Judge: Anne Richardson, Case: 23STCV12366, Date: 2023-11-22 Tentative Ruling

Case Number: 23STCV12366    Hearing Date: January 10, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Orlando Garcia sues Defendants Esperanza Molina (in individual and representative capacity as trustee of The Esperanza Molina Revocable Trust - 1995 Executed September 6, 1995) (Molina), Samantha L. Mejia (Mejia), and Does 1 through 50 pursuant to an August 2, 2023 Complaint alleging claims of (1) Violation of the Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53) and (2) Violation of the California Disabled Persons Act (Cal. Civ. Code § 54.1).

The claims arise from allegations that in November 2022, Plaintiff Garcia—an individual suffering from cerebral palsy who cannot walk and uses a wheelchair for mobility—visited Tamales Alberto 2 (the Restaurant), a restaurant located at 1378 Sunset Blvd., Los Angeles, California (the Property). Defendant Molina is alleged to have been the Property’s owner in November 2022 and is alleged as the current owner of the Property. Defendant Mejia is alleged to have been the owner of the Restaurant in November 2022 and is alleged to be the owner of the Restaurant currently. Plaintiff alleges that Defendants violated the Unruh Civil Rights Act (the UCRA) by failing to comply with paths of travel and dining surface standards set out by the Americans with Disability Act (ADA), which has been incorporated into the UCRA. The paths of travel are alleged to have been too narrow, i.e., less than 36 inches in width, which was difficult for Plaintiff Garcia to navigate in a wheelchair, particularly with a curb on one side of the path of travel. The dining surfaces at the Restaurant are alleged to have not had enough toe clearance under the indoor dining surfaces.

On August 2, 2023, Defendants demurred to the Complaint’s two causes of action on sufficiency and uncertainty in pleading grounds.

The demurrer is opposed and now before the Court.

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device 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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Thus, “[t]o survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Uncertainty Legal Standard 

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Complaint, First and Second Cause of Action, Violation of the Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53, 54.1): OVERRULED

The first and second causes of action rely on the same factual pattern to support violations of the UCRA and ADA: The ADA sets out certain standards for paths of travel and dining surfaces in places of public accommodation, like the Restaurant, which were violated by Defendants when, in November 2022, while visiting the Restaurant on the Property, Plaintiff Garcia personally experienced non-compliant paths of travel and dining surfaces, which made it difficult for Plaintiff to navigate his wheelchair and to eat or drink (based on toe clearance). The first cause of action relies on the ADA provisions and their incorporation into Civil Code section 51, subdivision (f), and the second cause of action relies on the ADA provisions and their incorporation into Civil Code section 54.1, subdivision (d). (Complaint, ¶¶ 1-6, 10-18, 32-44, 45-48 [visit in ¶¶ 10-18; ADA provisions in ¶¶ 13, 33; UCRA incorporation statutes in ¶¶ 42, 46].)

In their demurrer, Defendants argue that (1) the paths and dining seats are and were ADA compliant in November 2022, (2) this is a sham pleading because Plaintiff never went to the restaurant, (3) Plaintiff lacks standing to allege the first cause of action because he fails to allege that he experienced discrimination in his enjoyment of services at the Restaurant, (4) the Complaint does not allege a sufficient injury for the first cause of action (though the demurrer provides no specifics as to how injuries were conclusory alleged), and (5) the second cause of action fails for the same reasons as the first cause of action. (Demurrer, pp. 4-8.)

The Court finds in favor of Plaintiff.

Plaintiff argues that the Complaint is sufficiently pled because each of the required factual allegations for Title III of the ADA were made. (Opposition, p. 6.) Moreover, Plaintiff argues that the Complaint addresses each of the requirements under C.C.P. § 425.50(a). The Court agrees. Plaintiff has alleged sufficient ultimate facts to allege that he visited a place of public accommodation and that the paths of travel and dining surfaces at the Restaurant on the Property were not ADA accessible, making it difficult for Plaintiff to use the paths of travel and to eat and drink at the Restaurant, with dining complicated by “toe clearance.” The specific inches alleged in the Complaint regarding the path of travel (36 inches) are supported by ADA Guidelines. (See 2010 ADA Standards for Accessible Design, § 403.5.1 (Sep. 15, 2010) U.S. Department of Justice <https://www.ada.gov/law-and-regs/design-standards/2010-stds/> [as of Nov. 22, 2023].) So are the allegations regarding toe clearance. (2010 ADA Standards for Accessible Design, §§ 306-306.3.5 (Sep. 15, 2010) U.S. Department of Justice <https://www.ada.gov/law-and-regs/design-standards/2010-stds/> [as of Nov. 22, 2023].)

Defendants argue in their reply that (1) Plaintiff lacks standing and (2) Plaintiff attempts to circumvent the standing requirement. (Reply, pp. 2-4.) However, Defendants’ reliance on Martin v. Hotel & Transp. Consultants, Inc., Overlook at Blue Ravine, and Strojnik v. Kapalua Land Co. Ltd. is immaterial because these are unpublished cases. (Reply, pp. 4-6.)

The Court thus finds that the Complaint sufficiently alleges ADA violations and thus sufficiently alleges UCRA violations.

The Court specifically notes that Defendants are not arguing that paths of travel under 36 inches or that dining seats without sufficient knee and toe clearance are not ADA and UCRA violations, but rather, that the evidence will show that (1) the paths of travel and dining seats are ADA compliant and (2) Plaintiff never visited the restaurant. Such arguments are better reserved for evidence-based motions like summary judgment. Here, the Court is limited to the pleadings.

Defendants’ demurrer is thus OVERRULED.

Motion to Strike 

The court may, upon a 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. (Code Civ. Proc., § 436(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. (Id., § 436(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. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Additionally, “[i]n response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that … would result in a reasonable possibility that the defect can be cured.”  (Code Civ. Proc. §435.5, subd. (e).) 

            Here, Defendants argue that the motion to strike the entire Complaint should be granted because Plaintiff is a high frequency litigant and had an improper motive. (Motion to Strike, pp. 4-5.) Plaintiff argues that the Court should deny/overrule Defendants’ Motion to Strike in its entirety or grant Plaintiff leave to amend to cure any such deficiencies. (Opposition, p.8.) Since the Court overruled the Defendants’ demurrer as to all causes of actions, the Complaint in its entirety cannot be stricken. Thus, the Motion to Strike will be denied.

Conclusion

Defendants Esperanza Molina and Samantha L. Mejia’s Demurrer to Complaint is OVERRULED and the Motion to Strike is DENIED.