manage his disabilities. The Plaintiff states that his service dog is licensed by Los Angeles County as a “California Assistance Animal” and that a copy of the license tag is attached as exhibit 1 to his declaration.

The Plaintiff states in paragraphs 2 to 3 that when he tried to shop at the Defendants’ markets in 2011 and 2013, the markets’ managers or security guards advised the Plaintiff that he could not enter the markets with his dog. The Plaintiff adds that he explained that the dog was a service animal, but the managers or security guards would still refuse to admit the dog. The Plaintiff states that the managers or security guards would offer excuses for the discrimination, e.g., that the Plaintiff was legally required to have paperwork to prove that the dog was a service animal. The Plaintiff states that when he asked what this paperwork was, the managers or security guards would decline to identify the paperwork. Further, the Plaintiff states that he attempted in vain to explain that there was no requirement to provide paperwork or to direct them to the service tag on his dog that indicates that it is a “California Assistance Dog”.

In paragraph 4, the Plaintiff states that he attempted to avoid filing the lawsuit by writing letters that were addressed to the owner of the markets, Hieu Tran, or to the general manager to request that training be provided to the managers and security guards regarding service dogs. The Plaintiff states that he filed this lawsuit because his letters were ignored.

In the opposition papers, the Defendants agree to post signs at the public entrances (see page 2, lines 12 to 14). However, the Defendants argue that the motion for a preliminary injunction should be denied because two security guards, Michael Hoang and San Nguyen, stated in their depositions that they have never seen the Plaintiff and that they have never stopped anyone from entering the market with a dog.

The Defendants provide a portion of Michael Hoang’s testimony. Mr. Hoang states that he works in El Monte market as a security guard. Mr. Hoang testified that he has never asked a person with a dog to leave the El Monte Superstore (portion of deposition transcript in unmarked exhibit, 13:10 to 13). Mr. Hoang stated he has never met a person with a service animal and that he had never met the Plaintiff (28:4 to 12). When asked again whether he had met the Plaintiff, Mr. Hoang stated “I’m sure I never know this man. Never seen him in my life.” (43:9 to 12). Further, Mr. Hoang testified that he would remember the Plaintiff if he had seen him with a dog (43:16 to 18).

In the reply, the Plaintiff offers a video file labeled “El Monte Superstore”. The Plaintiff’s attorney, Glenn Murphy, states that the video was taken by the Plaintiff with his cell phone when he attempted to shop at the Defendants’ El Monte market.

A review of the video file reveals that it is 1 minute and 31 second long and that the cell phone appears to have been on the Plaintiff’s chest while he was walking. In the video, the Plaintiff approaches the market and enters the market. A security guard wearing a beret, sunglasses, and a blue uniform approaches and tells the Plaintiff “No, no, no” and “outside” while gesturing towards the door. The Plaintiff states that his dog is a service dog, but the security guard continues to state “No, no, no” while gesturing towards the door. The Plaintiff then leaves the market.

The security guard has a name “Michael H.” on his uniform. This name matches the security guard whose testimony is cited above, Michael Hoang. Further, the Plaintiff’s attorney, Glenn Murphy states that he has spoken with Michael Hoang and that the security guard in the video is Michael Hoang.

This video contains facts that impeach the deposition testimony of Michael Hoang. The facts in the video demonstrate that Michael Hoang had seen the Plaintiff and that Michael Hoang had required the Plaintiff to leave the market with his dog. Accordingly, the Court assigns little weight to Mr. Hoang’s testimony that he had never seen the Plaintiff and that he had not excluded a person with a service animal from the market. Indeed it seems to be in violation of the oath to tell the truth during the deposition, negating Mr. Hoang’s credibility in this matter.

The Court therefore resolves this dispute by finding that the Plaintiff has demonstrated with a preponderance of the evidence that the employees at the Defendants’ market have engaged in conduct barred under Civil Code section 54.2 by preventing the Plaintiff from using the market while accompanied by his service dog with the facts in the Plaintiff’s declaration and the video file that impeaches the testimony of Michael Hoang. This is sufficient to find that the Plaintiff has established that there are grounds for the relief demanded in his Complaint, i.e., an injunction barring the Defendants from engaging in conduct that violates Civil Code section 54.2. This ruling is not an adjudication of the ultimate rights in the controversy and represents the Court’s discretionary decision whether the Defendants should be restrained from engaging in this conduct pending trial. Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 286.

Further, this preliminary injunction does not alter the status quo. Instead, it restrains the Defendants from violating laws prohibiting discrimination. Since the Defendants should already be complying with these laws, the preliminary injunction will not harm the defendants.

Finally, in making this determination, the Court considers the harm to the plaintiff of denying the injunction relative to the harm to the defendant of granting the injunction. Pleasant Hill Bayshore Disposal v. Chip-It Recycling (2001) 91 Cal. App. 4th 678, 695. Here, the harm to the Plaintiff of denying the injunction is the substantial harm that the Plaintiff will be subject to discrimination because the Defendants may continue to bar him from a place of public accommodation. The harm to the Defendants of granting the injunction is slight because it requires them to comply with the law prohibiting discrimination against persons accompanied by a service animal. When these harms are considered, the harm to the Plaintiff far outweighs any harm to the Defendants.

Therefore, the Court grants the Plaintiff’s motion for a preliminary injunction. The Court Orders that the Defendants cannot exclude the Plaintiff and his licensed service dog or any other persons with licensed service dogs from the Defendants’ supermarkets.

In order to obtain the preliminary injunction, CCP section 529 requires the Plaintiff to provide an undertaking to the effect that Plaintiff will pay to the Defendants any damages they may sustain by reason of the injunction, if the Court finally decides that the Plaintiff was not entitled to the injunction. Here, the damages to the Defendants appear small because Civil Code section 54.3 already prohibits them from excluding exclude the Plaintiff and his service animal from their markets.

Accordingly, the Court sets the undertaking at $1,000.