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Court of Appeal:
Man May Sue for Disability Offense Against Deceased Wife
In a Separate Decision, Panel Holds That Delayed Discovery Rule Applies in Action Under CLRA
By a MetNews Staff Writer
The successor of a disabled person who has died has standing to maintain an action for an injunction requiring removal of a barrier to access and for damages, Div. Three of the Fourth District Court of Appeal held on Friday in one of two cases of first impression it decided that day.
It also determined that the delayed discovery rule applies in an action under the Consumer Legal Remedies Act (“CLRA”).
Justice Eileen C. Moore authored both opinions.
In Saurman v. Peter’s Landing Property Owner LLC, G061561, the appeals court reversed a summary judgment, granted by Orange Superior Court Judge Deborah C. Servino, in favor of the owner of the Pelican Isle Waterfront Dining Restaurant on Pacific Coast Highway in Huntington Beach.
Plaintiff Robert Saurman had been there with his wife, Kathleen Saurman, on Sept. 14, 2014. They were celebrating her 60th birthday.
She had difficulty walking and fell on a small stairway leading to an elevated portion of the restaurant. The woman suffered a broken hip; surgery was performed the following day; she died four days later from an infection.
Robert Saurman sued the then-owner of the restaurant for wrongful death. However, Friday’s opinion is not related to that action, which was the subject of an unpublished Sept. 28, 2020 Court of Appeal opinion.
The current appeal deals with a separate lawsuit filed later. The complaint sets forth causes of action under federal Americans with Disabilities Act (“ADA”), which provides only for injunctive relief, and the state Unruh Act and Disabled Persons Act (“DPA”) which allow the award of damages.
Servino not only granted summary judgment in favor of the defendants, including the restaurant’s present owner, but also imposed sanctions totaling $98,852 on Saurman’s attorney, Charles Sanford Roseman, based on what she perceived to be a frivolous lawsuit.
Moore’s Decision
Moore said Friday it’s not frivolous and summary judgment was improperly granted.
She noted with respect to the action under the ADA:
“It appears that a successor in interest does not have standing in a federal court to bring an ADA claim for injunctive relief.”
For that proposition, she cited the U.S. Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. The jurist continued:
But whether or not a plaintiff has standing to commence an ADA claim in a California state court is determined by state law rather than federal law.”
She pointed to Code of Civil Procedure §377.20(a) which says that “a cause of action for or against a person is not lost by reason of the person’s death,” and Code of Civil Procedure §377.30, providing that “[a] cause of action that survives the death of the person entitled to commence an action...passes to the decedent’s successor in interest.”
Under those statutes, she said, “we find Robert has standing to commence an ADA claim on Kathleen’s behalf in the superior court.”
California Statutes
Moore went on to say:
“The Unruh Act and the DPA allow plaintiffs to seek injunctive relief. Owner does not dispute that the restaurant is currently in the same condition as is it was at the time of Kathleen’s fall; therefore, we find there is a triable issue of fact as to whether Owner is in current violation of the Unruh Act and the DPA, and Robert has standing as a successor in interest to seek to correct these violations.”
The current owner, Gnirob Capital Corporation, argued in its brief on appeal that the cause of action under the DPA “falls short on its merits because the broader standing under the DPA does not extend to family members or successors-in-interest like Plaintiff, but rather to other disabled people who may be ‘potentially aggrieved,’ “ adding:
“Plaintiff does not claim to be disabled himself, has provided no evidence that he is disabled himself and has consistently sought relief solely in his capacity as the Decedent’s successor-in-interest. The scope of DPA standing is not broad enough to include Plaintiff.”
Moore responded:
“But Owner cites no authority for this proposition. We see no reason in law or equity as to why a DPA civil cause of action (or for that matter an Unruh Act cause of action or an ADA cause of action) should somehow be categorically exempt from the survivorship statutes outlined in the Code of Civil Procedure.”
Although Roseman was not an appellant, Moore said, with respect to the sanction order:
“Here, the trial court ordered Robert’s attorney to pay Owner $98,852 in sanctions under section 128.7 on the sole basis that the disability access claims the attorney was pursuing against Owner ‘were factually and legally frivolous.’
“But we have determined Robert’s ADA, Unruh Act, and DPA claims are supported by the facts developed at the summary judgment stage and are arguably legally meritorious (i.e., not frivolous). Thus, we find the trial court erred by imposing the attorney sanctions award.”
Delayed Discovery Rule
In Medina v. St. George Auto Sales, Inc., G063909, Jose Medina sued the seller of an automobile and Alaska Federal Credit Union which financed the purchase. His cause of action was under CLRA which has a three-year statute of limitation.
Medina brought suit nearly four years after the purchase. The issue on appeal was whether the statute of limitation was tolled under the delated discovery rule.
San Bernardino Superior Court Judge Brian S. McCarville, in ruling on a demurrer and on a motion for summary judgment, rejected the defendants’ contention that the action was time-barred. Moore agreed.
The defendants “contend the discovery rule does not apply to the CLRA’s statute of limitations,” she noted, continuing:
“No appellate court within California has squarely addressed this question. We find the discovery rule does apply and publish this case for that reason.”
She noted that California Supreme Court dictum suggests that the delayed discovery rule does apply and “numerous district courts have held the discovery rule applies to the CLRA’s statute of limitations,” adding:
“In contrast, defendants have not cited any case stating the discovery rule does not apply to the CLRA.”
CLRA’s Purpose
Moore reasoned:
“CLRA claims are intended to protect consumers from unfair and deceptive business practices, such as false and deceptive representations….Thus, like fraud claims, which are subject to the discovery rule…, CLRA claims may be difficult for a plaintiff to detect. For example, a consumer might not be aware of product defects that could give rise to a CLRA claim until years after the unfair or deceptive business practice has occurred….Because the injury underlying a CLRA claim may be hidden for years, the discovery rule should be applied to ensure its limitations period does not expire before a plaintiff learns of his or her claim.”
She noted that Medina “has presented evidence showing he failed to understand or appreciate his injury until December 2015,” rendering his action timely.
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