Carpenter v. Leung CA2/8 ( 2014 )

Filed 11/6/14 Carpenter v. Leung CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DONNA KAY CARPENTER, as B252083
Successor in Interest,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. GC048260)
v.
ROBERT LEUNG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A.
Pluim, Judge. Affirmed.
Law Offices of Frailey & Associates and Dale C. Frailey for Defendant and
Appellant.
Center for Disability Access and Dennis Price for Plaintiff and Respondent.
******
The court entered a judgment in favor of Jon Richards Carpenter based on a
violation of the American with Disabilities Act of 1990 (ADA). (42 U.S.C. § 12101 et
seq.) Robert Leung challenges the judgment on evidentiary grounds, but fails to
demonstrate any error. We affirm.
FACTS AND PROCEDURE
On October 17, 2011, Carpenter sued Leung, alleging violations of the ADA,
Unruh Civil Rights Act, California Disabled Persons Act and stating a cause of action for
negligence. Carpenter alleged that he was quadriplegic and required use of a wheelchair
for mobility. According to the complaint, Leung owned a shopping center in Rosemead
California. Carpenter alleged that Leung failed to provide any van-accessible parking
space with an eight-foot access aisle.
In his trial brief, Carpenter argued that Leung provided three handicap parking
spaces but none was van accessible. Carpenter argued that Leung was required to
provide at least one compliant van-accessible parking spot.
At trial, Carpenter testified that he was quadriplegic and needed the assistance of a
wheelchair. He drove a minivan that was modified for wheelchair use. On July 6, 2011,
he went to a retail complex located at 8632 Valley Boulevard and tried to park his car.
There was not enough space for his ramp to deploy. The parking space did not have an
eight-foot ramp.
In his defense, Leung sought to admit a picture of the parking lot in the back of the
building. Carpenter’s attorney objected arguing that the picture had not been produced
during discovery. After Carpenter’s counsel explained the discovery violation including
the request for production and the motion to compel, the court sustained Carpenter’s
objection to the evidence. The court limited Leung to asking about the parking space in
the front of the building. The court explained that “[t]he only complaint is about the
parking space in front . . . . The plaintiff is not claiming that there was any other
violation . . . .” The court further explained that the parking spot in the front of the
building was too small and it was not a defense that defendant had a parking spot in the
back of the building. The court stated it’s not reasonable “for a handicapped person to
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park in the back of the building and some how maneuver around to the front of the
building. They [have] to have access to any of the businesses, that’s not a reasonable
accommodation.”
At the conclusion of trial, the court admitted into evidence Leung’s admission that
the subject property was not accessible. The court also admitted into evidence Leung’s
admission that there was no accessible van parking space. Leung also had admitted that
there was no accessible eight-foot access aisle on the passenger side of the vehicle.
The court entered judgment for Carpenter, calculating damages in the amount of
$4,000 and added costs and attorney fees to the judgment. This appeal followed.1
DISCUSSION
Leung argues that the court should have allowed him to admit a photograph
purportedly demonstrating that a parking spot behind the restaurant was van accessible.
He further argues that it is reasonably probable he would have obtained a more favorable
result absent the alleged error. We disagree
First, Leung cites no authority indicating that a van-accessible space located in the
rear of the building is compliant with the ADA. He therefore fails to demonstrate that the
court erred in concluding that the picture showing parking in the rear of the building was
irrelevant.
Second, independent from the deficiency in his legal argument, Leung also fails to
produce an adequate record. The picture he sought to admit is not included in our record.
Therefore, it is impossible for this court to assess his claim that the picture was material
to the lawsuit. Moreover, Leung relies on purported facts not included in the record. For
example, he states that “[t]he back parking spaces referred to by Defendant/Appellant
Robert Leung was approximately 25 feet from the space in front of the restaurant . . . .”
He fails to cite to the record for that so-called fact (as required by Cal. Rules of Court,
rule 8.204(a)(1)(C)), and no evidence in the record supports his statement. It is the
1
Carpenter is deceased. His mother Donna Kay Carpenter is his successor in
interest.
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appellant’s burden to provide an adequate record. (Ballard v. Uribe (1986) 41 Cal. 3d
564, 574.) Leung failed to do so.
Even if Leung could show the trial court should have admitted the picture of the
parking space in the rear of the building, he fails to show prejudice. “‘Article VI, section
13, of the California Constitution provides that a judgment cannot be set aside
“. . . unless, after an examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.” This fundamental restriction on the power of appellate courts is amplified by
Code of Civil Procedure section 475, which states that trial court error is reversible only
where it affects “. . . the substantial rights of the parties . . . ,” and the appellant
“sustained and suffered substantial injury, and that a different result would have been
probable if such error . . . had not occurred or existed.” Prejudice is not presumed, and
the burden is on the appealing party to demonstrate that a miscarriage of justice has
occurred.’” (Robert v. Stanford University (2014) 224 Cal. App. 4th 67, 72.) Here, there
was evidence that Leung admitted there was no van-accessible parking spot. That
admission overwhelmingly supported the judgment, and it is not reasonably probable that
considering the picture would have altered the judgment.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
FLIER, J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
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