Judge Douglas W. Stern, Case 21STLC08467 2023-01-03 Tentative Ruling

James Shayler vs. B-K La Canada Property, LLC, Case Number: 21STLC08467

Moving Party: B-K La Canada Property, LLC (Defendant) – Motion to Strike

Responding Party: James Shayler (Plaintiff)

This is a case in which Plaintiff is alleging that Defendant’s property did not have sufficient disability accommodations. As part of his prayer for relief, Plaintiff is requesting preliminary and permanent injunctive relief that would require Defendant to have disability accommodations. Defendant has filed a motion to strike on December 6, 2022, alleging that these requests are improper remedies for violations of the Unruh Civil Rights Act. Plaintiff filed an opposition on December 21, 2022, arguing that Defendant’s motion to strike was untimely filed and that the remedies requested were proper. Defendant filed its reply in support of the motion on December 21, 2022.

Plaintiff requests that the Court take judicial notice of a published decision of the Court of Appeal, Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, and nine different Superior Court cases. It is not necessary for the Court to take judicial notice of reported decisions such as this Court of Appeal case. The Court will follow reported cases. The Court declines to take judicial notice of the Superior Court cases.

Defendant requests that the Court take judicial notice of several different documents related to the legislative history of 1998 AB 2702/1998 Chap. 195, which amended Civil Code § 52(g), part of the Unruh Civil Rights Act. The Court declines to take judicial notice of this material.

The Code of Civil Procedure Section 435(b)(1) provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof....” 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. (CCP § 436(b).)

Defendant is requesting that the Court strike the following from Plaintiff’s Complaint:

1. Page 7, lines 27-28: “39. Without injunctive relief, Plaintiff will continue to be unable to fully access Defendants’ facilities in violation of Plaintiffs rights under the ADA.”

2. Page 9, lines 3-8: “1. A Declaratory Judgment that at the commencement of this action Defendants owned, maintained, and/or operated the Business and Property in a manner which discriminates against persons with disabilities, and that Defendant took no action that was reasonably calculated to ensure that its Business and Property are fully accessible to, and independently usable by persons with disabilities in violation of ADA, 42 U.S.C. § 12181 and California’s Unruh Civil Rights Act, California Civil Code§ 51, et seq.

3. Page 9, lines 9-14: “2. A preliminary and permanent injunction enjoining Defendants from further violations of the ADA, 42 U.S.C. § 12181 et seq. as amended by the ADA Amendments Act of 2008 (P.L. 1 I 0-325), and Unruh Civil Rights Act, Civil Code§ 51 et seq. with respect to the Property and its operation of the Business; Note: Plaintiff is not invoking sect ion 55, et seq, of the California Civil Code and is not seeking injunctive relief under the Disabled Person’s Act (Cal. C.C. §54) at all.”

Plaintiff objects to Defendant’s motion to strike on the basis that it was untimely filed and is procedurally defective. The deadline for Defendant to file a responsive pleading has long since passed. Under CCP § 435, the deadline for filing a motion to strike is the time within which a responsive pleading must be filed. Defendant filed its Answer on January 14, 2022. Prior to filing its Answer, Defendant did not file any motions to strike or demurrers. Almost 11 months later, Defendant filed this motion to strike on December 6, 2022, and now appears to be requesting that the Court use its discretion to allow Defendant to strike portions of Plaintiff’s Complaint for being irrelevant or improper. In the interest of resolving disputes regarding the interpretation of the relevant code sections, the Court will use its discretion to review the substance of Defendant’s motion to strike. It is an appropriate issue to resolve. It benefits neither party to have the court refuse on a “procedural ground” to entertain this issue at this time. If the legal position of Defendant is correct, there is no benefit to delaying that determination until trial.

Defendant argues that portions of Plaintiff’s complaint should be stricken because Civil Code § 52 does not allow for the type of injunctive relief requested by Plaintiff.

(c) 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, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:

… (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…

(g) This section does not require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor does this section augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.

The parties’ disagreement hinges on two things. One is the definition of the word “preventative” in § 52(c)(3). The other is the interpretation of § 52(g).

Section 52 does not define “preventive relief”. However, Civil Code § 3368 says: “Preventive relief is given by prohibiting a party from doing that which ought not to be done.” Section 3368 provides the meaning of preventive relief in Section 52. (See, Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. (2005) 130 Cal.App.4th 890, 899 [“if a word or phrase has a particular meaning in one part of a law, we give it the same meaning in other parts of the law. [Citation.]”]; see also, Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 988 [“We must construe identical words in different parts of the same act or in different statutes relating to the same subject matter as having the same meaning”].)

Defendant asserts that it follows then that preventive relief in Section 52 means prohibitory relief as defined by Section 3368. This conclusion also follows from case authority. The Supreme Court has explained, “As a general rule, we think we may say that when the injunction merely grants preventive relief it is prohibitive, but when it directly or indirectly grants affirmative relief it is mandatory.” (Ohaver v. Fenech (1928) 206 Cal. 118, 122.) Additionally, “It has been held an injunction which compels a party to perform some physical act or surrender property is mandatory.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446-447.)

Defendant claims that the type of relief sought by Plaintiff is the physical remediation of Defendant’s property to make it ADA-compliant. Because this would require Defendant to take affirmative remedial steps, this type of relief is mandatory, not preventative, and is therefore not one of the available remedies under § 52(c)(3).

Defendant therefore asserts that Plaintiff cannot request injunctive relief based on this section.

Plaintiff argues in his opposition that Defendant’s interpretation of Section 52(c) is contradicted by Section 52(g). Plaintiff argues that Section 52(g) permits injunctive relief to comply with the relevant ADA standards and guidelines. Defendant argues in its Reply that because Section 52(g) begins by stating that “[t]his section does not require any construction…” then only preventative injunctive relief is allowed. However, Section 52(g) goes on to state that “[t]his section does not require any construction, alteration, repair…beyond that construction, alteration, repair…that is otherwise required by other provisions of law, to any…existing establishment…”

In order for the Court to grant the Motion to Strike, the Court would have to find that the allegation is “irrelevant, false, or improper matter inserted in any pleading” or that it is “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436.)

It appears that Section 52(g) could be interpreted to mean that if Defendant’s business is not compliant with other provisions of law, such as the ADA, then construction, alteration, repair, etc., that is required by other provisions of law could be required as a form of relief.

In Plaintiff’s Complaint, Plaintiff only alleges one cause of action for violations of the Unruh Act. Plaintiff mentions the ADA (Comp. ¶¶ 39 and 44), but Plaintiff does not allege any causes of action for violations of the ADA beyond the allegations contained in Plaintiff’s cause of action for violation of Unruh. However, Plaintiff does ask for a declaratory judgment finding that Defendant was in violation of the ADA as part of his prayer for relief. (Comp., Prayer, ¶ 1.) If declaratory judgment is granted finding Defendant in violation of the ADA, then it is possible that Plaintiff could request the mandatory injunctive relief proposed by Section 52(g).

Accordingly, it does not appear that Plaintiff has pled an irrelevant or improper matter in violation of CCP § 436(a) or anything that should be stricken pursuant to CCP § 436(b). Defendant’s Motion to Strike is DENIED. (This ruling is not a determination that any particular relief sought at trial is or is not appropriate, only that the allegations should not be stricken.)

On December 16, 2022, Plaintiff filed an ex parte application seeking to have his Motion for Sanctions (based on the Defendant’s Motion to Strike) heard at that same time as this Motion to Strike. The Court granted that application and ordered the Motion for Sanctions to be heard on January 3, 2022. Plaintiff failed to file the Motion for Sanctions. Since it was scheduled for January 3, 2023, it is ordered off calendar. Further, the issue raised by the Motion to Strike is not frivolous and does not warrant an award of sanctions. A bona fide issue has properly been raised for resolution by the Court.