Judge: Alison Mackenzie, Case: 23SMCV00739, Date: 2023-05-16 Tentative Ruling
Case Number: 23SMCV00739 Hearing Date: May 16, 2023 Dept: 207
Background
Plaintiff Brian Whitaker (“Plaintiff”) brings this action
against Defendant California Pizza Kitchen, Inc. (“Defendant”) alleging
violations of the Unruh Civil Rights Act (“Unruh Act”) and the California
Disabled Persons Act. Plaintiff Brian Whitaker is a quadriplegic and uses a
wheelchair for mobility. Plaintiff alleges he visited one of Defendant’s
restaurants located in Culver City and observed a violation of the Americans
with Disabilities Act concerning the toe clearance under the outdoor dining
surfaces at the restaurant. Plaintiff’s Complaint alleges two causes of action:
(1) violation of the Unruh Act and (2) violation of the Disabled Persons Act.
Plaintiff seeks injunctive relief, treble actual damages, and statutory damages
for each alleged violation of each Act. Defendant now moves to strike the
paragraphs of Plaintiff’s complaint requesting injunctive relief, claiming the
injunctive relief sought by Plaintiff is unavailable under Civil Code § 52 and
Plaintiff has disclaimed any right to injunctive relief under Civil Code § 55.
Plaintiff opposes Defendant’s motion.
Request for Judicial Notice
Plaintiff and Defendant each ask the Court to take judicial
notice of rulings of various trial courts concerning the interpretation of the
Unruh Act. Courts can take judicial notice of the existence of Court records. (Arce
ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471,
483; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 790
n.10.) This includes the records of any Court of record in the United States. (Salazar
v. Upland Police Dept.¿(2004) 116 Cal.App.4th 934, 946.) Defendant also
requests the Court take judicial notice of various historical versions of the
Unruh Act and Disabled Persons Act and the associated legislative history of
those sections. The parties’ requests are unopposed. However, while Courts may
take judicial notice of official acts and public records, they cannot take
judicial notice of the truth of the matters stated therein. (In re Joseph H.¿(2015)
237 Cal.App.4th 517, 541.) Subject to this limitation, the Court GRANTS the
parties’ requests.
Legal
Standard
Motions to strike are used to reach defects or objections
to pleadings which are not challengeable by demurrer (i.e., words, phrases,
prayer for damages, etc.). (C.C.P. §§ 435, 436 & 437.) A motion to strike
lies only where the pleading has irrelevant, false or improper matter, or has not
been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(C.C.P. § 437.)
Analysis
1. Meet and Confer Requirement
The Court finds Defendant has
complied with the meet and confer requirements imposed by Code Civ. Proc. § 435.5
in bringing this motion to strike. (Link Decl. at ¶3.)
2. Motion to
Strike
It is undisputed that Plaintiff’s
Complaint seeks injunctive relief pursuant to Civil Code § 52. Defendant argues
section 52 does not authorize the specific forms of injunctive relief sought in
the Complaint’s prayer for relief. The central point raised by Defendant’s
motion is the interpretation of the word “preventative” in the context of Civil
Code § 52(c)(3), which provides that a complaint alleging a violation of the
Unruh Act may contain “A request for preventive relief, including an
application for a permanent or temporary injunction, restraining order, or
other order against the person or persons responsible for the conduct, as the
complainant deems necessary to ensure the full enjoyment of the rights
described in this section.”
Defendant argues the injunctive
relief sought by Plaintiff’s Complaint is not merely “preventative” relief but
seeks affirmative, mandatory injunction requiring Defendant to “remove all
presently existing architectural barriers,” “obtain “biennial Certified Access
Specialist (“CASp”) architectural inspections of the subject facility to verify
on-going compliance,” and implement “accessibility policies and … annual
employee training on providing full and equal access to clients or customers
with disabilities.” (Complaint at p.7.) Neither party has presented the Court
with any authority squarely on point, nor has the Court been able to locate any
such authority through its own research and investigation. The parties’
requests for judicial notice illustrate that trial courts have struggled with
this question and have reached different results as to whether section 52(c)
authorizes the sort of relief sought by Plaintiff in this action. Based on its
own independent reading of the statutory language and relevant authorities
regarding statutory interpretation, the Court is persuaded that section 52(c)
does not authorize the relief sought in Plaintiff’s Complaint.
The Court begins by noting
Plaintiff’s Complaint expressly states he is not seeking injunctive relief
pursuant to any provision of the Disabled Persons Act, including Civil Code §
55. (Complaint at p.7, fn. 2.) Thus, Plaintiff only seeks injunctive relief in
this action under Civil Code § 52(c) of the Unruh Act. The California Supreme
Court in Jankey v. Lee (2012) 55 Cal.4th 1038 explained the
interplay between sections 52 and 55:
The Unruh Civil Rights Act broadly
outlaws arbitrary discrimination in public accommodations and includes
disability as one among many prohibited bases. (§ 51, subd. (b).) As part of
the 1992 reformation of state disability law, the Legislature amended the Unruh
Civil Rights Act to incorporate by reference the ADA, making violations of the
ADA per se violations of the Unruh Civil Rights Act. [Citations.] This
amendment was intended to extend to disabled individuals aggrieved by an ADA
violation the full panoply of Unruh Civil Rights Act remedies. [Citation.]
These include injunctive relief, actual damages (and in some cases as much as
treble damages), and a minimum statutory award of $4,000 per violation. [Citations.]
The Disabled Persons Act substantially
overlaps with and complements the Unruh Civil Rights Act. [Citation.] More
narrow in focus than the Unruh Civil Rights Act, it generally guarantees people
with disabilities equal rights of access “to public places, buildings,
facilities and services, as well as common carriers, housing and places of
public accommodation.” [Citations.] As with the Unruh Civil Rights Act, the
Legislature amended the Disabled Persons Act to incorporate ADA violations and
make them a basis for relief under the act. [Citations.] The available remedies
include actual damages (and in some cases as much as treble damages), with a
$1,000 minimum recovery. [Citations.] Recognizing the overlap between the Unruh
Civil Rights Act and the Disabled Persons Act, the Legislature expressly
foreclosed double recovery. [Citations.]
Section 55 is part of the Disabled
Persons Act, but it offers an independent basis for relief. [Citation.] It is
broader in two respects than the private right of action authorized by section
54.3: section 55 extends standing to those “potentially aggrieved,” not just
those who have been actually denied access, and relief may be predicated on
potential violations not only of sections 54 and 54.1 but also of various
provisions in both the Government Code and the Health and Safety Code. [Citations.]
Section 55 is also narrower than section 54.3 in one significant respect: it
authorizes only injunctive relief, not damages. [Citation.]
(Id. at 1044–1045.)
Section 52 does not define the term “preventive relief.” However,
Civil Code § 3368 states “Preventive relief is given by prohibiting a party
from doing that which ought not to be done.” Courts “must construe
identical words in different parts of the same act or in different statutes
relating to the same subject matter as having the same meaning.” (Balasubramanian
v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 988; see
also Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. (2005)
130 Cal.App.4th 890, 899 [in the absence of a contrary intent courts “presume
the Legislature intended that we accord the same meaning to similar phrases”].)
Where, as here, the Legislature has chosen to use a statutorily defined
term, the Court must presume that the Legislature intended that the courts use
that statutory definition in construing Civil Code § 52(c). The Court thus finds
the reference to “preventative relief” in section 52 as relief which prohibits
a party from doing that which ought not to be done.
Plaintiff argues the Unruh Act specifically contemplates the
granting of injunctive relief. But the question is not whether the Act provides
for injunctive relief in a general sense, the question is whether there are
limits to this injunctive relief. Courts have recognized distinctions between
prohibitive injunctions which prevent a party from taking certain action and
mandatory injunctions which compel performance of an affirmative act that
changes the status quo. (Davenport v. Blue Cross of California (1997) 52
Cal.App.4th 435, 446-447 [“the general rule is that an injunction is
prohibitory if it requires a person to refrain from a particular act and
mandatory if it compels performance of an affirmative act that changes the
position of the parties”]; Ohaver v. Fenech (1928) 206 Cal. 118, 122
[“As a general rule, we think we may say that when the injunction merely grants
preventive relief it is prohibitive, but when it directly or indirectly grants
affirmative relief it is mandatory”].)
Applying the definition of section 3368 to the express language
of section 52(c) leads the Court to conclude that section 52(c) permits a plaintiff
to seek a prohibitory injunction requiring a defendant to refrain from a
particular act but does not authorize the imposition of mandatory injunctive
relief that compels the performance of an affirmative act that changes the
position of the parties.
Plaintiff’s opposition relies heavily on the decision in Thurston
v. Midvale Corp. (2019) 39 Cal.App.5th 634, claiming the Thurston
Court rejected the interpretation of section 52 now advanced by Defendant. The
Court finds Plaintiff’s reliance on Thurston is misplaced because the
Court in that case did not consider or determine the interpretation or scope of
“preventative relief” in section 52. Thurston concerned claims under the
ADA and Unruh Act concerning an allegedly non-compliant website. The trial
court had granted an injunction that required an affirmative redesign of the
defendant’s website. The trial court rejected the defendant’s contention that
it could not be compelled to redesign its website to conform to voluntary
accessibility guidelines promulgated by a nongovernmental consortium. (Id.
at 638.) In raising this argument, the defendant did not argue that the
proposed injunctive relief was not available under section 52(c)(3). Instead, it
argued the plaintiff lacked standing to claim prospective relief because she
had not shown she would be harmed in the future. (Id. at 651.) The Court
found the defendant had forfeited this standing argument by failing to present
any applicable authority. (Id.) The Court explained:
Appellant has not cited any cases
discussing the requirements for an injunction under the Unruh Civil Rights Act
and suggests no such case exists. If that is true, appellant makes no argument
for what those requirements should be: appellant does not discuss the language,
legislative intent or purpose of the Unruh Civil Rights Act or Civil Code
section 52, which authorizes “any person aggrieved” to seek an injunction.
(Id., subd. (c).) Appellant does not address our Supreme Court’s consistent
holding that “ ‘the Act must be construed liberally in order to carry out its
purpose’ ” or the fact that “[i]n light of its broad preventive and remedial purposes,
courts have recognized that ‘[s]tanding under the Unruh Civil Rights Act is
broad.’ ” [Citation.] Appellant’s only reference to section 52 takes a short
phrase out of context. Appellant argues that “preventative relief cannot be
‘deemed necessary’ to ensure [Thurston] is afforded a right of access” to the
restaurant. In fact, the language of section 52, subdivision (c)(3) authorizes
a complainant to seek preventative relief “as the complainant deems necessary
to ensure the full enjoyment of the rights described in this section.” Thus,
appellant has failed to demonstrate error.
(Id. at 652.) Accordingly, the Thurston Court
was not asked to determine the meaning or scope of the term “preventive relief”
in section 52. It has long been recognized that “Opinions are not authority for
propositions not considered.” (Ginns v. Savage (1964) 61 Cal.2d 520,
524, fn. 2.) The Court thus finds Thurston does not guide the Court in
how to interpret section 52(c).
Plaintiff also claims Civil Code § 55.56 was intended to
modify the Unruh Act and allow plaintiffs to pursue mandatory injunctive
relief. This argument is unsupported by any authority and runs contrary to the
express language of section 55.56(h), which states “This section does not alter
the applicable law for the awarding of injunctive or other equitable relief for
a violation or violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate damages.”
Plaintiff next argues the purpose of the Unruh Act “is
explicitly to encourage remediation” and claims Defendant’s interpretation of
“preventative relief” would undermine that purpose. (Opp. at 7.) Plaintiff does
not cite to any authority for this proposition. Even if the Court were to
assume the Unruh Act is intended to encourage remediation, the Court does not
find that mandatory injunctive relief is the only way by which the Act could
encourage remediation. The Court notes in addition to authorizing the imposition
of “preventative” injunctive relief, the Civil Code also provides for the
imposition of monetary damages against those who violate the requirements of
the Act. Indeed, Plaintiff’s Complaint expressly seeks to recover such damages.
(Complaint at p. 7 [seeking “Damages under the Unruh Civil Rights Act or
California Disabled Persons Act, which provide for up to treble damages and a
statutory minimum of $4,000 or $1,000 respectively per violation of each
Act”].) Thus, the Court finds mandatory injunctive relief is not necessary to
accomplish the claimed purpose of the Act.
For these reasons, the Court GRANTS Defendant’s motion to strike
the provisions of Complaint seeking mandatory injunctive relief. In doing so,
the Court will grant Plaintiff leave to amend to seek prohibitory injunctive
relief in accordance with the Court’s interpretation of section 52(c) as set
forth above.
Conclusion
Defendant’s motion to strike is GRANTED with 30-days’ leave
to amend.