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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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THOMAS E. FRANKOVICH (State Bar No. 074414)

AMANDA LOCKHART (State Bar No. 289900)

THOMAS E. FRANKOVICH, 

A PROFESSIONAL LAW CORPORATION

702 Mangrove Ave., #304 

Chico, CA 95926

Telephone (415) 389-8600

Email: tfrankovich@disabilitieslaw.com 

alockhart@disabilitieslaw.com

Attorney for Plaintiff

Mary Ellen Escareno, 

 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 

Mary Ellen Escareno,

Plaintiff,

v.

HILTON SONOMA WINE COUNTRY; 

PHF II SONOMA LLC, a Delaware Limited

Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited

Partnership, 

Defendants.

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CASE NO. 

Civil Rights

COMPLAINT FOR INJUNCTIVE RELIEF

AND DAMAGES:

1 CAUSE OF ACTION: For Denial of Access st

by a Public Accommodation in Violation of the

Americans with Disabilities Act of 1990 (42

U.S.C. §12101, et seq.)

2 CAUSE OF ACTION: For Denial of Full nd

and Equal Access in Violation of California

Civil Code §§54, 54.1 and 54.3

3 CAUSE OF ACTION: For Denial of rd

Accessible Sanitary Facilities in Violation of

California Health & Safety Code §19955, et seq.

4 CAUSE OF ACTION: For Denial of th

Access to Full and Equal Accommodations,

Advantages, Facilities, Privileges and/or

Services in Violation of California Civil Code

§51, et seq. (The Unruh Civil Rights Act)

DEMAND FOR JURY

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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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Plaintiff MARY ELLEN ESCARENO, complains of defendants HILTON SONOMA

WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership, and alleges as follows:

INTRODUCTION:

1. This is a civil rights action for discrimination against persons with physical

disabilities, of which class plaintiff MARY ELLEN ESCARENO and the disability community

are members, including but not limited to 4A4U, for failure to remove architectural barriers

structural in nature at defendants’ Hilton Sonoma Wine Country, a place of public

accommodation, thereby discriminatorily denying plaintiff and the class of other similarly

situated persons with physical disabilities access to, the full and equal enjoyment of, opportunity

to participate in, and benefit from, the goods, facilities, services, and accommodations thereof. 

Plaintiff seeks injunctive relief and damages pursuant to the Americans with Disabilities Act of

1990, 42 U.S.C. §12101, et seq.; California Civil Code §§51, 51.5 and 54, et seq.; and California

Health & Safety Code §19955, et seq.

2. Plaintiff brings this action acting as a “private attorney general” privatizing

enforcement of the American with Disabilities Act of 1990 (“ADA”) without the American tax

payer(s) bearing the financial tax burden for such action. 

3. Plaintiff is a person with physical disabilities who, on or about July 3, 2016 

(and deterred thereafter), was an invitee, guest, patron, customer at defendants’ Hilton Sonoma

Wine Country, in the City of Santa Rosa, California. At said time(s) and place, defendants failed

to provide proper legal access to the Inn, which is a “public accommodation” and/or a “public

facility” including, but not limited to signage, parking, accessible routes, ramps, restrooms and

guest rooms. The denial of access was in violation of both federal and California legal

requirements, and plaintiff(s) suffered violation of her civil rights to full and equal access, and

was embarrassed and humiliated. 

JURISDICTION AND VENUE:

4. Jurisdiction: This Court has jurisdiction of this action pursuant to 28 U.S.C.

§1331 for violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. 

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COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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Pursuant to pendant jurisdiction, attendant and related causes of action, arising from the same

nucleus of operative facts and arising out of the same transactions, are also brought under parallel

California law, whose goals are closely tied with the ADA, including but not limited to violations

of California Civil Code §51, et seq. and §54, et seq., California Health & Safety Code §19955 et

seq., including §19959; and California Building Code.

5. Venue: Venue is proper in this court pursuant to 28 U.S.C. §1391(b) and is

founded on the facts that the real property which is the subject of this action is located at/near

3555 Round Barn Blvd., in the City of Santa Rosa, County of Sonoma, State of California, and

that plaintiff’s causes of action arose in this county.

PARTIES:

6. Plaintiff MARY ELLEN ESCARENO is a “physically handicapped person,” a

“physically disabled person,” and a “person with physical disabilities” (hereinafter the terms

“physically disabled,” “physically handicapped” and “person with physical disabilities” are used

interchangeably, as these words have similar or identical common usage and legal meaning, but

the legislative scheme in Part 5.5 of the Health & Safety Code uses the term “physically

handicapped persons” and the Unruh Civil Rights Act, §§51, 51.5, 54 and 54.1, and other

statutory measures refer to protection of the rights of “physically disabled persons”). Plaintiff 

MARY ELLEN ESCARENO suffers from an arthritic condition which effects both knees. 

Plaintiff MARY ELLEN ESCARENO uses a walker to ambulate at home and uses a manual

wheelchair to travel about in public with the assistance of a third party “pusher”. Consequently,

plaintiff MARY ELLEN ESCARENO is a member of that portion of the public whose rights are

protected by the provisions of Health & Safety Code §19955, et seq. (entitled “Access to Public

Accommodations by Physically Handicapped Persons”) and the protections of the Unruh Civil

Rights Act, Civil Code §§51 and 51.5 the Disabled Persons Act, Civil Code §54, and the

Americans with Disabilities Act, 42 U.S.C. §12101, et seq.

7. DEFINITIONS: 

a. ADAAG - The Americans with Disabilities Act Accessibility Guidelines

of 1990; and 2010 ADA Standards

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b. 2010 ADA STANDARDS - The revised regulations for Title II and III of

the Americans with Disabilities Act of 1990 in the Federal Register as of

September 15, 2010; 

c. ARCHITECTURAL BARRIERS - Architectural barriers are physical

features that limit or prevent people with disabilities from obtaining the

goods or services that are offered. They can include but are not limited to

the following examples: parking spaces that are too narrow to

accommodate people who use wheelchairs; a step or steps at the entrance

or to part of the selling space of a store; round doorknobs or door hardware

that is difficult to grasp; aisles that are too narrow for a person using a

wheelchair; electric scooter, or a walker; a high counter or narrow

checkout aisles at a cash register, and fixed tables in eating areas that are

too low to accommodate a person using a wheelchair or that have fixed

seats that prevent a person using a wheelchair from pulling under the table.

 Excerpted from the “ADA Guide for Small Businesses” with an 

 interlineation modification. http://www.ada.gov/smbustxt.htm.

(The descriptive use of the word “barriers” as used herein is synonymous

with architectural barriers). 

d. ELEMENTS - An architectural or mechanical component of a building,

facility, space, or site (e.g., telephone, curb ramp, door, flush valve,

drinking fountain, seating, or water closet, toilet seat, dispensers) and/or

placement or lack thereof. 

e. CATEGORICAL ARCHITECTURAL BARRIERS - Are elements and

facilities which are, or can be architectural barriers standing alone or in

combination with one another where the element(s)/facility(s) is/are

noncomplying or where the combination thereof creates a category. For

example: such as a parking lot, entrance, restroom, lobby, guest room, 

dining area.

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f. PHYSICAL FEATURES - Are synonymous with “Elements.” 

g. FACILITY - All or any portion of buildings, structures, site

improvements, complexes, equipment, roads, walks, passageways, parking

lots, or other real or personal property located on a site. 

h. ENTRANCE - Any access point to a building or portion of a building or

facility used for the purpose of entering. An entrance includes the

approach walk, the vertical access leading to the entrance platform, the

entrance platform itself, vestibules if provided, the entry door(s) or

gate(s), and the hardware of the entry door(s) or gate(s). 

i. CLEAR FLOOR SPACE - The minimum unobstructed floor or ground

space required to accommodate a single, stationary wheelchair and

occupant. 

j. ACCESSIBLE ROUTE - A continuous unobstructed path connecting all

accessible elements and spaces of a building or facility. Interior accessible

routes may include corridors, floors, ramps, elevators, lifts, and clear floor

space at fixtures. Exterior accessible routes may include parking access

aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts. 

k. PATH OF TRAVEL - A continuous path connecting all elements and

spaces of a building or facility. 

l. NON COMPLYING - Not complying with ADAAG and/or the “Readily

Achievable Standard” of 28 CFR §36.304. 

PRELIMINARY FACTUAL ALLEGATIONS:

8. Plaintiff MARY ELLEN ESCARENO is a “person with physical disabilities,” as

defined by all applicable California and United States laws. Plaintiff MARY ELLEN

ESCARENO suffers from an arthritic condition which effects both knees. Plaintiff MARY

ELLEN ESCARENO uses a walker to ambulate at home and uses a manual wheelchair to travel

about in public with the assistance of a third party “pusher”. 

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9. The Hilton Sonoma Wine Country, herein after referred to as the “Hilton”, is a

hotel, located at/near 3555 Round Barn Blvd., Santa Rosa, California. The “Hilton”, its signage,

parking, accessible routes, ramps, restrooms and guest rooms, and its other facilities are each a

“place of public accommodation or facility” subject to the barrier removal requirements of the

Americans with Disabilities Act. On information and belief, each such facility has, since July 1,

1970, undergone “alterations, structural repairs and additions,” each of which has subjected the

“Hilton”and each of its facilities, its signage, parking, accessible routes, ramps, restrooms and

guest rooms to disability access requirements per the Americans with Disabilities Act

Accessibility Guidelines (ADAAG), and the California Building Code. 

10. Defendant PHF II SONOMA LLC, is the owner of the real property

 (land and building) located at or near 3555 Round Barn Blvd., Santa Rosa, California.

11. Defendants HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC, a

Delaware Limited Liability Company; ATRIUM HOSPITALITY LP, a Delaware Limited

Partnership (hereinafter alternatively collectively referred to as “defendants”) are the owners and

operators, lessors and/or lessees, or agents of the owners, lessors and/or lessees, of the public

accommodation known as HILTON SONOMA WINE COUNTRY, located at/near 3555 Round

Barn Blvd., Santa Rosa, California, or of the building and/or buildings which constitute said

public accommodation. 

12. At all times relevant to this complaint, defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership , own and operate in joint venture the

subject “Hilton” as a public accommodation. This business is open to the general public and

conducts business therein. The business is a “public accommodation” or “public facility” subject

to the requirements of California Civil Code §§51, 51.5 and 54, et seq., Health and Safety code

§19955, et seq., and the ADA, 42 U.S.C. §12101, et seq. 

13. At all times relevant to this complaint, defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership are jointly and severally responsible to

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identify and remove architectural barriers at the subject “Hilton” pursuant to Code of Federal

Regulations title 28, section 36.201(b), which states in pertinent part:

§ 36.201 General

(b) Landlord and tenant responsibilities. Both the landlord who

owns the building that houses a place of public accommodation and

the tenant who owns or operates the place of public accommodation

are public accommodations subject to the requirements of this part.

As between the parties, allocation of responsibility for complying

with the obligations of this part may be determined by lease or other

contract.

28 CFR §36.201(b)

14. At all times stated herein, defendants’ and each of them with the knowledge that

 each of them had a continuing obligation to identify and remove architectural barriers where it

was readily achievable to do so, failed to adopt a transition plan to provide better and/or

compliant access to the subject accommodation. 

15. At all times referred to herein and continuing to the present time, defendants, and

each of them, advertised, publicized and held out the HILTON SONOMA WINE COUNTRY; 

as being handicapped accessible and handicapped usable.

16. At some of the times stated herein, plaintiff MARY ELLEN ESCARENO was in

 Santa Rosa, for the purposes of: visiting with her immediate family.

17. At said times and place plaintiff MARY ELLEN ESCARENO was provided with

the use of a room in the Burgundy Cabernet Building purchased by her daughter Linda Castillo.

18. At said times and place Linda Castillo attempted to purchase a guest room

designed for and designated for the disabled. None were available when Linda Castillo secured a

room.

19. On or about July 3, 2016, plaintiff MARY ELLEN ESCARENO was an invitee

and guest at the subject Hilton, with her daughter Linda Castillo and the Castillo family, for

purposes of a family reunion.

20. On or about July 3, 2016, plaintiff MARY ELLEN ESCARENO encountered the

following architectural barriers in the parking lot of the Hilton and as a legal result had the 

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following adverse experiences: The parking stalls outside the Burgundy Cabernet Building had a

built up ramp in the access aisle and as a legal result it was difficult to ascend the ramp and the

side slopes put plaintiff MARY ELLEN ESCARENO at risk of tipping over. This was of

concern to plaintiff MARY ELLEN ESCARENO.

21. On or about July 3, 2016, plaintiff MARY ELLEN ESCARENO encountered the

 following architectural barriers on the ramps connecting the Burgundy Cabernet building with

the sidewalk adjacent to the parking lot and as a legal result had the following adverse

experiences: There were/are two ramps that meet together forming a “V”. The ramp coming

from the building entrance is constructed with wood and abuts a concrete ramp which connects to

the sidewalk. The wood ramp had an approximately one inch “lip” where the two ramps connect. 

No level landing was between the ramps. As a legal result when plaintiff MARY ELLEN

ESCARENO in her wheelchair was being pushed by her son Jose Velasco the wheels hit the lip. 

The wheelchair stopped abruptly and MARY ELLEN ESCARENO was thrown out of her

wheelchair landing and breaking her right fibula.

22. On or about and before July 3, 2016, plaintiff MARY ELLEN ESCARENO is

informed and believes that there were not the requisite number of guest rooms by classification

for the disabled. 

23. On or about July 3, 2016, plaintiff MARY ELLEN ESCARENO is informed and

believes that the men’s and women’s restrooms in serving the lobby of the Hilton were not

accessible nor were the computers in the lobby. 

24. At said time(s) and place, plaintiff MARY ELLEN ESCARENO had need to use

a restroom. It did not matter whether it was designated as a men’s or women’s restroom as long

as it was accessible. 

25. Therefore, at said time(s) and place, plaintiff MARY ELLEN ESCARENO, 

encountered the following architectural barriers as stated herein or lack thereof and/or “elements”

and “facilities” which constituted architectural barriers and/or categorical architectural barriers

and a denial of the proper and legally required access to a public accommodation to persons with

physical disabilities including, but not limited to:

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A. lack of directional signage to show accessible routes of travel, i.e.

entrances;

B. lack of the requisite type and number of disabled parking stall(s);

C. lack of disabled van accessible parking stall(s); with ramps in the access

aisles with forward slopes in excess of 8.33% and side slopes ranging from

23% to 31%;

D. lack of a handicapped-accessible women’s public restroom in the lobby;

E. lack of a handicapped-accessible men’s public restroom in the lobby;

F. lack of handicapped accessible guest room with two beds and bathroom

within;

G. lack of the requisite number of accessible guest rooms by classification;

H. lack of reduced door pressure throughout;

I. lack of curb cuts throughout the Hilton grounds;

J. lack of compliant ramps and level landing serving the Burgundy Cabernet

building;

K. lack of compliant hand railings;

L. lack of signage, policies, procedures and guidelines to ensure the person(s)

with disabilities to the maximum extent possible have an opportunity to

share in the same goods, services and opportunities as those afforded to

able-bodied persons;

M. On personal knowledge, information and belief, other public facilities and

elements too numerous to list were inaccessible to plaintiff(s) and for use

by other persons with physical disabilities similarly situated.

;

N. Plaintiff is informed and believes defendants lack a policy, practice and

procedure of having available guest rooms for persons with disabilities.

(Plaintiff seeks the implementation of a policy, practice and procedure that

handicapped accessible guest room(s) will not be sold unless specifically

requested or until all other rooms are sold to the general public to ensure

the availability of guest rooms to persons with disabilities. That the person

making a reservation for a handicap accessible guestroom be provided

with a confirmation that so states).

Therefore, as a legal result of encountering each of said elements, plaintiff experienced

one, all, or a combination of the following difficulties: stress, strain, difficulty, and discomfort to

his/her upper extremities in attempting to and/or using said elements also causing anxiety,

disappointment, and embarrassment. 

///

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26. At all time(s) as stated herein, plaintiff encountered architectural barrier(s) as 

stated herein and/or had personal knowledge of said barrier(s) and knew it would be a futile

gesture to attempt to overcome it/them because of her disability. 

27. At all times stated herein, it was “readily achievable” for defendants to remove

some and/or all of the architectural barriers complained of over a reasonable period of time from

the date that defendants initially took possession to meet the affirmative duty to identify and

remove architectural barriers where it is readily achievable to do so. In that regard, defendants

could have but did not avail themselves of the tax deduction and tax credits provided by Internal

Revenue Services (“IRS”) codes 44 and 190, which apply to the costs of barrier removal.

28. At all time(s) and place, each architectural element as stated herein that did

 not strictly comply with or substantially comply with the ADAAG minimum requirements

constituted an architectural barrier which precluded plaintiff from full and equal opportunities

afforded to non disabled persons to the goods and services of the Hilton.

29. At said time(s) and place, when plaintiff encountered the architectural barriers as 

stated herein, and/or in seeing a barrier(s) and/or attempting to overcome the barriers to gain

access experienced any one or combination of physical difficulty, discomfort, embarrassment,

stress, strain, fatigue, anger, annoyance and disappointment. This constitutes a denial of full and

equal access to the subject public accommodation and a denial of the opportunity to

independently enjoy and participate in the opportunities, goods and services offered to non

disabled persons and patrons, invitees and guests. 

30. Said architectural barrier(s) as stated herein deprived and deterred plaintiff

the same full and equal access that a non wheelchair user/non disabled person would enjoy while

engaging in the goods, service and opportunities offered at the subject Hilton.

31. At all times stated herein, the existence of architectural barriers at

 defendants’ place of public accommodation evidenced “actual notice” of defendants’ intent not

to comply with the Americans with Disabilities Act of 1990 either then, now or in the future.

///

/// 

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32. As a legal result of defendants’ and each of their failure to act as a reasonable and

prudent public accommodation in identifying, removing or creating architectural barriers, policies,

practices and procedures that denied access to plaintiff and other persons with disabilities,

plaintiff suffered the damages as alleged herein.

33. As a result of the denial of equal access to defendants’ facilities due to the acts and

omissions of defendants, and each of them, in owning, operating and maintaining these subject

public facilities, plaintiff MARY ELLEN ESCARENO suffered violations of plaintiff’s civil

rights, including, but not limited to rights under Civil Code §§51, 52, 54, 54.1, and 54.3, et seq. 

And, plaintiff MARY ELLEN ESCARENO suffered from anyone of the following conditions

and/or combination thereof: fatigue, stress, strain and pain in wheeling and attempting to and/or

transferring up, on, down, to, over, around and through architectural barriers.

34. Further, plaintiff suffered emotional distress, mental distress, mental suffering,

mental anguish, which includes, but is not limited to, shame, humiliation, embarrassment, upset,

anger, frustration, disappointment and worry, expectedly and naturally associated with a person

with physical disabilities encountering architectural barrier(s) as stated herein and being denied

access, all to his/her damages as prayed hereinafter in an amount within the jurisdiction of this

court. No claim is being made for mental and emotional distress over and above that is usually

associated with the encountering of architectural barriers and legally resulting in adverse

experiences. No expert testimony regarding this usual mental and emotional distress will be

presented at trial in support of the claim for damages.

35. Defendants’, and each of their, failure to remove the architectural barriers

complained of herein created, at the time of plaintiff’s first visit to said public accommodation,

and continues to create continuous and repeated exposure to substantially the same general

harmful conditions which caused plaintiff harm as stated herein.

36. Plaintiff MARY ELLEN ESCARENO was denied her rights to equal access to a

public facility by defendants HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC;

ATRIUM HOSPITALITY LP, because defendants HILTON SONOMA WINE COUNTRY; PHF

II SONOMA LLC; ATRIUM HOSPITALITY LP, maintained a hotel without access for persons

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with physical disabilities to its facilities, including but not limited to the signage, parking,

accessible routes, ramps, restrooms, guest rooms, and other public areas as stated herein, and

continue to the date of filing this complaint to deny equal access to plaintiff and other persons

with physical disabilities in these and other ways. 

37. Construction alterations, if any, carried out by defendants have also triggered

access requirements under both California law and the Americans with Disabilities Act of 1990.

38. Defendants may have intentionally undertaken to modify and alter existing

building(s), and may have failed to make them comply with accessibility requirements under the

requirements of ADAAG and California Building Code. 

39. Because of defendants’ violations, plaintiff and other persons with physical

disabilities are unable to use public facilities such as those owned and operated by defendants on a

“full and equal” basis unless such facility is in compliance with the provisions of the Americans

with Disabilities Act of 1990, Civil Code §51, Civil Code §54.1 and Health & Safety Code

§19955, et seq. and other accessibility law as pled herein. Plaintiff seeks an order from this court

compelling defendants to make the Hilton accessible to persons with disabilities.

40. Plaintiff, as described herein below, seeks injunctive relief to require the

 Hilton to be made accessible to meet the requirements of both California law and the Americans

with Disabilities Act of 1990, whichever is more restrictive, so long as defendants operate the

hotel as a public facility. 

41. Plaintiff believes that even with service of the summons and complaint on

 defendant(s) and each of them, that defendant(s) will not , under their “continuing obligation”

immediately undertake remedial action to identify and remove architectural barriers. 

 42. Plaintiff seeks damages for violation of her civil rights on July 3, 2016 and

deterrence occasion(s) and seeks statutory damages of not less than $4,000, pursuant to Civil

Code §52(a), for each day after his/her visit that the trier of fact (court/jury) determines was the

date that some or all remedial work should have been completed under the standard that the

landlord and tenant had an ongoing duty to identify and remove architectural barriers where it was

readily achievable to do so, which deterred plaintiff from returning to the subject public

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accommodation because of his/her knowledge and/or belief that neither some or all architectural

barriers had been removed and that said premises remains inaccessible to persons with disabilities

whether a wheelchair user or otherwise. The acts and omission of defendants, and each of them,

in failing to provide the required accessible public facilities at the time of plaintiff’s visit and

injuries, indicate actual and implied malice toward plaintiff, and despicable conduct carried out by

defendants, and each of them, with a willful and conscious disregard for the rights and safety of

plaintiff and other similarly situated persons, and justify a trebling of damages as provided by

Civil Code §§52(a) and 54.3, in order to make a more profound example of defendants, and each

of them, to other operators and landlords of other Hotels, Motels, Inns and other public facilities,

and to punish defendants and to carry out the purposes of the Civil Code §§ 51, 51.5 and 54.

43. Plaintiff is informed and believes and therefore alleges that defendants HILTON

SONOMA WINE COUNTRY; PHF II SONOMA LLC; ATRIUM HOSPITALITY LP, and each

of them, caused the subject building(s) which constitute the Hilton to be constructed, altered and

maintained in such a manner that persons with physical disabilities were denied full and equal

access to, within and throughout said building(s) of the Hilton and were denied full and equal use

of said public facilities. Furthermore, on information and belief, defendants have continued to

maintain and operate said hotel and/or its building(s) in such conditions up to the present time,

despite actual and constructive notice to such defendants that the configuration of the Hilton

and/or its building(s) is in violation of the civil rights of persons with physical disabilities, such as

plaintiff and other members of the disability community. Such construction, modification,

ownership, operation, maintenance and practices of such public facilities are in violation of Civil

Code §§51, 51.5 and 54, Health and Safety Code §19955, and the ADA, 42 U.S.C. §12101, et seq.

44. Defendants’ actual and constructive notice that the physical configuration of the

facilities including, but not limited to, architectural barriers constituting the Hilton and/or

building(s) was in violation of the civil rights of persons with physical disabilities, such as

plaintiff, includes, but is not limited to, coming into contact with public accommodations with

accessible elements and facilities since January 26, 1991, communications with invitees and

guests, plaintiff MARY ELLEN ESCARENO herself, possibly sponsors of conferences, owners

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of other restaurants, hotels, motels and businesses, notices they obtained from governmental

agencies upon modification, improvement, or substantial repair of the subject premises and other

properties owned by these defendants, newspaper articles and trade publications regarding the

Americans with Disabilities Act of 1990 and other access laws, public service announcements by

former U.S. Attorney General Janet Reno between 1993 and 2000, and other similar information. 

Defendants’ failure, under state and federal law, to make the Hilton accessible is further evidence

of defendants’ conscious disregard for the rights of plaintiff and other similarly situated persons

with disabilities. Despite being informed of such effect on plaintiff and other persons with

physical disabilities due to the lack of accessible facilities, defendants, and each of them,

knowingly and willfully refused to take any steps to rectify the situation and to provide full and

equal access for plaintiff and other persons with physical disabilities to the Hilton. Said

defendants, and each of them, have continued such practices, in conscious disregard for the rights

of plaintiff and other persons with physical disabilities, up to the date of filing of this complaint,

and continuing thereon. Defendants had further actual knowledge of the architectural barriers

referred to herein by virtue of the demand letter addressed to the defendants and served

concurrently with the summons and complaint. Said conduct, with knowledge of the effect it was

and is having on plaintiff and other persons with physical disabilities, constitutes despicable

conduct in conscious disregard of the rights and safety of plaintiff and of other similarly situated

persons, justifying the imposition of treble damages per Civil Code §§52 and 54.3. 

45. Plaintiff MARY ELLEN ESCARENO and the disability community, including

4A4U, consisting of persons with disabilities, would, could and will return to the subject public

accommodation when it is made accessible to persons with disabilities. 

I. FIRST CAUSE OF ACTION FOR DENIAL OF ACCESS BY A PUBLIC

ACCOMMODATION IN VIOLATION OF THE AMERICANS WITH

DISABILITIES ACT OF 1990 (42 U.S.C. §12101, et seq.)

(On behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants HILTON

SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability

Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership, inclusive)

(42 U.S.C. §12101, et seq.)

46. Plaintiff repleads and incorporates by reference, as if fully set forth again herein,

the allegations contained in paragraphs 1 through 45 of this complaint. 

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47. Pursuant to law, in 1990, the United States Congress made findings per 42 U.S.C.

§12101 regarding persons with physical disabilities, finding that laws were needed to more fully

protect:

some 43 million Americans with one or more physical or mental

disabilities; [that] historically society has tended to isolate and

segregate individuals with disabilities; [that] such forms of

discrimination against individuals with disabilities continue to be a

serious and pervasive social problem; [that] the nation’s proper

goals regarding individuals with disabilities are to assure equality of

opportunity, full participation, independent living and economic

self-sufficiency for such individuals; [and that] the continuing

existence of unfair and unnecessary discrimination and prejudice

denies people with disabilities the opportunity to compete on an

equal basis and to pursue those opportunities for which our free

society is justifiably famous.

48. Congress stated as its purpose in passing the Americans with Disabilities Act of

1990 (42 U.S.C. §12102):

It is the purpose of this act (1) to provide a clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities; (2) to provide clear, strong, consistent,

enforceable standards addressing discrimination against individuals

with disabilities; (3) to ensure that the Federal government plays a

central role in enforcing the standards established in this act on

behalf of individuals with disabilities; and (4) to invoke the sweep

of Congressional authority, including the power to enforce the 14th

Amendment and to regulate commerce, in order to address the

major areas of discrimination faced day to day by people with

disabilities. 

49. As part of the Americans with Disabilities Act of 1990, Public Law 101-336

(hereinafter the “ADA”), Congress passed “Title III - Public Accommodations and Services

Operated by Private Entities” (Section 301 42 U.S.C. §12181, et seq.). Among the public

accommodations identified for purposes of this title was:

(7) PUBLIC ACCOMMODATION - The following private

entities are considered public accommodations for purposes of this

title, if the operations of such entities affect commerce - 

Check appropriate description:

(A) an inn, hotel, motel, or other place of lodging, except for

an establishment located within a building that contains not more

than five rooms for rent or hire and that is actually occupied by the

proprietor of such establishment as the residence of such proprietor;

42 U.S.C. §12181(7)(A)

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50. Pursuant to §302, 42 U.S.C. §12182, “No individual shall be discriminated against

on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation by any person

who owns, leases, or leases to, or operates a place of public accommodation.”

51. The specific prohibitions against discrimination set forth in §302(b)(2)(a),

42 U.S.C. §12182(b)(2)(a) are:

(I) the imposition or application of eligibility criteria

that screen out or tend to screen out an individual with a disability

or any class of individuals with disabilities from fully and equally

enjoying any goods, services, facilities, privileges, advantages, or

accommodations, unless such criteria can be shown to be necessary

for the provision of the goods, services, facilities, privileges,

advantages, or accommodations being offered;

(ii) a failure to make reasonable modifications in

policies, practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities, privileges,

advantages or accommodations to individuals with disabilities,

unless the entity can demonstrate that making such modifications

would fundamentally alter the nature of such goods, services,

facilities, privileges, advantages, or accommodations;

(iii) a failure to take such steps as may be necessary to

ensure that no individual with a disability is excluded, denied

services, segregated or otherwise treated differently than other

individuals because of the absence of auxiliary aids and services,

unless the entity can demonstrate that taking such steps would

fundamentally alter the nature of the good, service, facility,

privilege, advantage, or accommodation being offered or would

result in an undue burden;

(iv) a failure to remove architectural barriers, and

communication barriers that are structural in nature, in existing

facilities . . . where such removal is readily achievable; and 

(v) where an entity can demonstrate that the removal of

a barrier under clause (iv) is not readily achievable, a failure to

make such goods, services, facilities, privileges, advantages or

accommodations available through alternative methods if such

methods are readily achievable. 

The acts of defendants set forth herein were a violation of plaintiff’s rights under the ADA, Public

Law 101-336, and the regulations promulgated thereunder, 28 CFR Part 36, et seq. - Effective

January 31, 1993, the standards of the ADA were also incorporated into California Civil Code

§51, making available the damage remedies incorporated into Civil Code §51 and 52(a) and 54.3.

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52. The removal of the barriers complained of by plaintiff as hereinabove alleged were

at all times after January 26, 1992 “readily achievable” as to the subject building(s) of the Hilton

pursuant to 42 U.S.C. §12182 (b)(2)(A)(i)-(iv). On information and belief, if the removal of all

the barriers complained of herein together was not “readily achievable,” the removal of each

individual barrier complained of herein was “readily achievable.” On information and belief,

defendants’ failure to remove said barriers was likewise due to discriminatory practices,

procedures and eligibility criteria, as defined by 42 U.S.C. §12182 (b)(2)(A)(i)and (ii).

53. Per 42 U.S.C. §12181 (9), the term “readily achievable” means “easily

accomplishable and able to be carried out without much difficulty or expense.” The statute

defines relative “expense” in part in relation to the total financial resources of the entities

involved. Plaintiff alleges that properly repairing, modifying, or altering each of the items that

plaintiff complains of herein were and are “readily achievable” by the defendants under the

standards set forth under §301(9) of the Americans with Disabilities Act. Furthermore, if it was

not “readily achievable” for defendants to remove each of such barriers, defendants have failed to

make the required services available through alternative methods which were readily achievable.

54. On information and belief, construction work on, and modifications of, the subject

building(s) of the Hilton occurred after the compliance date for the Americans with Disabilities

Act, January 26, 1992, independently triggering access requirements under Title III of the ADA. 

55. Pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §12188, et

seq., plaintiff is entitled to the remedies and procedures set forth in §204(a) of the Civil Rights

Act of 1964, 42 U.S.C. 2000(a)-3(a), as plaintiff is being subjected to discrimination on the basis

of disability in violation of this title or have reasonable grounds for believing that plaintiff is about

to be subjected to discrimination in violation of §302. Plaintiff is deterred from returning to or

making use of the public facilities complained of herein so long as the premises and defendants’

policies bar full and equal use by persons with physical disabilities. 

 56. 42 U.S.C. 12188 (a)(1) states: “Nothing in this section shall require a person with a

disability to engage in a futile gesture if such person has actual notice that a person or

organization covered by this title does not intend to comply with its provisions.” Pursuant to this

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section, plaintiff MARY ELLEN ESCARENO has not returned to defendants’ premises since on

or about July 3, 2016, but on information and belief, alleges that defendants have continued to

violate the law and deny the rights of plaintiff and of other persons with physical disabilities to

access this public accommodation. Pursuant to 42 USC §12188(a)(2), “In cases of violations of

§302(b)(2)(A)(iv) . . . injunctive relief shall include an order to alter facilities to make such

facilities readily accessible to and usable by individuals with disabilities to the extent required by

this title.”

57. Plaintiff seeks relief pursuant to remedies set forth in §204(a) of the Civil Rights

Act of 1964 (42 U.S.C. 2000(a)-3(a)), and pursuant to federal regulations adopted to implement

the Americans with Disabilities Act of 1990, including but not limited to an order granting

injunctive relief and attorneys’ fees. Plaintiff will seek attorneys’ fees conditioned upon being

deemed to be the prevailing party.

II. SECOND CAUSE OF ACTION FOR DENIAL OF FULL AND EQUAL ACCESS

IN VIOLATION OF CALIFORNIA CIVIL CODE §§54, 54.1 AND 54.3, ET SEQ.

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants HILTON

SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability

Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership, inclusive) 

(California Civil Code §§54, 54.1, 54.3, et seq.)

58. Plaintiff repleads and incorporates by reference as if fully set forth again herein, the

allegations contained in paragraphs 1 through 57 of this complaint. 

59. At all times relevant to this action, California Civil Code §54 has provided that

persons with physical disabilities are not to be discriminated against because of physical handicap

or disability. This section provides that:

(a) Individuals with disabilities . . . have the same rights as

the general public to full and free use of the streets, highways,

sidewalks, walkways, public buildings, medical facilities, including

hospitals, clinics, and physicians’ offices, and other public places. 

60. California Civil Code §54.1 provides that persons with disabilities shall not be

denied full and equal access to places of public accommodation or facilities:

(a)(1) Individuals with disabilities shall be entitled to full

and equal access, as other members of the general public, to

accommodations, advantages, facilities, medical facilities, including

hospitals, clinics, and physicians’ offices, and privileges of all

common carriers, airplanes, motor vehicles, railroad trains,

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motorbuses, streetcars, boats, or any other public conveyances or

modes of transportation (whether private, public, franchised,

licensed, contracted, or otherwise provided), telephone facilities,

adoption agencies, private schools, hotels, lodging places, places of

public accommodation, amusement or resort, and other places to

which the general public is invited, subject only to the conditions

and limitations established by law, or state or federal regulation, and

applicable alike to all persons.

Civil Code §54.1(a)(1)

61. California Civil Code §54.1 further provides that a violation of the Americans with

Disabilities Act of 1990 constitutes a violation of section 54.1:

(d) A violation of the right of an individual under the

Americans with Disabilities Act of 1990 (Public Law 101-336) also

constitutes a violation of this section, and nothing in this section

shall be construed to limit the access of any person in violation of

that act.

Civil Code §54.1(d)

62. Plaintiff MARY ELLEN ESCARENO is a person within the meaning of Civil

Code §54.1 whose rights have been infringed upon and violated by the defendants, and each of

them, as prescribed by Civil Code §§54 and 54.1. Each specific architectural barrier which

defendants knowingly and willfully fail and refuse to remove constitutes a separate act in violation

of Civil Code §§54 and 54.1. Plaintiff has been and continues to be denied full and equal access

to defendants’ Hilton. As a legal result, plaintiff is entitled to seek damages pursuant to a court or

jury determination, in accordance with California Civil Code §54.3(a) for each day on which she

visited or have been deterred from visiting the Hilton because of her knowledge and belief that the 

Hilton is inaccessible to persons with disabilities. 

California Civil Code §54.3(a) provides:

Any person or persons, firm or corporation, who denies or interferes

with admittance to or enjoyment of the public facilities as specified

in Sections 54 and 54.1 or otherwise interferes with the rights of an

individual with a disability under Sections 54, 54.1 and 54.2 is

liable for each offense for the actual damages and any amount as

may be determined by a jury, or the court sitting without a jury, up

to a maximum of three times the amount of actual damages but in

no case less than . . .one thousand dollars ($1,000) and . . .

attorney’s fees as may be determined by the court in addition

thereto, suffered by any person denied any of the rights provided in

Sections 54, 54.1 and 54.2.

Civil Code §54.3(a) 

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63. On or about July 3, 2016 , and deterrence occasion(s) plaintiff MARY ELLEN

ESCARENO suffered violations of Civil Code §§54 and 54.1 in that plaintiff was denied access

to signage, parking, accessible routes, ramps, restrooms, guest rooms and other public facilities as

stated herein at the HILTON and on the basis that plaintiff MARY ELLEN ESCARENO was a

person with physical disabilities. 

64. As a result of the denial of equal access to defendants’ facilities due to the acts

 and omissions of defendants, and each of them, in owning, operating and maintaining these

subject public facilities, plaintiff MARY ELLEN ESCARENO suffered violations of plaintiff’s

civil rights, including, but not limited to rights under Civil Code §§51, 52, 54, 54.1, and 54.3, et

seq. And, plaintiff MARY ELLEN ESCARENO suffered from anyone of the following

conditions and/or combination thereof: fatigue, stress, strain and pain in wheeling and attempting

to and/or transferring up, on, down, to, over, around and through architectural barriers.

65. Further, plaintiff suffered emotional distress, mental distress, mental suffering,

mental anguish, which includes, but is not limited to, shame, humiliation, embarrassment, upset,

anger, frustration, disappointment and worry, expected and naturally associated with a person with

physical disabilities encountering architectural barrier(s) as stated herein and being denied access,

all to his/her damages as prayed hereinafter in an amount within the jurisdiction of this court. No

claim is being made for mental and emotional distress over and above that is usually associated

with the encountering of architectural barriers and legally resulting in adverse experiences. No

expert testimony regarding this usual mental and emotional distress will be presented at trial in

support of the claim for damages.

66. Plaintiff has been damaged by defendants’, and each of their, wrongful conduct and

seeks the relief that is afforded by Civil Code §§54 and 54.1, 54.3 for violation of plaintiff’s rights

as a person or an entity that represents persons with physical disabilities on or about July 3, 2016 

and deterrence occasion(s), and on a continuing basis since then, including statutory damages, a

trebling of all of actual damages, general and special damages available pursuant to §54.3 of the

Civil Code according to proof.

///

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67. As a result of defendants’, and each of their, acts and omissions in this regard, 

plaintiff has been required to incur legal expenses and hire attorneys in order to enforce 

plaintiff’s rights and enforce the provisions of the law protecting access for persons with physical

disabilities and prohibiting discrimination against persons with physical disabilities. Pursuant to

the provisions of Civil Code §54.3, plaintiff therefore will seek recovery in this lawsuit for all

reasonable attorneys’ fees and costs incurred if deemed the prevailing party. Additionally,

plaintiff’s lawsuit is intended not only to obtain compensation for damages to plaintiff, but also to

compel the defendants to make their facilities accessible to all members of the public with

disabilities, justifying public interest attorneys’ fees, if deemed the prevailing party, pursuant to

the provisions of §1021.5 of the Code of Civil Procedure. 

III. THIRD CAUSE OF ACTION FOR DENIAL OF ACCESSIBLE SANITARY

FACILITIES IN VIOLATION OF HEALTH & SAFETY CODE §19955, ET. SEQ.

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants HILTON

SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability

Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership, inclusive)

(Health & Safety Code §19955, et seq.)

68. Plaintiff repleads and incorporates by reference, as if fully set forth again herein,

the allegations contained in paragraphs 1 through 67 of this complaint. 

69. Health & Safety Code §19955 provides in pertinent part:

The purpose of this part is to insure that public accommodations or

facilities constructed in this state with private funds adhere to the

provisions of Chapter 7 (commencing with Sec. 4450) of Division 5

of Title 1 of the Government Code. For the purposes of this part

“public accommodation or facilities” means a building, structure,

facility, complex, or improved area which is used by the general

public and shall include auditoriums, hospitals, theaters, restaurants,

hotels, motels, stadiums, and convention centers. When sanitary

facilities are made available for the public, clients or employees in

such accommodations or facilities, they shall be made available for

the handicapped. 

70. Health & Safety Code §19956, which appears in the same chapter as §19955,

provides in pertinent part, “accommodations constructed in this state shall conform to the

provisions of Chapter 7 (commencing with Sec. 4450) of Division 5 of Title 1 of the Government

Code . . . .” Health & Safety Code §19956 was operative July 1, 1970, and is applicable to all

public accommodations constructed or altered after that date. On information and belief, portions

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of the HILTON and/or of the building(s) were constructed and/or altered after July 1, 1970, and

substantial portions of the HILTON and/or the building(s) had alterations, structural repairs,

and/or additions made to such public accommodations after July 1, 1970, thereby requiring said

public accommodation and/or building to be subject to the requirements of Part 5.5, §19955, et

seq., of the Health & Safety Code upon such alteration, structural repairs or additions per Health

& Safety Code §19959. 

 71. Pursuant to the authority delegated by Government Code §4450, et seq, the State

Architect promulgated regulations for the enforcement of these provisions. Effective July 1,

1982, Title 24 of the California Building Standards Code adopted the California State Architect’s

Regulations and these regulations must be complied with as to any alterations and/or

modifications of the Hilton and/or the building(s) occurring after that date. Construction changes

occurring prior to this date but after July 1, 1970 triggered access requirements pursuant to the

“ASA” requirements, the American Standards Association Specifications, A117.1-1961. On

information and belief, at the time of the construction and modification of said building, all

buildings and facilities covered were required to conform to each of the standards and

specifications described in the American Standards Association Specifications and/or those

contained in the California Building Code. 

72. Hotels such as the Hilton are “public accommodations or facilities” within the

meaning of Health & Safety Code §19955, et seq. 

73. As a result of the actions and failure to act of defendants, and as a result of the

failure to provide proper and legally handicapped-accessible public facilities, plaintiff was denied

plaintiff’s rights to full and equal access to public facilities and suffered a loss of plaintiff’s civil

rights and plaintiff’s rights as a person with physical disabilities to full and equal access to public

facilities.

74. Attorneys’ Fees - As a result of defendants’ acts and omissions in this regard,

plaintiff has been required to incur legal expenses and hire attorneys in order to enforce plaintiff’s

civil rights and enforce provisions of the law protecting access for the persons with physical

disabilities and prohibiting discrimination against the persons with physical disabilities, and to

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take such action both in plaintiff’s own interests and in order to enforce an important right

affecting the public interest. Plaintiff, therefore, seeks in this lawsuit the recovery of all

reasonable attorneys’ fees incurred, pursuant to the provisions of the Code of Civil Procedure

§1021.5. Plaintiff additionally seeks attorneys’ fees pursuant to Health & Safety Code §19953

and Civil Code §§54.3 and/or in the alternative, plaintiff will seek attorneys’ fees, costs and

litigation expenses pursuant to §204(a) of the Civil Rights Act of 1964 (42 U.S.C. 200(a)-3(a)). 

Plaintiff will seek attorneys’ fees conditioned upon being deemed to be the prevailing party. 

 75. Plaintiff seeks injunctive relief for an order compelling defendants, and each of

them, to make the subject place of public accommodation readily accessible to and usable by

persons with disabilities. 

IV. FOURTH CAUSE OF ACTION FOR DENIAL OF ACCESS TO FULL AND

EQUAL ACCOMMODATIONS, ADVANTAGES, FACILITIES, PRIVILEGES

AND/OR SERVICES IN VIOLATION OF CALIFORNIA CIVIL CODE §51, ET

SEQ. (THE UNRUH CIVIL RIGHTS ACT)

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants HILTON

SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability

Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership, inclusive)

(Civil Code §51, 51.5)

76. Plaintiff repleads and incorporates by reference, as if fully set forth again herein,

the allegations contained in paragraphs 1 through 75 of this complaint. 

77. Defendants’ actions and omissions and failure to act as a reasonable and prudent

public accommodation in identifying, removing and/or creating architectural barriers, policies,

practices and/or procedures violates §51 of the Civil Code, the Unruh Civil Rights Act. The

Unruh Act provides:

This section shall be known, and may be cited, as the Unruh

Civil Rights Act.

All persons within the jurisdiction of this state are free and

equal, and no matter what their sex, race, color, religion, ancestry,

national origin, or disability are entitled to the full and equal

accommodations, advantages, facilities, privileges, or services in all

business establishments of every kind whatsoever.

This section shall not be construed to confer any right or

privilege on a person that is conditioned or limited by law or that is

applicable alike to persons of every sex, color, race, religion,

ancestry, national origin, or disability.

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Nothing in this section shall be construed to require any

construction, alteration, repair, structural or otherwise, or

modification of any sort whatsoever, beyond that construction,

alteration, repair, or modification that is otherwise required by other

provisions of law, to any new or existing establishment, facility,

building, improvement, or any other structure . . . nor shall anything

in this section be construed to augment, restrict, or alter in any way

the authority of the State Architect to require construction,

alteration, repair, or modifications that the State Architect otherwise

possesses pursuant to other . . . laws.

A violation of the right of any individual under the

Americans with Disabilities Act of 1990 (Public Law 101-336) shall

also constitute a violation of this section.

As the Unruh Act incorporates violations of the Americans with Disabilities Act of 1990, the

“intent” of the defendants in not complying with barrier removal is not an issue. Hence, the 

failure on the parts of defendants, as reasonable and prudent public accommodations, in acting or

failing to act to identify and remove barriers can be construed as a “negligent per se” act of

defendants, and each of them.

78. The acts and omissions of defendants stated herein are discriminatory in nature and

in violation of Civil Code §51.5:

No business establishment of any kind whatsoever shall

discriminate against, boycott or blacklist, refuse to buy from, sell to,

or trade with any person in this state because of the race, creed,

religion, color, national origin, sex, or disability of the person or of

the person’s partners, members, stockholders, directors, officers,

managers, superintendents, agents, employees, business associates,

suppliers, or customers.

As used in this section, “person” includes any person, firm

association, organization, partnership, business trust, corporation,

limited liability company, or company.

Nothing in this section shall be construed to require any

construction, alteration, repair, structural or otherwise, or

modification of any sort whatsoever, beyond that construction,

alteration, repair or modification that is otherwise required by other

provisions of law, to any new or existing establishment, facility,

building, improvement, or any other structure . . . nor shall anything

in this section be construed to augment, restrict or alter in any way

the authority of the State Architect to require construction,

alteration, repair, or modifications that the State Architect otherwise

possesses pursuant to other laws.

///

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79. Defendants’ acts and omissions as specified have denied to the plaintiff full and

equal accommodations, advantages, facilities, privileges and services in a business establishment,

on the basis of physical disability, in violation of Civil Code §§51 and 51.5, the Unruh Civil

Rights Act. Furthermore, pursuant to the 1992 amendment to California Civil Code §51, “A

violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public

Law 101-336) shall also constitute a violation of this section.” Plaintiff accordingly incorporates

the entirety of her above cause of action for violation of the Americans with Disabilities Act at

¶46, et seq., as if repled herein.

80. As a result of the denial of equal access to defendants’ facilities due to the acts and

omissions of defendants, and each of them, in owning, operating and maintaining these subject

public facilities, plaintiff MARY ELLEN ESCARENO suffered violations of plaintiff’s civil

rights, including, but not limited to rights under Civil Code §§51, 52, 54, 54.1, and 54.3, et seq. 

And, plaintiff MARY ELLEN ESCARENO suffered bodily injury at time(s) stated herein,

including, but not limited to anyone of the following conditions and/or combination thereof:

fatigue, stress, strain and pain in wheeling and attempting to and/or transferring up, on, down, to,

over, around and through architectural barriers. Specifically, as a legal result of defendants

negligence in the design, construction and maintenance of the existing Hilton. And, plaintiff 

MARY ELLEN ESCARENO suffered from anyone of the following conditions and/or

combination thereof: fatigue, stress, strain and pain in wheeling and attempting to and/or

transferring up, on, down, to, over, around and through architectural barriers.

81. Further, plaintiff suffered emotional distress, mental distress, mental suffering, 

mental anguish, which includes, but is not limited to, shame, humiliation, embarrassment, upset,

anger, frustration, disappointment and worry, expectedly and naturally associated with a person

with physical disabilities encountering architectural barrier(s) as stated herein and being denied

access, all to her damages as prayed hereinafter in an amount within the jurisdiction of this court.

No claim is being made for mental and emotional distress over and above that is usually

associated with the encountering of architectural barriers and legally resulting in adverse

experiences. No expert testimony regarding this usual mental and emotional distress will be 

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presented at trial in support of the claim for damages.

82. Plaintiff is entitled to the rights and remedies of §52(a) of the Civil Code, 

including trebling of actual damages (defined by §52(h) of the Civil Code to mean “special

and general damages”), as well as to reasonable attorneys’ fees and costs, as is allowed by

statute, according to proof if deemed to be the prevailing party.

PRAYER:

Plaintiff prays that this court award damages and provide relief as follows:

I. PRAYER FOR FIRST CAUSE OF ACTION FOR DENIAL OF ACCESS BY A 

PUBLIC ACCOMMODATION IN VIOLATION OF THE AMERICANS WITH

DISABILITIES ACT OF 1990 (42 U.S.C. §1 2101, et seq.)

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants

HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited

Liability Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership,

inclusive)

(42 U.S.C. §12101, et seq.)

1. For injunctive relief, compelling defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership, inclusive, to make the Hilton Sonoma

Wine Country, located at 3555 Round Barn Blvd., Santa Rosa, California, readily accessible

to and usable by individuals with disabilities, per 42 U.S.C §12181, et seq., and to make

reasonable modifications in policies, practice, eligibility criteria and procedures so as to afford

full access to the goods, services, facilities, privileges, advantages and accommodations being

offered; 

2. For attorneys’ fees, litigation expenses and costs of suit, if plaintiff is deemed

the prevailing party; and

3. For such other and further relief as the court may deem proper.

II. PRAYER FOR SECOND CAUSE OF ACTION FOR DENIAL OF FULL AND

EQUAL ACCESS IN VIOLATION OF CALIFORNIA CIVIL CODE §§54, 54.1

AND 54.3, ET SEQ.

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants

HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited

Liability Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership,

inclusive)

(California Civil Code §§54, 54.1, 54.3, et seq.)

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1. For injunctive relief, compelling defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership, inclusive, to make the Hilton Sonoma

Wine Country, located at 3555 Round Barn Blvd., Santa Rosa, California, readily accessible

to and usable by individuals with disabilities, per state law.

2. Statutory damages as afforded by Civil Code §54.3 for the date of incident and

for each occasion on which plaintiff was deterred from returning to the subject public

accommodation; 

3. Attorneys’ fees pursuant to Civil Code §54.3 and Code of Civil Procedure

§1021.5, if plaintiffs are deemed the prevailing party;

4. Treble damages pursuant to Civil Code §54.3;

5. General damages according to proof;

6. For all costs of suit;

7. Prejudgment interest pursuant to Civil Code §3291; and 

8. Such other and further relief as the court may deem just and proper.

III. PRAYER FOR THIRD CAUSE OF ACTION FOR DENIAL OF ACCESSIBLE

SANITARY FACILITIES IN VIOLATION OF HEALTH & SAFETY CODE

§19955, ET. SEQ.

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants

HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited

Liability Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership,

inclusive)

(Health & Safety code §19955, et seq.)

1. For injunctive relief, compelling defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership, inclusive, to make the Hilton Sonoma

Wine Country, located at 3555 Round Barn Blvd., Santa Rosa, California, readily accessible

to and usable by individuals with disabilities, per state law;

2. For attorneys’ fees pursuant to Code of Civil Procedure §1021.5, and/or,

alternatively, Health & Safety Code §19953, if plaintiff is deemed the prevailing party;

3. For all costs of suit;

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4. For prejudgment interest pursuant to Civil Code §3291;

5. Such other and further relief as the court may deem just and proper. 

IV. PRAYER FOR FOURTH CAUSE OF ACTION FOR DENIAL OF ACCESS TO

FULL AND EQUAL ACCOMMODATIONS, ADVANTAGES, FACILITIES,

PRIVILEGES AND/OR SERVICES IN VIOLATION OF CALIFORNIA CIVIL

CODE §51, ET SEQ. (THE UNRUH CIVIL RIGHTS ACT)

(On Behalf of Plaintiff MARY ELLEN ESCARENO, and Against Defendants

HILTON SONOMA WINE COUNTRY; PHF II SONOMA LLC, a Delaware Limited

Liability Company; ATRIUM HOSPITALITY LP, a Delaware Limited Partnership,

inclusive)

(California Civil Code §§51, 51.5, et seq.)

1. For injunctive relief, compelling defendants HILTON SONOMA WINE

COUNTRY; PHF II SONOMA LLC, a Delaware Limited Liability Company; ATRIUM

HOSPITALITY LP, a Delaware Limited Partnership, inclusive, to make the Hilton Sonoma

Wine Country, located at 3555 Round Barn Blvd., Santa Rosa, California, readily accessible

to and usable by individuals with disabilities, per state law;

2. All statutory damages as afforded by Civil Code §52(a) for the date of incident

and for each occasion on which plaintiff was deterred from returning to the subject public

accommodation;

3. Attorneys’ fees pursuant to Civil Code §52(a), if plaintiff is deemed the

prevailing party;

4. General damages according to proof; 

5. Treble damages pursuant to Civil Code §52(a);

6. For all costs of suit;

7. Prejudgment interest pursuant to Civil Code §3291; and

8. Such other and further relief as the court may deem just and proper.

Dated: January 16, 2017 THOMAS E. FRANKOVICH, 

A PROFESSIONAL LAW CORPORATION

By: /s/ Thomas E. Frankovich

 Thomas E. Frankovich

Attorney for Plaintiff Mary Ellen Escareno

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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury for all claims for which a jury is permitted.

Dated: January 16, 2017 THOMAS E. FRANKOVICH, 

A PROFESSIONAL LAW CORPORATION

 

By: /s/ Thomas E. Frankovich

 Thomas E. Frankovich

Attorney for Plaintiff MARY ELLEN ESCARENO

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