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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

PAUL L. REIN, Esq. (SBN 43053)

CELIA McGUINNESS, Esq. (SBN 159420)

LAW OFFICES OF PAUL L. REIN

200 Lakeside Drive, Suite A

Oakland, CA 94612

Telephone: 510/832-5001

Facsimile: 510/832-4787

Attorneys for Plaintiff

SEBASTIAN DeFRANCESCO

JONATHAN S. KITCHEN (SBN 80270)

ALI P. HAMIDI (SBN 191198)

COX, CASTLE & NICHOLSON LLP

555 California St., 10 Floor

th

San Francisco, CA 94104-1513

Telephone: 415/392-4200

Facsimile: 415/392-4250

Attorneys for Defendants

SRI OLD TOWN, LLC and

FEDERAL REALTY INVESTMENT TRUST

MARK F. HAZELWOOD (SBN 136521)

LAURA S. FLYNN (SBN 148511)

LOW, BALL & LYNCH

505 Montgomery St., 7 Floor

th

San Francisco, CA 94111-2584

Telephone: 415/981-6630

Facsimile: 415/982-1634

Attorneys for Defendant

TOWN OF LOS GATOS

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

SEBASTIAN DEFRANCESCO,

Plaintiff,

v. 

SRI OLD TOWN, LLC; FEDERAL

REALTY INVESTMENT TRUST;

TOWN OF LOS GATOS; and DOES

1-10, Inclusive, 

Defendants.

 /

CASE NO. C09-2123 JL

Civil Rights

JOINT CASE MANAGEMENT

CONFERENCE STATEMENT

Date: May 12, 2010

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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL -2- S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

The parties submit this joint Case Management Conference, along with a request

that the Conference be continued until after mediation under General Order 56 is

complete:

1. Jurisdiction and Service: 

The Court has jurisdiction over the federal claims pursuant for violations

of the Americans with Disabilities Act of 1990, 42 USC 12101, et seq.. to 28

U.S.C. § 1331 It has pendant jurisdiction over the state claims. 28 U.S.C. § 1367. 

All named parties have been served. There is a possibility defendants may need

to add another party, as explained in further detail below. 

2. Facts: 

a. Plaintiff’s Factual Allegations

Plaintiff Sebastian DeFrancesco is a physically disabled person, a

quadriplegic who drives a hand-controlled van. His Complaint alleges that he

drove to the Los Gatos Town Parking Lot 5 on August 28, 2008, in order to visit

Steamer's Grillhouse a restaurant, located at 50 University Avenue adjacent to the

parking lot. He alleges there were no actually accessible parking places, though

certain spaces were designated accessible. He did manage to park and using

sidewalks and walkways, proceeded downhill, despite a steep slope, and

eventually reached and patronized the restaurant. 

After eating, plaintiff left the restaurant and attempted to use the

wheelchair lift adjacent to the rear of the restaurant to ascend to the level of

Parking Lot 5, because he could not climb the 12 stairs next to the lift to reach

the parking lot directly. He entered and activated the lift and proceeded upward,

but the lift became stuck near the top level, and plaintiff found that he could not

get out of the lift. He tried three or four times to get it to work but did not

succeed, and he could not exit the lift. He was trapped in the lift for

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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL -3- S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

approximately fifteen minutes until friends found him and rescued him: His

friends had to lift plaintiff bodily out of his wheelchair, then lift the wheelchair

out of the lift, and place plaintiff back in his wheelchair. As a result of the

malfunctioning lift, plaintiff suffered physical, mental and emotional damages,

and has been deterred from returning. Plaintiff further alleges that, instead of

promptly repairing the lift defendants locked it off and/or allowed it to be locked

off to use for all disabled persons for more than eight months. 

Defendants SRI OLD TOWN, LLC; FEDERAL REALTY INVESTMENT

TRUST; and DOES 1-5 are the owners, operators, lessors, and lessees of the

businesses, properties, facilities and/or portions thereof comprising the Old Town

Center shopping center located at University Ave. and Elm St. in the Town of

Los Gatos, and of the access lift between these properties and the upper level of

Parking Lot No. 5. The TOWN OF LOS GATOS and DOES 5-10 are the

owners, operators, lessors, and lessees of the properties, facilities and/or portions

thereof comprising Parking Lot No. 5. 

b. Defendants’ Factual Issues

(1) Was Plaintiff injured as a result of the incident?

(2) What are the extent of Plaintiff's injuries?

(3) Did plaintiff receive any medical treatment? 

(4) Did Plaintiff incur any costs associated with any medical

treatment he may have received?

(5) Was Plaintiff denied equal benefits of the Defendants' services

by reason of his disability? 

(6) Did the Defendants have notice that an accommodation was

required?

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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL -4- S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

3. Legal Issues: 

a. Plaintiff’s Position:

Defendants are liable for their failure to provide accessible parking under

the Americans with Disabilities Act (ADA). Defendant City of Los Gatos is

liable under Title II for failure to provide equal access to its programs, services

and activities comprising the parking lot, path of travel, and lift at issue. 42

U.S.C. §12132. Defendants SRI Old Town and Federal Realty Investment Trust

are liable under Title III for failure to provide full and equal access to their public

accommodations. 42 U.S.C. § 12182. The private defendants are liable for any

new construction or for alterations since 1992 which triggered the obligation to

make the path of travel accessible, and regardless of any such construction or

alteration, for any alterations which have been readily achievable. Plaintiff is

informed and believed the facilities at issue here were constructed in 1999.

Removal of the architectural barriers complained of is also required under

California law. Any alterations, structural repairs or additions since July 1, 1982,

were required to comply with CCR Title 24. The City is liable for failure to meet

those standards under Government Code section 4450. The private defendants

are liable under Health & Safety Code sections 19955 et seq. Furthermore, each

violation of the ADA also constitutes a separate violation of California Civil

Code sections 54( c) and 54.1(d), independently justifying injunctive relief and

damages pursuant to California law. As to maintaining the lift in operable order,

since 1994 the California Building Code has required public accommodations to

“maintain in operable working condition those features of facilities and

equipment that are required to be accessible to and usable by persons with

disabilities.” § 1101B.3.

b. Defendants’ Legal Issues

(1) Did the Defendants violate title II of the ADA?

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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL -5- S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

(2) Is plaintiff entitled to injunctive relief? 

(3) Does Plaintiff have standing to assert his claims?

(4) Did the Defendants show deliberate indifference to Plaintiff? 

(5) Has Plaintiff produced evidence to establish a violation of Civil

Code sections 51 and 52 (Unruh Act)?

4. Motions/ADR:

This case has been assigned to the ADR Department under General Order

56. The parties have been working cooperatively and are motivated to resolve

the case at mediation. Mediation is set for May 14, 2010, two days after the Case

Management Conference in this case . The parties jointly request the Court

continue the Case Management Conference for at least two months to allow the

parties to use the mediation process to best advantage.

5. Amendment of Pleadings: 

It appears that remediating the facilities to create the most appropriate,

direct path of travel would include a sidewalk owned and controlled by another

private entity not a party to this case. Plaintiff does not have standing to sue that

entity because he did not encounter that sidewalk. Plaintiff has suggested that

defendant City of Los Gatos bring that entity into the suit.

Dated: May 5, 2009 LAW OFFICES OF PAUL L. REIN

 /s/ Celia McGuinness 

By CELIA McGUINNESS

Attorneys for Plaintiff

SEBASTIAN DEFRANCESCO

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L AW OFF IC ES OF

PAUL L. REIN

200 L AKESID E DR., SU ITE A

OAKLAND, CA 94612-3503

(510) 832-5001

JOINT CMC STATEMENT

CASE NO. C09-2123 JL -6- S:\CASES\L\LOS GATOS\PLEADINGS\Joint Case Management Conference Statement (final).wpd

Dated: May 5, 2010 COX, CASTLE & NICHOLSON LLP

JONATHAN S. KITCHEN 

ALI P. HAMIDI

 /s/ Ali Hamidi 

Attorneys for Defendants

SRI OLD TOWN, LLC and

FEDERAL REALTY INVESTMENT

TRUST

Dated: January 14, 2010 LOW, BALL & LYNCH

 /s/ Mark Hazelwood 

MARK F. HAZELWOOD

Attorneys for Defendants

TOWN OF LOS GATOS

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