Judge Deirdre Hill, Case 22TRCV01375 2023-04-11 Tentative Ruling

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The demurrer to the FAC is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. The motion to strike is GRANTED WITH 20 DAYS LEAVE TO AMEND.

On December 1, 2022, plaintiff (self-represented) filed a complaint against Pavilion’s Peninsula Center.

On January 26, 2023, plaintiff filed a FAC against Albertsons Safeway LLC for declaratory relief, injunction, and violation of Unruh.

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer . . . , to the pleading on any one or more of the following grounds: . . . . (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ include ambiguous and unintelligible. . . .” CCP §431.10. 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.

“The court may, upon a motion . . ., or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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(b).

CCP §431.10 states: “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendant The Vons Companies, Inc. (erroneously sued as Albertsons Safeway LLC) demurs to the 1^st, 2^nd, and 3^rd causes of action in the First Amended Complaint (“FAC”) on the grounds that the allegations fail to state sufficient facts to constitute a cause of action and are uncertain.

In the FAC, plaintiff (self-represented) alleges that on May 20, 2022, defendant called the police to force the plaintiff to leave the grocery store. FAC, ¶4. Defendant acted intentionally to discriminate in public accommodations in violation of Unruh Civil Rights Act under Civil Code §51.

The court finds that the FAC is procedurally defective. It does not comply with Cal. Rules of Court, 2.112, which states that “[e]ach separately stated cause of action . . . must specifically state: (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); . . . (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’). The purported causes of action are not numbered or state as to whom they are directed. The FAC is also not on pleading paper (line numbers) as required by Cal. Rules of Court, Rule 2.108. Also, plaintiff filed a separate document entitled “declaration,” that plaintiff contends is part of the FAC, which is improper as the ultimate facts are to be alleged in the FAC, rather than a separately-filed document.

It is unclear as to whether plaintiff is asserting one cause of action for violation of Unruh Act and declaratory and injunctive relief or three causes of action—for declaratory relief, for injunctive relief, and violation of Unruh Act. The court does address each claim separately as defendant has demurred to each “cause of action.”

Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. The action may be brought before any breach occurs of the obligation regarding which the declaration of rights is sought. See CCP § 1060.

A plaintiff’s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.

A plaintiff is not required to label the complaint one for declaratory relief or allege a separate cause of action for declaratory relief. All that is required is that the plaintiff allege facts showing an “actual controversy” exists and request the court to adjudicate the parties’ rights and duties. Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 807. However, declaratory relief should not be used to determine issues that are already fully engaged by other causes of action. Hood v. Superior Court (1995) 33 Cal. App. 4th 319, 324. “’The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.’” California Ins. Guarantee Ass’n v. Superior Court (1991) 231 Cal. App. 3d 1617, 1624 (citation omitted).

“Strictly speaking, a demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief.” Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal. App. 4th 187, 221 [disapproved on other grounds].) Nevertheless, the court may sustain a demurrer to a declaratory relief claim if the complaint fails to allege an actual or present controversy, or that the controversy is not “justiciable.” The court also may sustain a demurrer without leave to amend if it determines that a judicial declaration is not “necessary or proper at the time under all the circumstances.” CCP §1061; DeLaura v. Beckett (2006) 137 Cal. App. 4th 542, 545.

The FAC alleges that an actual controversy exists between plaintiff and defendant as to the application of the Unruh Civil Rights Act and whether defendant’s actions violate the Act. The Act applies to defendant and prohibits defendant’s discriminatory actions. FAC, ¶10. Under the prayer, plaintiff requests a declaratory judgment declaring that the Unruh Civil Rights Act applies and that defendant’s actions violated the Act.

It is unclear as to whether plaintiff is asserting a separate cause of action for “declaratory relief.” In any event, as stated above, declaratory relief should not be used to determine issues that are already fully engaged by other causes of action, which in this case, would be violation of Unruh Act.

Further, a declaratory relief claim is subject to general demurrer where it relates to a substantive claim that is invalid as a matter law. For example, where plaintiff fails to state sufficient facts to support a statutory claim, a general demurrer may be sustained both to the statutory claim and to a claim for declaratory relief that is “wholly derivative” of the proposed statutory claim. Ball v. FleetBoston Fin'l Corp. (2008) 164 Cal. App. 4th 794, 800. As stated below, the allegations of the statutory claim for violation of Unruh Act are insufficient. The declaratory relief claim is wholly derivative of the statutory claim.

In the FAC, plaintiff alleges that unless defendant is restrained by a preliminary and permanent injunction, plaintiff will suffer great and irreparable injury in that anemia may result in death. Plaintiff has no adequate remedy at law as pecuniary damages would not afford adequate relief because amputations are irreversible. FAC, ¶9. Under the prayer, “[d]uring the pendency of this action, a preliminary injunction against Defendant enjoining it from preventing the plaintiff from purchasing food and water” and “[o]n a final hearing, a permanent injunction against Defendant enjoining it from verbal abuse, intimidation, and violence.” Prayer, at ¶¶5-6.

Defendant argues that the allegations are vague because there is no reference to any event or involvement of Vons that has caused plaintiff to suffer anemia.

It does not appear that she is asserting “injunction” as a separate cause of action, but only as a form of relief under a cause of action for violation of Unruh Act. See also Civil Code §52. Injunctive relief is a remedy, and does not by itself constitute a cause of action. See MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal. App. 4th 618, 623.

Defendant is correct that the allegations are vague in the FAC and that defendant cannot reasonably respond. Plaintiff does explain in depth in her declaration as to why she believes that “anemia may result in death” and the involvement of defendant in preventing her from shopping at the grocery store, but the purported ultimate facts are not alleged in the FAC and the separately-filed declaration is not part of the FAC.

The Unruh Civil Rights Act protects free and equal accommodation in business establishments for persons falling within protected classes including disability. Civ. Code §51(b) 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.” 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.

Plaintiff has not alleged facts to meet the elements, including showing that a substantial motivation for defendant’s failure to provide equal accommodation was based on plaintiff’s disability or color. The allegations are conclusory as the court does not consider the separately-filed “declaration” as it is not procedurally a part of the FAC.

Defendant requests that the court strike the words “declaratory relief” and “preliminary and permanent injunction” in the caption of the FAC, para. 9 (preliminary and permanent injunction), prayer at paras. 5 (preliminary injunction), 6 (permanent injunction), and 7 (declaratory relief).

Defendant argues that injunctive relief under Civil Code §52 is only available for intentional discrimination and that the FAC is devoid of facts to support her assertion that defendant discriminated against her on the basis of any protected characteristics or in an unreasonable, arbitrary, or invidious manner. Further, defendant contends, Civil Code §52(c) provides only preventive injunctive relief and does not provide for the type of affirmative or mandatory injunctive relief sought by plaintiff. Also, defendant asserts, plaintiff has not alleged that defendant has prevented her from purchasing food or water at all, much less for a discriminatory reason only that she had been “told by the police department to stop shopping at the grocery store.” Defendant further contends that plaintiff has not alleged any verbal abuse, intimidation, and/or violence by defendant.

Civil Code §52(c) states, “Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, . . . any person aggrieved by the conduct may bring a civil action in the appropriate court. The complaint shall contain the following: . . . (2) The facts pertaining to the conduct. (3) 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.”

The FAC does not allege facts to support injunctive relief as stated under the demurrer. Plaintiff’s separately-filed declaration does assert facts that show defendant’s intentional conduct in preventing plaintiff from shopping at the grocery store but those facts have not been alleged in the FAC.

In light of the ruling on the demurrer, the motion to strike is GRANTED WITH LEAVE TO AMEND.

Defendant argues that that a claim for declaratory relief is improper because plaintiff does not allege any facts to support her claim that an actual controversy exists that requires a judicial declaration. Defendant further argues that such a claim improperly lies to determine identical issues regarding the alleged Unruh violation that can be determined in the underlying claim for same.

In light of the ruling on the demurrer, the motion to strike is GRANTED WITH LEAVE TO AMEND.