1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:19-cv-06036-SB-JEM 11 ANTONIO FERNANDEZ,

12 FINDINGS OF FACT AND

CONCLUSIONS OF LAW

13 Plaintiff,

14 v. Trial: February 23, 2021

15 STEPHEN A. FISHER, in individual 16 and representative capacity as trustee of the Stephen A. Fisher and Stephanie L. 17 Fisher Family Trust; STEPHANIE L. 18 FISHER, in individual and representative capacity as trustee of the 19 Stephen A. Fisher and Stephanie L. 20 Fisher Family Trust; and O’REILLY AUTO ENTERPRISES, LLC, a 21 Delaware Limited Liability Company, 22 Defendants. 23

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25 The Court held a bench trial in this case on February 23, 2021 at 8:30 a.m. 26 Plaintiff Antonio Fernandez was represented at trial by Raymond G. Ballister, Jr. 27 Defendants Stephen A. Fisher, Stephanie L. Fisher, and O’Reilly Auto Enterprises, 28 1 LLC (Defendants) were represented at trial by Peter S. Doody. All witnesses 2 submitted their direct testimony by declaration. The parties stipulated to the 3 admission of the written direct testimony of Plaintiff’s witness Evens Louis without 4 cross-examination and to the admissibility of Plaintiff’s exhibits 1 through 6. The 5 parties also stipulated that the Court could consider the declarations previously 6 submitted by Plaintiff and Mr. Louis in support of Plaintiff’s summary judgment 7 motion. After evaluating the evidence at trial, including witness credibility, the Court 8 issues the findings of fact and conclusions of law set forth below. 9 FINDINGS OF FACT1 10 1. Plaintiff is disabled within the meaning of the Americans with 11 Disabilities Act (ADA). 12 2. The Stephen A. Fisher and Stephanie L. Fisher Family Trust (the Trust) 13 owned the real property located at 3431 E. Caesar E. Chavez Avenue, Los Angeles, 14 California, in June 2019. The Trust currently owns that same real property. 15 3. O’Reilly Auto Enterprises, LLC (O’Reilly) owned and operated the 16 O’Reilly Auto Parts store, located at 3431 E. Caesar E. Chavez Avenue, Los Angeles, 17 California (Store), in June 2019. O’Reilly currently owns and operates the Store. The 18 Store is a business establishment open to the public. 19 4. The Store has several counters for customer transactions: a number of 20 higher counters; and one lower counter that is undisputedly ADA-compliant as built. 21 5. Plaintiff visited the Store on June 17, 2019. 22 6. The distance between the Store and Plaintiff’s home is unclear because 23 Plaintiff provided inconsistent statements at trial: Plaintiff provided a specific 24 estimate in his written direct testimony, stating that the Store is less than ten miles 25

26 1 The characterization of a finding as one of “fact” or “law” is not controlling. To the 27 extent that a finding is characterized as one of “law” but is more properly characterized as one of “fact” (or vice versa), substance shall prevail over form. 28 1 from his home (Dkt. No. 84-1 ¶ 25); on cross-examination, however, Plaintiff testified 2 he had no idea whatsoever about the distance and could not even provide a rough 3 estimate. 4 7. While visiting the Store, Plaintiff purchased a fuse. Plaintiff did not 5 conduct his transaction at the lower counter. The transaction occurred at one of the 6 higher counters. 7 8. Plaintiff provided at least three different accounts of his interaction with 8 the sales associate at the Store during his transaction. 9 9. In his declaration submitted in support of Plaintiff’s motion for summary 10 judgment, Plaintiff claimed he was not served at the lower counter because it was 11 cluttered. He stated that he asked to be served at the lower counter, but the Store 12 employee explained she would assist him at the higher counter because the lower 13 counter was “full of stuff.” Dkt. No. 52-5 ¶ 6. Plaintiff suggested that the problem 14 was the condition of the lower counter, not the employee’s willingness to assist him 15 there. He declared: “I am currently deterred from visiting the Store because of my 16 knowledge of the condition of sales counters. However, once it has been represented 17 to me that the violations have been removed, I plan to visit the Store to shop and also 18 to assess it for compliance with the access laws.” Id. ¶¶ 13-14. 19 10. In his written direct testimony at trial, Plaintiff stated that he asked to be 20 served at the lower counter, but that it was unstaffed and the sales associate—whom 21 he specifically identified as being “female”—purportedly refused his request, “stating 22 that the lowered counter was full of merchandise and that she could help [him] at the 23 higher counter.” Dkt. No. 84-1 ¶¶ 11, 14-17. This time, however, Plaintiff claimed 24 that he was deterred from returning to the Store because he fears the employees will 25 not assist him at the lower counter. After noting his eagerness to return to the Store 26 because of its close proximity to his home and its ADA-accessible counter, he states: 27 “I am currently not going back to the Store because I do not know the employees will 28 help me at the lowered sales counter.” Id. ¶¶ 25-27. 1 11. During his re-direct examination at trial, Plaintiff testified that he 2 interacted with a male (not a female) employee. He stated that when he asked to be 3 served at the lower counter, the male employee told him that it would be too 4 burdensome to change registers because there were other people waiting in line, there 5 was no money in the register at the lower counter, and the male employee would have 6 to set up the register at the lower counter. Plaintiff repeated several times that the 7 male employee told Plaintiff that the register at the lower counter was not set up to 8 serve customers. 9 12. During re-cross examination, Plaintiff stated that employee was female 10 (not male), and that the female employee did not provide any specific reason for 11 refusing to serve Plaintiff at the lower counter. 12 13. Plaintiff has not returned to the Store since June 17, 2019. As noted, he 13 has provided two different explanations for not returning—the cluttered condition of 14 the lower counter (the summary judgment position); and the employee’s purported 15 refusal to assist him at the lower counter (the trial position). 16 14. The shift in position is unmistakable. Plaintiff previously moved for 17 summary judgment on the grounds that the lower counter was too cluttered to allow 18 him to conduct his transaction there. In furtherance of this barrier theory, Plaintiff 19 sought “an injunction requiring Defendants to provide and maintain an accessible 20 sales counter at the Store.” Dkt. No. 52-1 at 17. There was no request for a 21 modification of any policy or practice. 22 15. At trial, Plaintiff abandoned his barrier theory and advanced a new theory 23 that Defendants have a policy or practice of refusing to serve customers with 24 disabilities at the lower counter. Plaintiff testified that the items he saw on that 25 counter readily could be removed if only the Store employee were willing. Plaintiff’s 26 counsel remarked in his closing argument that this case is not about easily removeable 27 counter clutter but about an employee’s “apparently groundless refusal” to serve 28 Plaintiff at the lower counter. Plaintiff’s counsel requested an injunction requiring 1 Defendants to establish and maintain “a policy, practice, and procedure” of serving 2 persons with disabilities at the lower counter. 3 16. Jose Montellano, a Regional Manager for O’Reilly, testified at trial. The 4 Store is within his region. Dkt. No. 83 ¶ 2. Mr. Montellano testified that O’Reilly’s 5 policy is to comply with Title III of the ADA and its accessibility requirements, and 6 that O’Reilly provides ADA training to Store team members to ensure they are 7 knowledgeable and compliant. Id. ¶ 5. 8 17. Mr. Montellano testified that the Store does not have a policy or practice 9 of refusing to serve a person with disabilities at the lower counter, and that an 10 employee’s refusal to serve a person in a wheelchair at the lower counter would be 11 contrary to policy. The Court found this testimony to be credible. 12 18. On the other hand, the Court generally did not find Plaintiff to be 13 credible. Plaintiff appeared to be more of an advocate than a witness—and an 14 advocate who was careless with the facts and emboldened by his cause. Even a 15 worthy cause is bound to honor the solemnity of the oath and respect the integrity of 16 the judicial system. 17

CONCLUSIONS OF LAW

18 19 19. The elements of proof of a “policy claim” under the ADA, as set forth in 20 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004), are distinct from 21 the elements of proof of a “barrier claim” under the ADA. See Karczewski v. DCH 22 Mission Valley LLC, 862 F.3d 1006, 1012 (9th Cir. 2017) (noting the differences 23 between ordinary “architectural barriers” claims and “policy or practice” claims). 24 20. A barrier claim requires a plaintiff to “show that (1) [he] is disabled 25 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, 26 or operates a place of public accommodation; and (3) the plaintiff was denied public 27 accommodations by the defendant because of [his] disability.” 28 1 Inc., 481 F.3d 724, 730 (9th Cir. 2007). Though Plaintiff moved for summary 2 judgment on a barrier theory, he inexplicably abandoned the barrier theory at trial. 3 21. Even if he had not abandoned this theory, the Court would find it 4 meritless. Based on the undisputed evidence, including Plaintiff’s trial testimony, the 5 items on the lower counter presented no barrier to service. The items located on the 6 service portion of the lower counter when Plaintiff visited were placed there 7 temporarily, would have been removed in the ordinary course of business, and readily 8 could have been removed to assist a customer. The only contrary evidence is the 9 declaration Plaintiff submitted in support of his summary judgment motion, which 10 Plaintiff later contradicted and which the Court does not find credible. 11 22. To make a policy or practice claim, Plaintiff must establish: “(1) he is 12 disabled as that term is defined by the ADA; (2) the defendant is a private entity that 13 owns, leases, or operates a place of public accommodation; (3) the defendant 14 employed a discriminatory policy or practice; and (4) the defendant discriminated 15 against the plaintiff based upon the plaintiff’s disability by (a) failing to make a 16 requested reasonable modification that was (b) necessary to accommodate the 17 plaintiff’s disability.” Fortyune, 364 F.3d at 1082. 18 23. Plaintiff is required to prove each element of his policy or practice claim 19 by a preponderance of the evidence. See Lopez v. Catalina Channel Express, Inc., 20 974 F.3d 1030, 1033 (9th Cir. 2020) (plaintiff bears the burden on an ADA claim). 21 24. Plaintiff proved the first two elements—that he is “disabled” and that 22 Defendants are private entities that own, lease, or operate a place of public 23 accommodation. But Plaintiff failed to carry his burden of proof on the final two 24 elements. 25 25. Plaintiff presented no credible evidence of a policy or practice of 26 discrimination. He claims to have had a single encounter during which an employee 27 purported to refuse him service at the lower counter. Even if that claim were truthful, 28 a single encounter does not establish a policy or practice. The Court credits the 1 testimony of Mr. Montellano and finds that a Store employee’s refusal to serve a 2 person with disabilities at the lower counter is contrary to company policy and 3 practice. Because there was no policy or practice, Plaintiff also cannot show that 4 Defendants discriminated against him by failing to reasonably modify a policy or 5 practice. See Fortyune, 364 F.3d at 1082 (stating the requirements of the fourth 6 element). 7 26. The Court further finds that Plaintiff lacks standing to seek an injunction. 8 This requires a showing of a “real and immediate threat” of recurrence of the alleged 9 injury. Fortyune, 364 F.3d at 1082 (quoting Pickern v. Holiday Quality Foods, Inc., 10 293 F.3d 1133, 1138 (9th Cir. 2002)). In view of Plaintiff’s shifting testimony about 11 his encounter and purported reluctance to return, the Court does not find it credible 12 that Plaintiff intends to return to the Store to shop (or for any non-litigious purpose) or 13 that he is deterred by his June 17, 2019 encounter. The Court therefore concludes that 14 the chance of recurrence is remote. 15 27. Plaintiff has not proven his claim under Title III of the ADA. The Court 16 finds in favor of Defendants and against Plaintiff. Defendants are to submit a form of 17 judgment in Word format to the chambers email address by no later than March 1, 18 2021. 19 20 Dated: February 24, 2021 21 ______________________________________ Stanley Blumenfeld, Jr. 22 United States District Judge 23 24 25 26 27 28