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Peter Strojnik, State Bar No. 6464

STROJNIK P.C.

2375 East Camelback Road Suite 600

Phoenix, Arizona 85016

Telephone: (602) 524-6602

ADA@strojnik.com 

Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

FERNANDO GASTELUM,

Plaintiff, 

vs.

AG-POP CS 3838 OWNER, L.L.C.,

Defendant.

Case No: 

VERIFIED COMPLAINT

1. Americans with Disabilities 

Act

2. Negligence

3. Negligent 

Misrepresentation

4. Failure to Disclose

5. Fraud / Consumer Fraud

JURY TRIAL REQUESTED

INTRODUCTION

1. Plaintiff brings this action pursuant to the Americans with Disabilities Act, 42 

U.S.C. §12101 et seq. and corresponding regulations, 28 CFR Part 36 and 

Department of Justice Standards for Accessible Design (“ADA”). 

2. Plaintiff’s left leg is amputated below the knee. Plaintiff moves with the aid of 

a wheelchair or a prosthetic leg. Plaintiff suffers from a disability as this term 

is defined in 42 U.S.C. 12102 and 28 CFR §36.105 (c)(1)(i) which includes, 

inter alia, “walking, standing, sitting, reaching, lifting [and] bending” and other 

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activities. A partial missing limb “substantially limit[s] musculoskeletal 

function” as a matter of law. 28 CFR § 36.105 (d)(2)(iii)(D).

3. Plaintiff is constantly and relentlessly segregated and discriminated against, 

excluded, denied equal services, or otherwise treated differently than other 

individuals because of his disability, and has been denied the opportunity to 

participate in or benefit from services, facilities and opportunities available 

people without disabilities. 

4. Plaintiff incorporates herein Congressional Findings and Purpose set forth in 42 

U.S.C. §12-101 and 28 CFR §36.101.

5. Plaintiff is being subjected to discrimination on the basis of disability in 

violation of Subchapter III of the Americans with Disabilities Act or has 

reasonable ground to believe that that he is about to be subjected to 

discrimination in violation of 42 U.S.C. §12183. 

6. Plaintiff alleges that he has actual notice that Defendant has failed to comply 

with Subchapter III of the ADA, 28 CFR 36 and the 2010 Standards of 

Accessibility Design (“2010 Standards”) as more fully alleged below. 

7. Plaintiff alleges that he has no obligation to engage in futile gestures as 

referenced in 42 U.S.C. §12188(A)(1) and 28 C.F.R. Subpart E

8. Defendant has discriminated against Plaintiff by the following actions and 

failures to act –

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a. Failing to make reasonable modifications in policies, practices, or 

procedures which are necessary to afford Plaintiff and others similarly 

situated accessibility to Defendant’s place of public accommodation, thus 

violating 42 U.S.C. §12182(b)(2)(A)(ii) and 28 C.F.R. §36.302(a); and

b. Failing 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, thus violating 42 U.S.C. §12182(b)(2)(A)(iii); and

c. Failing to remove architectural barriers where such removal is readily 

achievable, thus violating 42 U.S.C. §12182(b)(2)(A)(iii), 28 CFR 36 and 

the 2010 Standards..

PARTIES

9. Plaintiff is a disabled person and a committed individual to advance the time 

when places of public accommodations will be compliant with the ADA.

Plaintiff resides in Casa Grande, Arizona.

10.Plaintiff’s disability includes the amputation of the left leg below the knee. 

Plaintiff moves with the use of a wheelchair, walker and/or a prostethis. 

11.Defendant, AG-POP CS 3838 OWNER, L.L.C., D/B/A Hilton Garden Inn 

Phoenix Midtown owns and/or operates hotel at 4000 N. Central Avenue, 

Phoenix, AZ 85012 which is a public accommodation pursuant to 42 U.S.C. § 

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12181(7)(A) which offers public lodging services See 28 CFR §36.104 and a 

listing of public accommodations in 42 U.S.C. §12181(7).

JURISDICTION

12.District Court has jurisdiction over this case or controversy by virtue of 28 

U.S.C. §§ 28-1331 and 42 U.S.C. § 12188 and 28 U.S.C. § 1367.

13.Plaintiff brings this action as a private attorney general who has been personally 

subjected to discrimination on the basis of his disability, see 42 U.S.C.12188 

and 28 CFR §36.501.

14.Venue is proper pursuant to 28 U.S.C. § 1391.

STANDING TO SUE JURISDICTION

15. Plaintiff reviewed 3rd party and 1st party lodging websites to book an 

ambulatory and wheelchair accessible room. Plaintiff was denied equal 

opportunity to use and enjoyment of a critical public accommodation through 

Defendant’s acts of discrimination and segregation alleged below.

16.Plaintiff intends to book a room at the Defendant’s hotel once Defendant has 

removed all accessibility barriers, including the ones not specifically referenced 

herein, and has fully complied with the ADA.

17. Because of Defendant’s denial of Plaintiff’s use and enjoyment of a critical 

public accommodation through Defendant’s acts of discrimination and 

segregation, he is deterred from visiting that accommodation by accessibility 

barriers and other violations of the ADA.

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18.Defendant has denied Plaintiff -

a. The opportunity to participate in or benefit from the goods, services, 

facilities, privileges, advantages, or accommodations at its hotel.

b. The right to be included in the population at large who benefits from 

Defendant’s hotel without being segregated because his disability.

19.Plaintiff intends to book a room at Defendant’s hotel in the future but he will 

likely suffer repeated injury unless and until the barriers of accessibility and 

ambulatory and wheelchair accessibility barriers have been removed.

CONTINUING JURISDICTION

20.ADA violations which form the subject matter of this Verified Complaint 

change frequently due to regular maintenance, remodels, repairs, and normal 

wear and tear.

21.Defendant’s ADA Violations are of the type that can reasonably be expected to 

start up again, allowing Defendant to be free to return to the old ways' after the 

threat of a lawsuit had passed.

22.If one or more ADA violation are cured, Plaintiff alleges that they were cured 

and timed to anticipate the current lawsuit, and not as a good faith effort to 

comply with the ADA.

23.To remedy the violations of 28 CFR 36.302(e), Defendant would be required 

not only to modify all 1st and 3rd party lodging websites, but would be required 

to do so truthfully and accurately.

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COUNT ONE

Violation of Plaintiff’s Civil Rights under the ADA

24.Plaintiff realleges all allegations heretofore set forth.

25.By virtue of his disability, Plaintiff requires an ADA compliant lodging facility 

particularly applicable to his mobility, both ambulatory and wheelchair assisted.

26.On or about December 4, 2017 Plaintiff intended to visit Phoenix and spend the 

night there. He visited a 3rd party website www.expedia.com to book a room.

27.3

rd party website disclosed general availability and description of Defendant’s 

hotel.

28.3

rd party website failed to identify and describe mobility related accessibility 

features and guest rooms offered through its reservations service in enough

detail to reasonably permit Plaintiff to assess independently whether 

Defendant’s hotel meets his accessibility needs.

29.3rd party website failed to disclose the following accessibility features in 

enough detail to reasonably permit Plaintiff to assess independently whether 

Defendant’s hotel and guest rooms meets his accessibility needs:

a. Whether accessible routes comply with § 206 of the 2010 Standards; and

b. Whether operable parts on accessible elements, accessible routes and 

accessible rooms comply with §§205 and 803 of the 2010 Standards; and

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c. Whether any accessible means of egress comply with §207 of the 2010 

Standards.

d. Whether parking spaces comply with §§208 and 502 of the 2010 

Standards; and

e. Whether passenger loading zones comply with §§209 and 503 of the

2010 Standards; and

f. Whether any drinking fountains comply with §211 of the 2010 Standards; 

and

g. Whether any kitchens, kitchenettes and sinks comply with §§212 and 804 

of the 2010 Standards; and

h. Whether toilet facilities and bathing facilities comply with §213 of the 

2010 Standards; and

i. Whether any washing machines and clothes dryers comply with §§214 

and 611 of the 2010 Standards; and

j. Whether accessible hotel rooms comply with §224 of the 2010 Standards; 

and

k. Whether dining surfaces and work surfaces comply with §§226 and 902 

of the 2010 Standards; and

l. Whether sales and service elements comply with §227 of the 2010 

Standards; and

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m. Whether any saunas and steam rooms comply with §§241 and 612 of the 

2010 Standards; and

n. Whether any swimming pools, wading pools and spas comply with 

§§242 and 1009 of the 2010 Standards; and

o. Whether floor and ground surfaces comply with §302 of the 2010 

Standards; and

p. Whether changes in level comply with §303 of the 2010 Standards; and

q. Whether turning spaces comply with § 304 of the 2010 Standards; and

r. Whether floor and ground spaces comply with §305 of the 2010 

Standards; and

s. Whether knee and toes clearances comply with §306 of the 2010 

Standards; and

t. Whether protruding objects comply with §307 of the 2010 Standards; and

u. Whether the reach ranges comply with §308 of the 2010 Standards; and

v. Whether the operating parts on accessible features comply with §309 of 

the 2010 Standards; and

w. Whether accessible routes comply with §402 of the 2010 Standards; and

x. Whether walking surfaces comply with §403 of the 2010 Standards; and

y. Whether doors, doorways and gates comply with §404 of the 2010 

Standards; and

z. Whether ramps comply with § 405 of the 2010 Standards; and

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aa.Whether curb ramps comply with §406 of the 2010 Standards; and

bb.Whether any elevators comply with §407 of the 2010 Standards; and

cc.Whether any platform lifts comply with §410 of the 2010 Standards; and

dd.Whether any stairways comply with §504 of the 2010 Standards; and

ee.Whether handrails on elements requiring handrails comply with §505 of 

the 2010 Standards; and

ff. Whether the plumbing facilities comply with Chapter 6 of the 2010 

Standards with respect to all the following subchapters of Chapter 6: §§ 

602 (drinking fountains), 603 (toilets and bathing rooms), 604 (water 

closets and toilet compartments, 605 (urinals), 606 (lavatories and sinks), 

607 (bathtubs), 607 (shower compartments), 608 (grab bars), 610 (seats 

in bathtubs and shower compartments), and

gg.Whether service counters comply with 904 of the 2010 Standards.

30.Thereafter, Plaintiff consulted Defendant’s 1st party website www.hilton.com

to determine the information unavailable from the third-party website.

31.1

st party website failed to identify and describe mobility related accessibility 

features and guest rooms offered through its reservations service in enough 

detail to reasonably permit Plaintiff to assess independently whether 

Defendant’s hotel meets his accessibility needs.

32.In particular, 1st party website disclosed the following accessibility amenities:

For Your Accessibility Needs

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The Following Features Are Available:

• Accessible Rooms

• Accessible business center

• Accessible concierge desk

• Accessible exercise facility

• Accessible guest rooms with mobility features with entry or 

passage doors that provide 32” of clear width

• Accessible hotel restaurant

• Accessible parking

• Accessible parking spaces for cars in the self-parking facility

• Accessible public entrance

• Accessible registration desk

• Accessible route from the accessible public entrance to the 

accessible guestrooms

• Accessible route from the accessible public entrance to the 

registration area

• Accessible route from the hotel’s accessible entrance to the 

meeting room/ballroom area

• Accessible route from the hotel’s accessible public entrance to at 

least one restaurant

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• Accessible route from the hotel’s accessible public entrance to the 

business center

• Accessible route from the hotel’s accessible public entrance to the 

exercise facilities

• Accessible route from the hotel’s accessible public entrance to the 

spa

• Accessible route from the hotel’s accessible public entrance to the 

swimming pool

• Accessible swimming pool

• Accessible transportation with advance notice

• Assistive listening devices for meetings upon request

• Closed captioning on televisions or closed captioning decoders

• Level or ramp entrance into the building

• Public Areas/Facilities accessible for physically challenged

• Service support animals welcome

• Swimming pool hoist for pool access

• TTY for guest use

• Van-accessible parking in the self-parking facility

• Visual alarm for hearing impaired

The Following Features Are Not Available:

• Valet only parking

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33.Thereafter Plaintiff called Defendant’s hotel to inquire whether it was 

compliant with the ADA and suitable for Plaintiff’s accessibility needs.

34.Plaintiff spoke with hotel reservations clerk, Rochelle. Plaintiff specifically 

inquired whether Defendant’s hotel was compliant with the Americans with 

Disabilities Act and compliant with the specific requirements of accessibility. 

35.Reservations clerk responded that the hotel was compliant with the Americans 

with Disabilities Act.

36.Plaintiff subsequently visited the hotel to independently verify that it was, at 

least on the outside, suitable to accommodate his disability. 

37.Plaintiff noted that the hotel was not compliant with the ADA and was replete 

with accessibility barriers in the details which include, without limitation, the 

following areas of non-compliance:

a. 502.2. There are multiple van parking spaces which have width less than 132 

inches.

b. 502.6. The accessible parking signs are below the required 60 inches 

minimum.

c. 503.3. The passenger loading zone is not marked with an access aisle.

d. 503.4. The passenger loading zone has a cross slope steeper than 1:48 inches.

e. 505.3. Staircase with handrails that are not continuous between flights.

f. 505.5. The handrails next to the dining area are less than 1 1/2 inches away 

from the adjacent surface.

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g. 505.10.3. Staircase with no bottom handrail extensions.

h. 403.3. The accessible route leading from the parking lot has a running slope 

steeper than 1:20 inches.

i. 403.3. The accessible route leading to the main entrance has a cross slope 

steeper than 1:48 inches.

j. 405.2. Multiple ramps and curb ramps have a running slope steeper than 1:12 

inches.

k. 405.8. Ramp with a rise greater than 6 inches without handrails.

l. 406.4. Curb ramp with a landing which is not at least as wide as the curb 

ramp.

m. 302.2. Multiple unsecured carpets throughout hotel.

n. 308.2.1. The pool gate latch is at an improper reach range over 48 inches.

o. 309.4. The pool gate requires 2 hands and a twisting of the wrist motion to 

open.

p. 309.4. The lobby restroom door requires more than 5 pounds of force to 

open.

q. 309.4. The business center door requires a twisting of the wrist motion to 

open.

r. Incorrect handrails on an accessible route.

s. Incorrect handrails on staircase.

t. The bar is inaccessible.

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u. Other ADA violations to be discovered through a discovery process.

38.As a result of the deficiencies described above, Plaintiff declined to book a room 

at the hotel.

39.The removal of accessibility barriers listed above is readily achievable.

40.As a direct and proximate result of ADA Violations, Defendant’s failure to 

remove accessibility barriers prevented Plaintiff from equal access to the 

Defendant’s public accommodation.

WHEREFORE, Plaintiff prays for all relief as follows:

A. Relief described in 42 U.S.C. §2000a – 3; and 

B. Relief described in 42 U.S.C. § 12188(a) and (b) and, particularly -

C. Injunctive relief order to alter Defendant’s place of public 

accommodation to make it readily accessible to and usable by ALL 

individuals with disabilities; and

D. Requiring the provision of an auxiliary aid or service, modification of a 

policy, or provision of alternative methods, to the extent required by 

Subchapter III of the ADA; and

E. Equitable nominal damages in the amount of $1.00; and

F. For costs, expenses and attorney’s fees; and

G. All remedies provided for in 28 C.F.R. 36.501(a) and (b).

COUNT TWO

Negligence

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41.Plaintiff realleges all allegations heretofore set forth.

42.Defendant had a duty to Plaintiff to remove ADA accessibility barriers so that 

Plaintiff as a disabled individual would have full and equal access to the public 

accommodation. 

43.Defendant breached this duty.

44.Defendant is or should be aware that, historically, society has tended to isolate 

and segregate individuals with disabilities, and, despite some improvements, 

such forms of discrimination against individuals with disabilities continue to be 

a serious and pervasive social problem1.

45.Defendant knowingly and intentionally participated in this historical 

discrimination against Plaintiff, causing Plaintiff damage. 

46.Discrimination against individuals with disabilities persists in the use and 

enjoyment of critical public accommodations2.

47.Defendant’s knowing and intentional persistence in discrimination against 

Plaintiff is alleged, causing Plaintiff damage. 

48.Individuals with disabilities, including Plaintiff, continually encounter various 

forms of discrimination, including outright intentional exclusion, the 

discriminatory effects of architectural, overprotective rules and policies, failure 

 

1 42 U.S.C. § 12101(a)(2)

2 42 U.S.C. §12101(a)(3)

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to make modifications to existing facilities and practices, exclusionary 

qualification standards and criteria, segregation, and relegation to lesser 

services, programs, activities, benefits, jobs, or other opportunities3.

49.Defendant’s knowing and intentional discrimination against Plaintiff reinforces 

above forms of discrimination, causing Plaintiff damage.

50.Census data, national polls, and other studies have documented that people 

with disabilities, as a group, occupy an inferior status in our society, and are 

severely disadvantaged socially, vocationally, economically, and 

educationally4.

51.Defendant’s knowing and intentional discrimination has relegated Plaintiff to 

an inferior status in society, causing Plaintiff damage.

52.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 individuals5.

53.Defendant’s knowing and intentional discrimination has worked counter to our 

Nation’s goals of equality, causing Plaintiff damage.

54.Continued existence of unfair and unnecessary discrimination and prejudice 

denies people with disabilities the opportunity to compete on an equal basis and 

 

3 42 U.S.C. §12101(a)(5)

4 42 U.S.C. §12101(a)(6)

5 42 U.S.C. §12101(a)(7)

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to pursue those opportunities for which our free society is justifiably famous, 

and costs the United States billions of dollars in unnecessary expenses resulting 

from dependency and nonproductivity6.

55.Defendant’s knowing and intentional unfair and unnecessary discrimination 

against Plaintiff demonstrates Defendant’s knowing and intentional damage to 

Plaintiff.

56.Defendant’s breach of duty caused Plaintiff damages including, without 

limitation, the feeling of segregation, discrimination, relegation to second class 

citizen status the pain, suffering and emotional damages inherent to 

discrimination and segregation and other damages to be proven at trial.

57.By violating Plaintiff’s civil rights, Defendant engaged in intentional, 

aggravated and outrageous conduct.

58.The ADA has been the law of the land since 1991, but Defendant engaged in a 

conscious action of a reprehensible character, that is, Defendant denied Plaintiff 

his civil rights, and cause him damage by virtue of segregation, discrimination, 

relegation to second class citizen status the pain, suffering and emotional 

damages inherent to discrimination and segregation and other damages to be 

proven at trial

 

6 42 U.S.C. §12101(a)(8)

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59.Defendant either intended to cause injury to Plaintiff or defendant consciously 

pursued a course of conduct knowing that it created a substantial risk of 

significant harm to Plaintiff.

60.Defendant is liable to Plaintiff for punitive damages in an amount to be proven 

at trial sufficient, however, to deter this Defendant and others similarly situated 

from pursuing similar acts.

WHEREFORE, Plaintiff prays for relief as follows:

A. For finding of negligence; and

B. For damages in an amount to be proven at trial; and

C. For punitive damages to be proven at trial; and

D. For such other and further relief as the Court may deem just and proper.

COUNT THREE

Negligent Misrepresentation

61.Plaintiff realleges all allegations heretofore set forth.

62.Defendant failed to exercise reasonable care or competence in obtaining or 

communicating the information regarding ADA compliance to Plaintiff both on 

the websites and telephonically.

63.Defendant hotel supplied false information to Plaintiff for guidance in 

Plaintiff’s business transaction, to wit: the renting of a hotel room.

64.Defendant’s false statement was made in the course of Defendant’s business in 

which Defendant has a pecuniary interest, to wit: renting of rooms.

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65.Plaintiff justifiably relied on Defendant’s false information.

66.Plaintiff has suffered pecuniary losses as a result of his reliance on Defendant’s 

false information regarding ADA compliance, to wit: he spent time, effort and 

resources. 

67.Defendant either intended to cause injury to Plaintiff or defendant consciously 

pursued a course of conduct knowing that it created a substantial risk of 

significant harm to Plaintiff.

68.Defendant is liable to Plaintiff for punitive damages in an amount to be proven 

at trial sufficient, however, to deter this Defendant and others similarly situated 

from pursuing similar acts.

WHEREFORE, Plaintiff prays for relief as follows:

A. For finding of negligent misrepresentation; and

B. For damages in an amount to be proven at trial; and

C. For punitive damages to be proven at trial; and

D. For such other and further relief as the Court may deem just and proper.

COUNT FOUR

Failure to Disclose

69.Plaintiff realleges all allegations heretofore set forth.

70.Defendant was under a duty to Plaintiff to exercise reasonable care to disclose 

matters required to be disclosed pursuant to 28 CFR 36.302(e) as more fully 

alleged above.

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71.Defendant was under a duty to disclose matters to Plaintiff that Defendant knew 

were necessary to be disclosed to prevent Plaintiff to be misled by partial 

disclosures of ADA compliance as more fully alleged above.

72.The compliance with the ADA is a fact basic to the transaction.

73.Defendant failed to make the necessary disclosures.

74.As a direct consequence of Defendant’s failure to disclose, Plaintiff visited the 

hotel, but did not book a room because of its non-compliance with the ADA.

75.Plaintiff has been damaged by Defendant’s non-disclosure.

76.Defendant either intended to cause injury to Plaintiff or defendant consciously 

pursued a course of conduct knowing that it created a substantial risk of 

significant harm to Plaintiff.

77.Defendant is liable to Plaintiff for punitive damages in an amount to be proven 

at trial sufficient, however, to deter this Defendant and others similarly situated 

from pursuing similar acts.

WHEREFORE, Plaintiff prays for relief as follows:

A. For finding of that Defendant failed to disclose information; and

B. For damages in an amount to be proven at trial; and

C. For punitive damages to be proven at trial; and

D. For such other and further relief as the Court may deem just and proper.

COUNT FIVE

Fraud

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Common Law and Consumer

78.Plaintiff realleges all allegations heretofore set forth.

79.Defendant made a representation as alleged above.

80.The representation was material.

81.The representation was false.

82.Defendant knew that the representation was false or was ignorant to the truth or 

falsity thereof.

83.Defendant intended that Plaintiff rely on the false representation.

84.Plaintiff reasonably relied on the misrepresentation.

85.Plaintiff has a right to rely on the misrepresentation.

86.Plaintiff was consequently and proximately damaged by Defendant’s 

misrepresentation. 

87.Defendant’s misrepresentation was made in connection with the sale or 

advertisement of merchandise with the intent that Plaintiff rely on it.

88.Renting of hotel rooms is “merchandise” as this term is defined in A.R.S. §44-

1521(5).

89. Plaintiff relied on the misrepresentation.

90.Plaintiff suffered an injury resulting from the false misrepresentation

91.Defendant either intended to cause injury to Plaintiff or defendant consciously 

pursued a course of conduct knowing that it created a substantial risk of 

significant harm to Plaintiff.

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92.Defendant is liable to Plaintiff for punitive damages in an amount to be proven 

at trial sufficient, however, to deter this Defendant and others similarly situated 

from pursuing similar acts.

WHEREFORE, Plaintiff prays for relief as follows:

A. For finding of that Defendant failed to disclose information; and

B. For damages in an amount to be proven at trial; and

C. For punitive damages to be proven at trial; and

D. For such other and further relief as the Court may deem just and proper.

REQUEST FOR TRIAL BY JURY

Plaintiff respectfully requests a trial by jury in issues triable by a jury.

RESPECTFULLY SUBMITTED this 7

th day of December, 2017.

STROJNIK, P.C.

Peter Strojnik, 6464

Attorneys for Plaintiff 

VERIFICATION

Plaintiff verifies that he has read the forgoing and that the factual allegations stated above 

are true and correct to the best of his knowledge, information and belief. Plaintiff makes 

this verification under the penalty of perjury.

/s/ Fernando Gastelum

Authorized Electronically

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