Judge: Deirdre Hill, Case: 22TRCV00324, Date: 2022-08-30 Tentative Ruling

Case Number: 22TRCV00324    Hearing Date: August 30, 2022    Dept: M

Hearing Date:                          August 30, 2022

Moving Parties:                      Defendant Manhattan Place, Inc.

Responding Party:                  Plaintiff James Shayler

Demurrer to Complaint

            The court considered the moving and opposition papers.

RULING

            The demurrer is SUSTAINED WITH 10 DAYS LEAVE TO AMEND as to the 1^st cause of action.

BACKGROUND

            On April 28, 2022, James Shayler filed a complaint against Manhattan Place, Inc. for violations of the Unruh Civil Rights Act, Civil Code §51, et seq.

LEGAL AUTHORITY

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.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendant Manhattan Place, Inc. demurs to the 1^st cause of action for violation of the Unruh Act on the ground that it fails to state sufficient facts to constitute a cause of action and is uncertain, ambiguous, and unintelligible.

The complaint alleges that plaintiff’s musculoskeletal and neurological systems are impaired.  He has multiple levels of diffuse disc bulges and a pinched nerve in his spine that has caused increased pain, sciatica, and limits his ability to function and his mobility.  He is substantially limited in performing one or more major life activities.  He has also had knee replacement surgeries on both knees and limited use of his right arm and hand as a result of an injury on the job years ago.  He qualifies as a member of a protected class under the ADA.  He is the holder of a Disabled Person Parking Placard.  Complaint, ¶1.  Defendant owned the property located at 1121 Artesia Blvd., Manhattan Beach, CA in April 11, 2022 upon which Lindberg Nutrition is located.  Id., ¶2.  Defendant currently owns the property.  Id., ¶3. 

The complaint further alleges that plaintiff is a high frequency litigant.  During the 12 months prior to the filing of the complaint, plaintiff has filed over ten complaints alleging a construction related accessibility claim.  Id., ¶8.  Plaintiff went to the business on April 11, 2022 for the dual purpose of purchasing items and to verify whether defendants were now complying with the ADA and the UCRA.  Id., ¶11.  “Unfortunately, although parking spaces were one of the facilities reserved for patrons, there were no designated parking spaces available for persons with disabilities that complied with the 2010 Americans with Disabilities Act Accessibility Guidelines.  Id., ¶12.  Instead of having architectural barrier free facilities for patrons with disabilities, defendants’ facility had barriers that include:  a. an accessible parking area whose slope exceeds ADAAG specifications (Section 502.4).  Id., ¶13.  Due to architectural barriers in violation of the ADA and ADAAG specifications, the parking, paths of travel, and demarcated accessible spaces at the property, are inaccessible.  Id., ¶14. 

Under the Unruh Civil Rights Act, a plaintiff must establish that (1) defendant denied/aided or incited a denial of full and equal access to the services; and that either (a) the denial was a substantial factor in the harm; or (b) the denial was a violation of the ADA; (2) plaintiff was harmed and the violation was a substantial factor in the harm.  CACI 3060.

Unruh provides that “a violation of the right of any individual under the American with Disabilities Act of 1990 shall constitute a violation of this section.”  Civil Code §51(f).  “A violation of the ADA is, by statutory definition, a violation of both the Unruh Act and the DPA.”  Cullen v. Netflix, Inc. (N.D. Cal. 2012) 880 F. Supp. 3d 1017, 1023.

To establish a cause of action for violation of the ADA, plaintiff must establish:  (i) he is disabled within the meaning of the ADA; (ii) defendant’s property are places of public accommodation; (iii) he was denied full and equal treatment because of his disability; (iv) defendant’s property contains an architectural barrier, and (v) it is readily achievable for the architectural barrier to be removed.  42 USCA 12188(a)(b).  

Under CCP §425.50, “(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:  (1) A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.

(2) The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion. 

(3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which the claimant encountered the specific access barrier, or on which he or she was deterred.

(4)(A) Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:  . . . . (iii) In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendant’s business.  (iv) In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.”

Defendant argues that plaintiff fails to identify the “specific” access barrier or a “plain language explanation of the specific access barrier” or “the specific location of the barrier.”  Defendant also contends that plaintiff failed to identify how and in what specific way in which the barrier denied his full and equal access to the business.

Defendant also argues that as a high frequency litigant, plaintiff failed to allege the reason why he was in the geographic areas of the Business or the Shopping Center and the reason why he desired to access the Business, including the specific commercial, business, personal purpose.

In opposition, plaintiff argues that the allegations are sufficient to meet the elements.

The court finds that the allegations are insufficient as argued by defendant.  Plaintiff fails to allege in compliance with CCP §425.50(a)(1), (2), and (4)(A)(iii), (iv).  Plaintiff has not stated facts sufficient to allow a reasonable person to identify the basis of the violation or violations, including the location of “the access barrier” to the Lindberg Nutrition business which plaintiff seems to allege is an accessible parking area whose slope exceeds ADAAG specifications (Section 502.4).  The complaint is ambiguous as to whether he is alleging any other “access barrier.”  See paras. 12-14, which are insufficient.  Further, he does not allege the “way in which the barrier denied” him full and equal use or access.  He also does not sufficiently allege the reason why he desired to access Lindburg Nutrition, “including the specific commercial, business, personal, social, leisure, recreational, or other purpose.”

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Defendant is ordered to give notice of ruling.