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DENNIS JAMES BALSAMO, SBN 197809
Law Offices of Dennis James Balsamo
A Professional Law Corporation
1303 E Grand Ave, Ste 103
Arroyo Grande, Ca 93420-2461
Office:
(805) 668-2510
Email:
DJBalsamo@BalsamoLaw.com
File No:
2020-017-001

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Attorney for Plaintiff – SANDRA PRAGER BALSAMO

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ELECTRONICALLY
FILED
7/29/2020 5:05 PM

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SAN LUIS OBISPO

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VERIFIED COMPLAINT
FOR DAMAGES AND DECLARATORY
RELIEF:

Plaintiff,

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20CV-0400
Case No: __________

SANDRA PRAGER BALSAMO, an
individual,

vs.
1. Violation of Civil Code § 51 et seq.- The
Unruh Civil Rights Act; and,
2. Violation of Civil Code § 54 et seq.- The
California Disabled Persons Act

SMART & FINAL STORES, LLC, a
California limited liability company;
MARTI BUENTIEMPO, an individual;
and DOES 1 through 10, inclusive,

DEMAND FOR JURY TRIAL
Defendants.

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COMES NOW, plaintiff, SANDRA PRAGER BALSAMO ("Plaintiff'), hereby alleges against

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defendants, SMART & FINAL STORES, LLC, a California limited liability company, and MARTI

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BUENTIEMPO, an individual, the following based on her knowledge, information and belief:

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INTRODUCTION
1.

This lawsuit seeks to end the ongoing violations of California’s anti-discrimination law by

defendant, Smart & Final Stores, LLC (“Defendant #1”), a California limited liability company, aided by their
agents and employees, including but not limited to, defendant, Marti Buentiempo (“Defendant #2”), an

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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individual, who have committed and continue to commit discrimination against disabled people, or people
with a medical condition, including Plaintiff, as defined in Government Code §§ 12926 & 12926.1, who have
a medical condition that makes it dangerous to their heath to wear any type of facemask. (Collectively
Defendant #1 and Defendant #2 are hereinafter referred to as “Defendants.”)
2.

During the relevant time in this Complaint, and to current, Defendants have discriminated

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against, denied and continue to deny disabled people or people with a medical condition, including Plaintiff,

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full and equal accommodations or access to their retail stores, including but not limited to, their retail store

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located at 1464 E Grand Ave, Arroyo Grande, CA 93420 (hereinafter “Store #358”) because of his/her/their

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disability and/or medical condition, including Plaintiff, that prevents him/her/them from wearing any type of

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facemask.

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3.

Defendants during the relevant time in this Complaint, and to current, refused/refuse to allow

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into their Store #358; insisted that they leave Store #358; and/or have denied and continue to deny disabled

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people or people with a medical condition, including Plaintiff, full and equal accommodations or access to

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Store #358 because of his/her/their disability and/or medical condition, including Plaintiff, that prevents

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him/her/them from wearing any type of facemask.

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PARTIES:
4.

Plaintiff is a disabled individual with a disability in that she has severe back and

respiratory health issues, including but not limited to asthma, and at all times alleged in this Complaint

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was a resident of the County of San Luis Obispo, State of California.
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5.

Defendant, Smart & Final Stores, LLC (“Defendant #1”), is a California limited liability

company, whose headquarters is in State of California, and at all relevant times mentioned in this

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Complaint, they operate/operated several retail stores in the County of San Luis Obispo, specifically one

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located at 1464 E Grand Ave, Arroyo Grande, CA 93420 (“Store #358”).

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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6.

Defendant, Marti Buentiempo (“Defendant #2”), is an individual, and at all relevant times

mentioned in this Complaint was an employee and agent of Defendant #1 at Store #358 where she holds
the title of assistant manager.
7.

Plaintiff does not know the true names, capacities, or basis for liability of defendants

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sued herein as Does 1 through 10, inclusive, as each fictitiously named Defendant is in some manner

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liable to Plaintiff. Plaintiff will amend this Complaint to allege their true names and capacities when

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ascertained. Plaintiff is informed and believes, and thereon alleges, that at all relevant times mentioned

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in this Complaint, each of the fictitiously named defendants is/are responsible in some manner for the

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injuries and damages to Plaintiff as alleged and that such injuries and damages were proximately caused
by such defendants, and each of them.

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8.

Plaintiff is informed an believes that at all times mentioned herein, each defendant has

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acted and is continuing to act in concert with the other defendants named in this complaint and each of
them has participated in the acts and transactions referred to below and each of them is responsible for
said acts and transactions. Plaintiff, therefore sues said defendant under such fictitious names, pursuant
to the provisions of California Code of Civil Procedure §474.
9.

Plaintiff is informed and believes and thereon alleges that at all times herein mentioned

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each of the defendants sued herein as a Doe was the agent, partner, assignee, successor and/or employee

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of each of the remaining defendants and was at all times acting within the purpose and scope of such

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agency and or employment When Plaintiff ascertains the true names and capacities of said Does 1

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through 10, inclusive, Plaintiff will ask leave of the Court to amend this complaint to allege the true
names and capacities of such defendants at such time as the same have been ascertained.

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JURISDICTION

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10.

This court has subject matter jurisdiction over this matter pursuant to Article VI, §10 of

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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the California Constitution because this action is a cause not given by statute to other trial courts, and
seeks (among other relief) a permanent injunction. Subject matter jurisdiction is further premised on,
inter alia, California Civil Code §§ 51, 51.5, & 51.6.
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This court has personal jurisdiction over Defendants because Defendants do sufficient

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business in California and have sufficient minimum contacts in California to render the exercise of

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personal jurisdiction over them by California courts consistent with traditional notions of fair play and

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substantial justice.

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12.

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Venue is proper in this court because the unequal treatment, discrimination, or distinction

alleged herein occurred in the County of San Luis Obispo, State of California.
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At the time of the alleged discrimination, Defendant #1’s Store #358 where said alleged

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discrimination occurred, is/was located in the County of San Luis Obispo, State of California; and,
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Defendant #2 is/was an employee and agent of Defendant #1 at Store #358 where she holds the title of
assistant manager.

FACTUAL SUMMARY

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On June 9, 2020, Plaintiff entered Store #358 to shop for groceries as she had on many

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other occasions. Plaintiff is disabled and has medical conditions that classifies her as an individual with

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disabilities under both the Americans With Disability Act of 1990 (ADA) and California’s Unruh Civil

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Rights Act (Unruh Act). Plaintiff is/was unable to wear a face mask due to her health issues as was

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recommended – but was not mandatory – due to the COVID-19 virus as of the date of the alleged

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discrimination. The recommendation to wear a facemask itself had/has exemptions for individuals with
health issues that precludes them from wearing facemasks.
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As Plaintiff entered Store #358 an unknown male employee said she was required to wear

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a mask. Plaintiff informed that employee that she has a health condition that prevents her from wearing
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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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a mask. That unknown employee respected Plaintiff’s health issues and allowed her to shop. While
shopping, Plaintiff maintained the recommended social distancing with others in the store.
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After Plaintiff had shopped and as she waited her turn in line to check out, Defendant #2

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approached her. Defendant #2 at first politely said Plaintiff must wear a facemask in order to check out.

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Plaintiff politely informed Defendant #2 she had/has a health condition that precludes her from wearing

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a facemask. Normally, that is where the conversation should have come to an end as Defendant #2 is/was

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precluded by the ADA from inquiring about a disabled person medical condition, including Plaintiff’s

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medical conditions.

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However, Defendant #2 at this time stopped being polite and stated to Plaintiff, “It

doesn’t matter. You must wear a mask to stay here.” Plaintiff, knowing her rights, informed Defendant

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#2 of the Americans with Disabilities Act (which Plaintiff alleges under information and belief that as
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an assistant manager Defendant #2 should have been well aware of). Plaintiff informed Defendant #2
that she was committing a crime by challenging Plaintiff’s health issues and/or disability.
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Defendant #2 then persisted, and accused Plaintiff in front of the many other shoppers of

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lying, and not having a health issue at all. Defendant #2’s false accusations embarrassed and humiliated

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the disabled client Plaintiff in front of a large group of other shoppers.

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Plaintiff informed Defendant #2 that San Luis Obispo County, State and Local COVID-

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to wear a mask. (Plaintiff alleges under information and belief that as an assistant manager Defendant

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#2 should have been well aware of this exemption.) Defendant #2 paid no heed and continued to insist
Plaintiff wear a mask notwithstanding the fact she had/has a medical issue, or that she leave Store #358.
Defendant #2 offered no other accommodations to Plaintiff other then wear a mask or leave the store.

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Defendant #2 advised Plaintiff that Store #358 was “private property” and they “make

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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the rules.” Defendant #2 insisted Plaintiff follow Defendant #1’s rule to wear a facemask or leave the
store. Plaintiff, albeit embarrassed and humiliated, but firm in the knowledge of her rights remained in

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line, and requested Defendant #2 to call the police as she was not leaving, and it was Defendant #2 not

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her that was breaking the law.

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Defendant #2 refused to call the police, and continue to insist Plaintiff wear a mask or

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leave her store. Plaintiff objectively and politely, said she had a right to shop there just like all the other

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non-disabled shoppers, and she would not leave.

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At that point, it was Plaintiff’s turn to approach the checkout stand. Plaintiff proceeded

calmly with her basket of groceries to the checkout stand. As she did so, Defendant #2 ran ahead of her
in a major huff, and ordered the checker to leave the checkout counter. Defendant #2 then locked the

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drawer and refused to check out Plaintiff (hence refusing her equal access to Store #358). Having no
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other civil choice but to leave, Plaintiff left Store #358 after being refused service because of her
disability. Again, she left feeling embarrassed & humiliated as Defendant #2 antics at the checkout stand
was witnessed by a store full of other shippers.

FIRST CAUSE OF ACTION
(VIOLATION OF CALIFORNIA CIVIL CODE §§ 51, ET SEQ. - THE UNRUH ACT)

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Plaintiff repeats, re-alleges, refer to and incorporate herein by reference each and every

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allegation contained in the Paragraphs above as though fully set forth herein.
24.

ADA Title III, Public Accommodations covers businesses and nonprofit service

providers that are public accommodations, privately operated entities offering certain types of courses

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and examinations, privately operated transportation, and commercial facilities. Public accommodations

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are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels,

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movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation

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depots, zoos, funeral homes, day care centers, and recreation facilities including sports stadiums and
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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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fitness clubs. Public accommodations such as Smart & Final LLC stores open to the public must comply
with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal

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treatment.

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“All persons within the jurisdiction of this state are free and equal, and no matter
what their sex, race, color, religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, sexual orientation, citizenship,
primary language, or immigration status are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Emphasis added)

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26.

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The pertinent part of the Unruh Act (California Civil Code §51(b)) holds:

Both “disability” and “medical condition” are defined in California Business &

Professions Code §12926 & §112926.1.
27.

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The Unruh Act, Cal. Civ. Code §51, guarantees all people within the jurisdiction of

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California, no matter what their disabilities, the full and equal accommodations, advantages, facilities,

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privileges and services of all business establishments of every kind whatsoever.

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28.

Plaintiff is a person with disabilities under Cal. Civ. Code §51 and as defined in

California Business & Professions Code §12926 & §112926.1.

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29.

Defendant #1 is a business establishment within the meaning of Cal. Civ. Code §§ 51, et

30.

The pertinent part of the Unruh Act (California Civil Code §52(a)) holds:

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seq.
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“Whoever denies, aids or incites a denial, or makes any discrimination or
distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense
for the actual damages, and any amount that may be determined by a jury, or a
court sitting without a jury, up to a maximum of three times the amount of actual
damage but in no case less than four thousand dollars ($4,000), and any attorney’s
fees that may be determined by the court in addition thereto, suffered by any person
denied the rights provided in Section 51, 51.5, or 51.6.” (Emphasis added here)

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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31.

Defendant #2 is a person within the meaning of Cal. Civ. Code §§ 51 & 52(a), et seq.

that denied Plaintiff equal access to Store #358, and aided Defendant #1 in discriminating against
Plaintiff on June 9, 2020, as alleged in this Complaint.
32.

Because of Defendants’ refusal to allow Plaintiff to shop without a facemask, Plaintiff

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was denied full and equal access to Defendant’s Store #358, and was provided services that are/were

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provided to other Californians who are not disabled, and/or have been provided services that are inferior

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to the services provided to non-disabled Californians. These violations are ongoing. Defendants’ failure

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and refusal to correct the barriers to full and equal access to its retail stores to Plaintiff and other disable

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people constitutes intentional discrimination.
33.

Defendants’ actions were and are in violation of the Unruh Act.

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Plaintiff is thus entitled to injunctive relief remedying the discrimination, pursuant to

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Cal. Civ. Code §52.
35.

Plaintiff is also entitled to statutory damages under Cal. Civ. Code §52.

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Cal. Civ. Code §52 further entitles Plaintiffs to reasonable attorneys' fees and costs.

WHEREFORE, Plaintiffs request relief as set forth below.

SECOND CAUSE OF ACTION
(VIOLATION OF CAL. CIV. CODE §§ 54, ET SEQ. - THE CALIFORNIA DISABLED PERSONS ACT)

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37.

Plaintiff, repeats, re-alleges, and incorporates herein by reference each and every

allegation contained in the Paragraphs above as though fully set forth herein.
38.

The California Disabled Persons Act, Cal. Civ. Code §§ 54 & 54.1 (CDPA) guarantees

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people with disabilities full and free use of all public places and full and equal access to all places to

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which the public is invited.

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39.

Defendants are violating the right of people with medical conditions that preclude them

from wearing facemasks to full and equal access to public places by denying full and equal access to
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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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their retail stores, including but not limited to Store #358.
40.

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Defendant #1’s Store #358 constitutes a "public place" within the meaning of the CDPA,

Cal. Civ. Code §54.1.
41.

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By failing to provide full and equal access to people with medical conditions that

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preclude them from wearing facemasks, the actions of Defendants were and are in violation of the

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CDPA.

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declaratory relief, under Cal. Civ. Code § 54.3.
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THIRD CAUSE OF ACTION
(DECLARATORY RELIEF, CODE CIV. PROC. § 1060)

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Plaintiff is are also entitled to reasonable attorneys' fees and costs.

WHEREFORE, Plaintiffs request relief as set forth below.

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Plaintiff is thus entitled to statutory minimum damages for each offense, and to

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Plaintiff, repeats, re-alleges, and incorporates herein by reference each and every

allegation contained in the Paragraphs above as though fully set forth herein.
45.

Plaintiff contends that Defendant #1 and Defendant #2 must provide disabled people or

people with a medical condition that prevents them from wearing facemasks, including Plaintiff, as defined
in Government Code §§ 12926 & 12926.1, full and equal access to its retail stores, including but not

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limited to Store #358, under California Civil Code §§ 51, et seq. and California Civil Code §§ 54, et
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seq., which prohibit discrimination against disabled people or people with a medical condition, including
Plaintiff. Defendants contend that Defendant #1 may lawfully deny disabled people or people with a
medical condition that prevents them from wearing facemasks, including Plaintiff, as defined in Government

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Code §§ 12926 & 12926.1, with full and equal access to its retain stores, including but not limited to

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Store #358.

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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46.

A judicial declaration is necessary and appropriate at this time in order that each of the

parties may know their respective rights and duties and act accordingly.

PRAYER FOR RELIEF

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A declaration that Defendants are violating the Unruh Act, Cal. Civ. Code §§51 & 52

and the California Disabled Persons Act, Cal. Civ. Code §§54 & 54.3, by failing to provide full and

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equal access to their retail stores, including Store #358, to disabled people or people with medical

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conditions that preclude them from wearing facemasks;

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48.

A preliminary and permanent injunction, prohibiting Defendants from continuing to

violate section 51 of the Unruh Act in California, and requiring Defendant to take steps necessary to
ensure that the benefits and advantages offered by Smart & Final, LLC retail stores are fully and equally

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enjoyable to disabled people or people with medical conditions that preclude them from wearing
facemasks in California;
49.

Damages in an amount to be determined by proof, including applicable statutory damages

pursuant to Cal. Civ. Code §52 or Cal. Civ. Code § 54.3, see Cal. Civ. Code § 54.3(c). ("A person may
not be held liable for damages pursuant to both [Section 54.3] and Section 52 for the same act or failure
to act.");
50.

Plaintiff’s reasonable attorneys' fees, expenses, and costs of suit as provided for by law,

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including Cal. Civ. Code §§ 52 & 54.3 and Cal. Code Civ. Pro. §1021.5, to be paid for by both

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Defendants; and,

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51.

Such other and further relief as the Court deems just and proper.

Date: July 29, 2020
Law Offices of
Dennis James Balsamo
A Professional Law Corporation

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______________________________
DENNIS JAMES BALSAMO
Attorney for Plaintiff
SANDRA PRAGER BALSAMO

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LAW OFFICES OF DENNIS JAMES BALSAMO 
A PROFESSIONAL LAW CORPORATION 
1303 E GRAND AVE, STE 103 
ARROYO GRANDE, CA 93420‐2461 

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Verification

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I, Sandra Prager Balsamo, the undersigned, declare:

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I am the plaintiff in the foregoing action. I have read the forgoing Verified Complaint for Damages

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and Declaratory Relief, and know the contents thereof; that the same is true of my knowledge except as

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to matters which are therein stated upon my information or belief, and, as to those matters, I believe it to

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be true.

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I declare under penalty of perjury under the laws of the State of California, that the foregoing is

true and correct. Executed on July 29, 2020, at Arroyo Grande, California.

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ANDRA PRAGERBALSAMQ

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• ComplaintFOR Violation of the UnruhActetal ~

Law Offices of DennisJames Balsamo
A Professional Law Corporation

SOFll

1303E Grand A VE,Ste 103
Arroyo Grande, Ca 93420-2461