Judge: Alison Mackenzie, Case: 23STCV12363, Date: 2024-01-10 Tentative Ruling

Case Number: 23STCV12363    Hearing Date: January 10, 2024    Dept: 55

CASE NAME: Orlando Garcia v. Esperanza Molina (23STCV12363)

NATURE OF PROCEEDINGS: Defendant’s Demurrer and Motion to Strike to Plaintiff’s Complaint

 

Tentative Ruling: Defendant’s Demurrer To Plaintiff’s Complaint is OVERRULED. Defendant’s Motion to Strike Plaintiff’s Complaint is DENIED.

 

A.    Background

 

Procedural Background –

            Orlando Garcia (“Plaintiff”) filed suit against Esperanza Molina (“Defendant”) in her individual and representative capacity as Trustee of the Esperanza Molina Revocable Trust – 1995, alleging two causes of action: (1) Violation of the Unruh Civil Rights Act (“Unruh”) and (2) Violation of the California Disabled Persons Act (“CDPA”). Defendant filed a Demurrer and Motion to Strike the Complaint. Plaintiff opposes both.

Factual Background –

            Plaintiff is a high-frequency litigant as defined by CCP § 425.55, and an ADA advocate and tester. (Complaint, ¶ 29.) The suit stems from Plaintiff’s visit to Defendant’s business, Maytag Coin Wash (the “Laundromat”) on November 10, 2022. (Complaint, ¶ 10.) Plaintiff alleges that he visited the Laundromat with the dual intent to avail himself to its services and as a tester to determine if the Laundromat complied with disability access laws. (Id.) Plaintiff, who suffers from cerebral palsy, uses a wheelchair for mobility, and upon entering Defendant’s business and availing himself to services of the Laundromat, Plaintiff alleges that he encountered the following conditions which were not compliant with the Americans with Disabilities Act (ADA):

·         The common area sink in the Laundromat had a cabinet style that did not provide any knee clearance.

·         The entrance door hardware had a pull bar style handle that required tight grasping to operate.

·         The operable parts on the change machines were too high.

(Complaint, ¶¶  1, 13.)

 

Additionally, Plaintiff observed, but did not encounter the following:

 

·         The operable parts on the vending machines are too high.

·         The tables/counters used to fold clothing are too high.

·         The paper towel and soap dispensers in the Laundromat are too high. Additionally, there is no clear floor space in front of the paper towel and soap dispensers.

(Complaint, ¶ 21.)

 

            Plaintiff alleges that the non-compliant conditions are violations of the ADA, Unruh, and the CDPA.      


B.     DISCUSSION –

Meet and Confer –

            “Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) Defendant provides the Declaration of Monica R. Molina which states that the parties conferred telephonically on August 14, 2023 but did not come to an agreement. Nevertheless, the requirements of CCP §§ 430.41(a) and 435.5 are satisfied.        


        I.            Demurrer –

Legal Standard for Demurrer –

            “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

            The question of plaintiff’s ability to prove these allegations is of no concern at the pleadings stage. (See Committee on Children’s Television, Inc. v. General Foods Corp., (1983) 35 Cal.3d 197, 213-214. [“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant’s conduct.”]) 

Analysis for Demurrer –

            Defendant demurs arguing that (1) Plaintiff lacks standing and (2) that Plaintiff fails to allege facts detailing how Plaintiff was injured by Defendant. The Court disagrees on both counts, takes each in turn, and overrules the Demurrer.

Plaintiff has standing –

            Defendant first argues that Plaintiff lacks standing to bring suit, pointing to Angelucci v. Century Supper Club 41 Cal.4th 160, 175, where the Supreme Court of California notes that “In general terms, in order to have standing, the plaintiff must be able to allege injury – that is, some ‘invasion of the plaintiff’s legally protected interests.’” (Id.) Defendant goes on to argue that in the context of anti-discrimination laws like Unruh, only a plaintiff who has actually experienced discrimination in their enjoyment of products or services has standing. (Demurrer, 5:12-15.)

            Here, a definition of “discrimination” is instructive. The ADA provides that “discrimination” includes “…a failure 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” (42 U.S.C. § 12182(b)(2)(A)(ii)) and “…a failure to remove architectural barriers…” (42 U.S.C. § 12182(b)(2)(A)(iv).)

            The Court agrees that only a plaintiff who has experienced discrimination has standing, and that is what Plaintiff here has properly alleged in his Complaint. Plaintiff alleges in his Complaint that he has cerebral palsy, has manual dexterity issues, cannot walk, and uses a wheelchair. (Complaint, ¶ 1.) Plaintiff alleges that “the failure to provide accessible sinks denied Plaintiff full and equal access because the Plaintiff was not able to use the sink without difficulty.” (Complaint, ¶ 15.) Plaintiff additionally had trouble with using the door (Id. at ¶ 16) and using the change machines. (Id. at ¶ 17.) Plaintiff additionally observed issues with the vending machines, work surfaces, and paper towel and soap dispensers, however, Plaintiff did not personally encounter these issues. (Id. at ¶ 21.) Plaintiff has sufficiently alleged an invasion of a legally protected interest, to have fair and equal access to the benefits of a business establishment open to the public. Plaintiff therefore has proper standing.       

 

Plaintiff provides facts meeting the necessary elements for a violation of Title III of the ADA –

            Defendant also demurs arguing that the Complaint lacks facts that detail specifically how Plaintiff was injured by Defendant in the two causes of action. “To prevail on a Title III discrimination claim, plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” (42 U.S.C. §§ 12182(a)-(b). Also see Molski v. M.J. Cable, Inc., (2007) 481 F.3d 724, 730.) Plaintiff notes that the third element is met if there is a violation of applicable accessibility standards. (Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 847.) Defendant does not address whether any of Plaintiff’s named violations are ones that are not able to be remedied to comply with the ADA. But Plaintiff alleges they are, and the Court applies the general policy of liberality regarding reading pleadings. (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1141.)

             

            Plaintiff has sufficiently alleged the elements of an ADA claim. Plaintiff lives with physical disabilities including suffering from Cerebral Palsy. (Complaint, ¶ 1.) Plaintiff cannot walk and uses a wheelchair for mobility. (Id.) The ADA defines disability as “a physical or mental impairment that substantially limits one or mor major life activities of such individual…” (42 U.S.C. § 12102(1)(A)). Plaintiff alleges that Defendant is the owner of the Laundromat, a business that provides laundry services to the public. (Complaint, ¶¶ 4-5.) Finally, Plaintiff alleges that when he visited the Laundromat, the sink had a cabinet style that did not provide knee clearance for an individual in a wheelchair, the door hardware had a pull bar style handle that was difficult for Plaintiff to operate, and the change machines were too high for Plaintiff to reach without difficulty. (Complaint, ¶¶ 13-17.) Under Civil Code § 51(f) (Unruh), a violation of the ADA also constitutes a violation of Unruh. Additionally, under Cal. Civ. Code § 54.1(d) (the CDPA), a violation of the ADA also constitutes a violation of the CDPA. Therefore, Plaintiff’s first and second causes of action withstand demurrer, and Defendant’s Demurrer is overruled.               

 

Motion to Strike -

Legal Standard for Motion to Strike –

            The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)

            A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. (CCP § 436)

 

Analysis for Motion to Strike –

            Defendant bases her Motion to Strike on two arguments. First, that Plaintiff failed to meet the pleading requirements for high-frequency litigants under CCP § 425.50(a)(4)(A). And second, that Plaintiff is not automatically granted standing under the ADA as a tester. The Court disagrees with both arguments and will deny the Motion to Strike.

            Plaintiff’s Complaint contains all the facts required for a high frequency litigation to allege under CCP § 425.50(a)(4)(A). Plaintiff states that he is in fact a high-frequency litigant (Complaint, ¶ 29), and that in the prior 12 months preceding this Complaint he has filed 546 lawsuits alleging violations of construction-related accessibility standards. (Id. at ¶ 30.) Per CCP § 425.50(a)(4)(A)(iii), the Complaint states that Plaintiff was in the geographic area to conduct constitutionally protected tester activities. (Id. at ¶ 31.) Finally, the Complaint states that the reason Plaintiff desired access to the Defendant’s business was to use the services in the same manner as any other patron. (Id. at ¶ 32.) 

            Defendant’s second argument regarding standing has been addressed above. Moreover, Plaintiff’s standing is not entirely based on his status as a tester. Separately, Plaintiff demonstrates standing as an individual who has properly alleged an invasion of a legally protected right. He has suffered an injury in fact, the injury is connected to the Defendant’s act or omission, and the injury can be redressed with a favorable decision. To conclude, the Motion to Strike is denied.  

C.    CONCLUSION -

            Accordingly, Defendant’s Demurrer To Plaintiff’s Complaint is OVERRULED. Defendant’s Motion to Strike Plaintiff’s Complaint is DENIED.