Judge Anne Hwang, Case Number: 22STCV17326, Date: 2024-04-26 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On May 25, 2022, Plaintiff Kysean Ferreira (“Plaintiff”), a minor through his guardian ad litem, filed a complaint against Long Beach Unified School District, Shayon Stamper Virginia Divers, Jason Heesch, Saul Hernandez, and Does 1 to 20.

On July 28, 2022, Long Beach Unified School District filed a notice of removal to federal court. According to the federal court docket for this case, the parties stipulated to dismiss Plaintiff’s federal cause of action and Judge Josephine L. Staton ordered Plaintiff to file an amended pleading. (See (Notice of Remand, filed 3/6/23, page 6.) On February 24, 2023, Plaintiff filed a second amended complaint (“SAC”).

On February 27, 2023, the action was remanded to the Superior Court. (Notice of Remand, filed 3/6/23.)

Long Beach Unified School District (“District”) now moves for judgment on the pleadings against the third cause of action for a violation of the Unruh Civil Rights Act. No opposition has been filed.

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

i.The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

ii.The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) Here, the Declaration of Amy A. Evenstad states that she attempted to discuss this matter over the telephone with Plaintiff’s counsel but was unable to do so. (Evenstad Decl. ¶ 5.) District’s counsel also sent a meet and confer email but does not indicate if Plaintiff responded. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (Code Civ. Proc. § 439(a)(4).)

As an initial matter, even though this motion was brought after 30 days from the initial trial date of November 22, 2023, the Court will permit the motion.[1]

Second, the Court notes that the operative SAC is not contained in the instant Court’s record since it was filed when this action was in federal court. Nevertheless, District provides a copy of the purported SAC attached to this motion. Additionally, the case number located on the SAC matches the federal court case number.

The Court on its own takes judicial notice of Plaintiff’s second amended complaint attached as Exhibit A, filed in federal court on February 24, 2023. (Evid. Code § 452(d).)

Here, District argues that third cause of action for a violation of the Unruh Civil Rights Act fails to state a cause of action as a matter of law.

The Unruh Civil Rights Act states: “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.” (Civ. Code, § 51, subd. (b); see Civ. Code, § 52.).) The essential elements of a cause of action for the violation of the Unruh Act are: (1) defendant denied, aided or incited a denial of, discriminated, or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, or services to plaintiff; (2) a substantial motivating reason for defendant’s conduct was its perception of plaintiff’s sex, race, color, religion, ancestry, national origin, disability, medical condition, or other actionable characteristic; (3) plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

In Brennon B. v. Superior Court, the Supreme Court of California reasoned that “[t]he purpose and legislative history of the Unruh Civil Rights Act—and its predecessor statute—make clear that the focus of the Act is the conduct of¿private business establishments.” (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 675 [emphasis in original].) Therefore, the Unruh Civil Rights Act only applies where an entity’s “activities reasonably could be found to constitute a business establishment.” (Brennon B., supra, 13 Cal.5th at 678 [quoting Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 615].) In Brennan B., the Court determined that a public school district was not a “business establishment” under section 51(b). (Brennon B., supra, 13 Cal.5th at 678, 684 [“While the phrase ‘all business establishments of every kind whatsoever’ must be interpreted as broadly as reasonably possible, its scope remains limited to entities acting as private business establishments.”].)[2]

Here, the SAC alleges that District “is a governmental entity, that formed, controlled and administered the schools, administrators, teachers, community services officers and other employees within the City of Long Beach, California.” (SAC ¶ 2.) The SAC also alleges District is liable as a public entity under Government Code section 815.6. (Id. ¶ 13.) Plaintiff does not allege facts that District is a “business establishment” under the Unruh Civil Rights Act. Given these allegations, and the holding of Brennan B. discussed above, the third cause of action fails to state sufficient facts.

Plaintiff has the burden to show that the pleading can be amended. Since Plaintiff does not oppose, the motion for judgment on the pleadings is granted without leave to amend.

Accordingly, Defendant Long Beach Unified School District’s motion for judgment on the pleadings on Plaintiff’s third cause of action, is GRANTED without leave to amend.

Long Beach Unified School District shall give notice of the Court’s order and file a proof of service of such.

[1] Under the Code of Civil Procedure, a motion for judgment on the pleadings may not be made “if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc. § 438(e) [emphasis added].)

[2] “The statutory text of the Act, its purpose and history, and our prior case law all indicate that public schools, as governmental entities engaged in the provision of a free and public education, are not ‘business establishments’ within the meaning of the Act. (Civ. Code, § 51, subd. (b).) To the contrary, they make clear that the Act was not enacted to reach this type of state action.” (Brennon B., supra, 13 Cal.5th at 669.)

DEPT:	32
HEARING DATE:	April 26, 2024
CASE NUMBER:	22STCV17326
MOTIONS:	Motion for Judgment on the Pleadings
MOVING PARTY:	Defendant Long Beach Unified School District
OPPOSING PARTY:	None