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Filed 11/9/09
CERTIFIED FOR PUBLICATIONIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIATHIRD APPELLATE DISTRICT(Sacramento)----GEORGE LOUIE,Plaintiff and Appellant,v.BFS RETAIL AND COMMERCIAL OPERATIONS,LLC,Defendant and Respondent.C059800(Super. Ct. No.34200800006426)APPEAL from a judgment of the Superior Court of SacramentoCounty, Loren E. McMaster, Judge. Reversed.Law Offices of Morse Mehrban, Morse Mehrban and Brian KeithAndrews for Plaintiff and Appellant.Rutan & Tucker, Ernest W. Klatte, III and Chris M. HeikausWeaver for Defendant and Respondent.Plaintiff George Louie seeks damages against defendant BFSRetail and Commercial Operations, LLC (BFRC) for alleged
 
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violation of California‟s Disabled Per
sons Act (Civ. Code, § 54et seq.
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(DPA)), because the countertops in BFRC‟s business
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Undesignated statutory references are to the Civil Code.
Section 54 says, “Individuals with disabilities or medical
conditions have the same right as [other members of] the generalpublic to the full and free use of . . . public facilities, andother public places. [¶] . . . [¶] A violation of the right ofan individual under the [federal] Americans with DisabilitiesAct of 1990 (Public Law 101-336 [(ADA)]) also constitutes a
violation of this section.”
 
Section 54.1 says, “Individuals with disabilities shall be
entitled to full and equal access, as other members of thegeneral public, to accommodations, advantages, facilities. . . , places of public accommodation . . . and other places towhich the general public is invited, subject only to theconditions and limitations established by law, or state orfederal regulation, and applicable alike to all persons. [¶]. . . [¶] (d) A violation of the right of an individual underthe [ADA] also constitutes a violation of this section, andnothing in this section shall be construed to limit the access
of any person in violation of that act.”
 
Section 54.3 says, “Any person or persons, firm or
corporation who denies or interferes with admittance to orenjoyment of the public facilities as specified in Sections 54and 54.1 or otherwise interferes with the rights of anindividual with a disability under Sections 54, 54.1 and 54.2 isliable for each offense for the actual damages and any amount asmay be determined by a jury, or the court sitting without ajury, up to a maximum of three times the amount of actualdamages 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 therights provided in Sections 54, 54.1, and 54.2. [¶] . . . [¶]. . . The remedies in this section are nonexclusive and are inaddition to any other remedy provided by law [except damagescannot be imposed under both the DPA and section 52 of the UnruhAct], including, but not limited to, any action for injunctiveor other equitable relief available to the aggrieved party orbrought in the name of the people of this state or of the United
States.”
 
 
3establishments were allegedly too high to allow wheelchairaccess. The trial court entered judgment of dismissal upon
BFRC‟s demurrer, concluding res judicata barred thi
s lawsuitbased on a consent decree in a class action lawsuit against BFRCin the United States District Court in Florida, which alleged
BFRC‟s facilities denied equal access to disabled persons in
violation of the federal ADA (42 U.S.C. § 12101 et seq.). Weshall conclude that, because the Florida federal case wasresolved by a consent decree expressly reserving any damageclaims, res judicata does not bar this claim for damages. Weshall therefore reverse the judgment of dismissal.
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 BACKGROUNDThe ple
ading at issue in this appeal is plaintiff‟s “FIRSTAMENDED COMPLAINT FOR DAMAGES,” filed May 12, 2008, which
asserted one cause of action for violation of sections 54 and
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We recognize the distinction between res judicata (claimpreclusion), which precludes relitigation of the same cause ofaction, and collateral estoppel (issue preclusion), which barsrelitigation of issues. (
Mycogen Corp. v. Monsanto Co
. (2002)28 Cal.4th 888, 896-897.) Here, although this lawsuit asserteda cause of action under a state statute, and the federaljudgment involved a claim under a federal statute, BFRC invokedand the trial court ruled on the ground of res judicata.The California Supreme Court recently held that a federalcourt judgment in favor of the defendants on a civil rightsaction (42 U.S.C. § 1983) arising from police shooting a fleeingsuspect, collaterally estopped the plaintiffs from pursuing awrongful death claim in state court, even on a theory that the
defendants‟ preshooting conduct was negligent. (
Hernandez v.City of Pomona
(2009) 46 Cal.4th 501.)
Hernandez
has no bearingon the case before us.
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