SANTA ANA, CALIF. (Legal Newsline) – A panel trio of justices from the California State Court of Appeal’s Fourth District have upheld a lower court ruling that the owners of a San Juan Capistrano-based country club did not discriminate against a golfer with a medical disability.
On Nov. 14, state appellate justices Maurice Sanchez, Joanne Motoike and Thomas A. Delaney affirmed a ruling from the California Superior Court’s Orange County division, which ruled in favor of American Golf Corporation and Root’N USA Corporation, and against plaintiff Jefferey Lurner.
Sanchez authored the Court’s opinion in this matter.
“Plaintiff Jefferey Lurner was a member of Marbella Golf and Country Club (Marbella) where he played golf. Defendants American Golf Corporation and Root’N USA Corporation own and operate Marbella. At some point after plaintiff joined Marbella, he was diagnosed with pulmonary arterial hypertension (PAH). Given this disability, plaintiff claimed he had to drive his golf cart to wherever his ball landed on the golf course. But for safety reasons, Marbella had rules governing where golfers could drive their golf carts. Some of those restrictions applied to all members, including golfers with disabilities,” Sanchez said.
“Plaintiff brought the instant action alleging defendants failed to accommodate his disability and denied him full and equal enjoyment of the golf course [under the Americans with Disabilities Act of 1990, the Unruh Civil Rights Act and California Disabled Persons Act]. After the case proceeded to trial, the jury returned a verdict in favor of defendants. The jury found defendants did not ‘discriminate against or deny [the plaintiff] full and equal access to and enjoyment of accommodations or advantages or facilities or services at [Marbella] at any time after May 14, 2016.’ The court subsequently denied plaintiff’s motion for judgment notwithstanding the verdict (JNOV) and motion for new trial.”
On appeal, the plaintiff sought relief from the judgment, and the trial court’s denial of his JNOV motion and motion for new trial. Lurner contended Marbella’s relevant policies were facially discriminatory, arguing there was no substantial evidence to support the verdict, and the trial court erred by finding defendants modified their policies for plaintiff.
Notably, the Court outlined the facility’s access policy and then found that the defendants actively worked with Lurner to try to better accommodate him and his medical condition.
“Marbella’s former general manager, Theodore Axe, testified Marbella had rules regarding where golfers could drive their golf carts. He testified these rules were necessary from a ‘safety standpoint’ and ‘traffic standpoint’ because the golf carts had no seat belts and could also damage the golf course. He noted it was common for golf courses, private clubs and hotels to have policies governing the use of golf carts. As a general rule, Marbella required golf carts to be driven on the cart paths, which were all over the golf course and ‘encompassed the entire 18 holes of golf.’ The golf carts could not be driven over sprinkler heads or areas that were newly planted, wet or under repair. The carts also could not approach closer than 10 yards to any tee, green, bunker or respective shoulder,” Sanchez said.
“In February 2014, Marbella implemented a special cart access flag (SCAF) policy, which is central to the instant appeal. According to Marbella’s general manager, the SCAF policy, which is also known as the ‘blue flag’ policy, is a standard policy used by various golf clubs throughout the country. Defendants created the SCAF policy to provide greater access to the golf course to disabled golfers. Under the SCAF policy, members who had a handicap placard from the Department of Motor Vehicles or doctor’s note confirming their physical limitations could obtain a blue SCAF flag for their golf cart. With the blue flag, golfers could: (1) ‘Drive golf carts on the golf course, at the sole discretion of management, when holes are not accessible to golf carts (i.e., after light rain, or during the grow-in about 21 days after over-seeding, etc.) as course conditions permit’; and (2) ‘Drive golf carts on specific holes designated by management, when the ‘gate system’ is closed on that hole (course conditions permitting).’ The former was ‘limited to fairways only and not roughs, with the exception of entering and exiting the hole.”
Axe sent a letter to Lurner advising him of the SCAF policy and which outlined that he “was required to abide by Marbella’s policies regarding golf cart operation and cart routes ‘unless and until he qualified for a SCAF flag” – but also that Axe would consider making an exception for Lurner, if he would only sign the letter, but Lurner refused to do so.
Axe also testified that, in response to members who complained about the plaintiff driving his golf cart to the ball, he notified them that the plaintiff needed to do so because he had a physical disability.
“Plaintiff later met with [head golf manager] Mark McDonough and Owen Westervelt, another former general manager at Marbella, in 2017. Plaintiff asked for help because members were upset that he was violating the SCAF policy. According to plaintiff’s testimony, he asked McDonough and Westervelt to change the SCAF policy or to let other members know he was exempt from complying with the policy. Plaintiff also asked them to put something in writing indicating he could violate the rules. After McDonough and Westervelt said they could not do that, plaintiff requested they send an e-mail to all members informing them about plaintiff’s disability,” Sanchez said.
“McDonough and Westervelt did not think it would be appropriate to notify all members about every person who had a disability due to privacy concerns. But plaintiff testified Westervelt was sympathetic to him and listened to his concerns. McDonough ultimately decided to keep a note describing plaintiff’s disability in the pro shop so the pro shop staff would be aware of it and respond to members who expressed concern. If members complained about plaintiff, McDonough testified his staff was instructed to relay the message that plaintiff ‘has a serious and chronic disease and we are working with him to do our best to accommodate.”
Sanchez further noted that after Lurner filed the instant action in 2018, the Marbella facility adopted an adaptive cart policy in March 2019 – and that in this situation, there was “substantial” evidence that the defendants attempted to accommodate Lurner.
“Here, there was substantial evidence defendants modified the SCAF policy for plaintiff by allowing him to drive his golf cart on restricted areas of the golf course. Plaintiff testified he drove his golf cart on prohibited areas after he told management about his disability, and defendants allowed him to do so and never disciplined him for it. Management also notified members who complained about plaintiff that plaintiff needed to drive his cart to the ball because of his disability. Indeed, McDonough kept a note describing plaintiff’s disability in the pro shop so staff could appropriately respond to complaining members. The pro shop staff was instructed to tell members plaintiff had ‘a serious and chronic disease’ and Marbella was ‘working with him to do our best to accommodate.’ Finally, plaintiff continued playing numerous rounds of golf at Marbella prior to trial,” Sanchez said.
Furthermore, Lurner claimed the trial court erred by allowing defendants’ expert witness, Chris Vaughan, an attorney and ADA consultant, to opine on the application of the ADA to the facts of this case.
However, the instant Court found, contrary to the plaintiff’s assertion, that no such “miscarriage of justice” occurred with respect to Vaughan’s testimony – insomuch that competing testimony from plaintiff’s ADA expert, Steven Schraibman, essentially “canceled out” Vaughan’s statements.
“The jury heard competing testimony from plaintiff’s ADA expert, Steven Schraibman, who repeatedly testified the SCAF policy excluded members with disabilities. He also suggested the rules preceding the SCAF policy included the same limitations as the SCAF policy. When asked if those rules affected accessibility to people with disabilities, Schraibman testified: ‘It limits their ability to play a full round of golf.’ ‘So with a disability you don’t get equal service.’ On cross-examination, defendants’ counsel asked if Marbella ‘accommodated [plaintiff] by not enforcing its restrictions on him to allow him to drive his cart wherever on the course he wanted…’ Schraibman testified: ‘No.’ He later added: ‘[Plaintiff] may have driven it on whatever the holes he wanted to or as needed as he said, but in actual fact, there’s no modification to policy and procedures,” Sanchez said.
“On redirect, plaintiff’s counsel asked: ‘So failing to enforce a policy that doesn’t give equal access does not modify that policy that fails to give equal access; true?’ Schraibman testified: ‘Correct.’ Given the conflicting evidence, we cannot conclude there was a miscarriage of justice. ‘At worst, the two experts simply canceled each other out.’ As discussed…there also was substantial evidence defendants modified the SCAF policy for plaintiff by allowing him to drive his golf cart on restricted areas. Plaintiff told management he essentially needed to violate the SCAF policy, proceeded to drive his golf cart on prohibited areas, played numerous rounds of golf up until trial, and was never disciplined for it. There also was evidence management told complaining members they were ‘working with’ plaintiff because of his disability. We accordingly find no reversible error.”
Sanchez and his colleagues ruled in favor of the defendants and affirmed the California Superior Court’s judgment.
“We disagree with plaintiff’s contentions. Assuming, without deciding, Marbella’s policies had a discriminatory effect in practice, there was substantial evidence defendants modified their policies for plaintiff. Any error regarding the testimony of defendants’ expert witness also did not result in a miscarriage of justice. We therefore affirm the judgment,” Sanchez said.
The plaintiff was represented by Nathan Goldberg of Allred Maroko & Goldberg in Los Angeles, Calif., John Carpenter of Carpenter & Zuckerman in Beverly Hills, Calif., plus Norman Pine and Scott Tillett of Pine Tillett Pine, in Sherman Oaks, Calif.
The defendants were represented by James J. McDonald, Jr., Lisa L. Peterson and Megan E. Walker of Fisher & Phillips, in Irvine, Calif. and San Diego, Calif.
California State Court of Appeal, Fourth Appellate District, Division Three case G061267
California Superior Court, Orange County Division case 30-2018-00992342
From Legal Newsline: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com