Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Federal Express Corporation 

 

RESPONDING PARTY: Plaintiff Brian Whitaker 

 

BACKGROUND 

This action arises from alleged violations of the Unruh Civil Rights Act (“Unruh”) and the California Disabled Persons Act (“DPA”).  Plaintiff Brian Whitaker is a quadriplegic and uses a wheelchair for mobility.  (Compl. ¶1.)  Plaintiff is an ADA tester which is an individual with a disability who visits businesses to determine their compliance with the American Disabilities Act (“ADA”).  (Compl. ¶26).   

On August 19, 2022, Plaintiff visited one of Defendant Federal Express Corporation’s sites located at 4170 Del Rey Ave. Marina Del Rey, California.  During his visit, Plaintiff observed one violation of ADA standards, namely “[t]here was only one handrail that served the ramp from the parking area to the entrance, even though the ramp was longer than 6 feet in length and had a rise that was greater than 6 inches.”  (Compl. ¶13.) 

The operative verified complaint alleges two causes of action: (1) violation of the Unruh Act and (2) violation of the DPA.  Plaintiff seeks injunctive relief, treble actual damages, and a statutory minimum of $4000 (under the Unruh Civil Rights Act) or $1000 (under the DPA) for each alleged violation of each Act.   

This hearing is on FedEx’s demurrer, motion to strike and motion to reclassify to a limited jurisdiction case.  FedEx demurs to Plaintiff’s first cause of action on grounds that Plaintiff cannot seek injunctive relief because he has failed to allege intentional discrimination as required under Cal. Civ. Code § 52 and that Plaintiff is not entitled to affirmative and mandatory injunctive relief because Cal. Civ. Code § 52 only allows for preventive and prohibitive relief.  Defendant also demurs to Plaintiff’s second cause of action to the extent it seeks injunctive relief because Plaintiff has specifically disavowed any claim for injunctive relief pursuant to Cal. Civ. Code § 55 which governs violations of the DPA.  In addition, FedEx moves to strike Plaintiff’s requests for injunctive relief on the same grounds, and absent injunctive relief, FedEx argues the only amount in controversy is for a single statutory violation of $4000 which would require the case to be reclassified as a limited jurisdiction case.    

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer 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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

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

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)  Defendants submit the Declaration of Thomas J. Moran, which adequately shows counsel attempted to meet and confer prior to bringing this demurrer. 

DISCUSSION 

Demurrer 

FedEx demurs against Plaintiff’s request for injunctive relief in its prayer for relief.  But “[a] demurrer cannot be lodged against a¿prayer for relief because a¿demurrer tests the sufficiency of the factual allegations of the complaint rather than¿the relief suggested in the prayer of the complaint.”¿(See¿Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562¿(citing to¿Siciliano v. Fireman's Fund Ins. Co. (1976) 62 Cal.App.3d 745, 751;¿Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. 9¿(the prayer of a complaint is not subject to demurrer).)  Moreover, FedEx’s demurrer does not dispose of an entire cause of action; it will only dispose of one type of remedy (injunctive relief) sought by Plaintiff.  “A demurrer does not lie to only part of a cause of action (or to a particular type of damage or remedy), and a cause will survive demurrer if there are sufficient allegations that might entitle the pleader to relief.”¿Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046;¿PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)  For these reasons, the Court overrules the demurrer.  

Motion to Strike 

FedEx also moves to strike Plaintiff’s requests for injunctive relief.  FedEx argues that Plaintiff is seeking injunctive relief only under Cal. Civ. Code § 52, but that section specifically states that injunctive relief is only available for intentional discrimination and Plaintiff has not alleged intentional discrimination on the part of FedEx.  The Court agrees.   

As FedEx notes, Plaintiff has not filed an ADA claim and expressly disavowed it is seeking injunctive relief under Cal. Civ. Code § 55 (Compl. fn. 2), both of which would have allowed him to seek injunctive relief without a showing of intentional discrimination.  FedEx posits Plaintiff intentionally chose not to file the ADA claim as he did not want the case removed to federal court where he has suffered a string of defeats because federal courts have found that Plaintiff and his counsel fabricated standing to sue in federal court, engaged in an “egregious pattern of bad faith conduct” or at minimum, supplied testimony that was not plausible.  (Motion at 3.)  FedEx also surmises Plaintiff intentionally chose not to file a claim for injunctive relief under Cal. Civ. Code § 55 because that section contains a bilateral fee shifting provision which would entitle a defendant to reimbursement of its fees if it prevails in defending the action.  (Motion at 4.)   

Whatever Plaintiff’s motivations, the only remaining basis he has to seek injunctive relief is under Cal. Civ. Code §52(c) which requires “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[.]” (Emphasis added.)  Plaintiff has not alleged intentional discrimination on the part of FedEx.  Indeed, he has characterized FedEx’s actions as “systematic negligence.”  (Compl. ¶23.)  Violations of ADA standards, without more, do not give rise to a finding of intentional discrimination.  Accordingly, Plaintiff is not entitled to seek injunctive relief under Cal. Civ. Code §52. 

Plaintiff argues that intentional discrimination is found where the defendant intended the architectural configurations that violated the ADA standards.  But that is not what the statute says.  (See People v. Taggart (2019) 31 Cal.App.5th 607, 612 (in construing a statute, “[w]e begin by examining the statute’s words, giving them a plain and commonsense meaning. … When the statutory language is clear and unambiguous, we presume the Legislature meant what it said.”).)  The intention required under §52(c) is the intent “to deny the full exercise of those rights[.]”  In other words, defendant must have intended to discriminate based on disability.  Plaintiff’s citation to Modern Development Co. v. Navigators Inc. Co. (2003) 111 Cal.App.4th 932, 943 is unavailing.  The case does not involve the application of §52(c), but rather addressed the issue of whether a general liability policy provided coverage for injuries allegedly caused by the architectural configuration of a swap meet and the alleged failure to remove architectural barriers.  (Id. at 943-945.)  The court did not interpret the meaning of “intent” in the context of a claim under §52(c).   

Plaintiff next argues that under Munson v. Del Taco (2009) 46 Cal.4th 661, intent is not required to obtain damages under the Unruh Act so requiring it to obtain an injunction would turn Munson into a “dead letter.”  Plaintiff’s argument ignores statutory language.  Damages are authorized under §52(a) which includes no explicit “intent” requirement whereas injunctive relief is authorized under §52(c) which does.  This shows the “intent” requirement in §52(c) was deliberate and not superfluous.  The legislature clearly knew how to draft a law that did not require intentional discrimination but chose not to do so when drafting §52(c).  (See, e.g., People v. Albillar (2010) 51 Cal.4th 47, 56 (“The Legislature clearly knew how to draft language limiting the nature of the [conduct addressed by the statute] and could have included such language had it desired to so limit the [statute’s] reach”].)  Also, the Munson court restricted its holding to claims for damages under §52(a).  (Id. at 670, 678.)  It did not consider the “intent” requirement in 52(c).   

Plaintiff next argues that §55 provides for an injunction without having to prove intentional discrimination and it also has a lower burden of proof.  Therefore, Plaintiff argues it makes no sense to require plaintiffs to go through “additional hoops” to obtain the same injunction under §52(c).  Plaintiff’s argument ignores the differences in the language of §52(c) and §55.  The differences suggest that the legislature was only comfortable allowing the plaintiff to seek an injunction without establishing intent if accompanied by a bilateral fee shifting provision to deter frivolous lawsuits.  Each statutory scheme provides its own safeguard against meritless and abusive litigation: bilateral fees shifting under the CDPA and a showing of intent under the Unruh Act.   

Plaintiff also argues that because courts have held the Unruh Act should be interpreted liberally, that justifies the court eliding the “intent” requirement from §52(c).  But there are limits to the concept of reading statutes liberally, and Plaintiff has not cited to any case that would support violating the rules of statutory construction in furtherance of a liberal interpretation.  Moreover, an “intent” requirement for injunctive relief under the Unruh Act does no injustice to California’s statutory scheme for addressing disability discrimination, given the numerous options available to disabled litigants, each with its own requirements, risks and benefits.                

In addition to arguing that §52(c) requires a showing of intentional discrimination, FedEx also argues that §52(c) provides only preventive injunctive relief.  It does not provide for the type of affirmative or mandatory injunctive relief sought by Plaintiff here.  The Court agrees.   

Cal. Civ. Code 52(c) provides for “[a] request for preventive relief[.]”  Although Cal. Civ. Code §52(c) does not define “preventive relief,” other provisions of the civil code (Cal. Civ. Code §3368) have defined it as “prohibiting a party from doing that which ought not to be done.”  If a word or phrase has a particular meaning in one part of the law, the court will give it the same meaning in other parts of the law.  Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. (2005) 130 Cal.App.4th 890, 899; 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.”).   

The California Supreme Court has explained that “[a]s 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; see also Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446-447 (“[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.”).)   

In this case, Plaintiff seeks mandatory injunctive relief by requiring Defendant to affirmatively alter the property, obtain biennial inspections in perpetuity and implement accessibility policies requiring annual employee training in perpetuity.  (Compl., Prayer ¶¶1-3.) But Cal. Civ. Code 52(c) only allows an injunction for preventive relief and does not permit the affirmative or mandatory injunctions sought by Plaintiff here.  Therefore, the Court will grant a motion to strike Plaintiff’s request for injunctive relief for this additional reason. 

Plaintiff’s main argument against this holding is that the court in Thurston v. Midvale (2019) 39 Cal.App.5th 634 allowed the same injunctive relief Plaintiff is seeking under §52(c)(3).  But the Thurston court was not presented with a question about the scope of “preventive relief” under § 52(c)(3).  In Thurston, the plaintiff sued over an allegedly non-compliant website under the ADA and the Unruh Act.  The defendant did not argue that the proposed injunctive relief was not available under §52(c)(3).  Instead, the defendant argued the plaintiff lacked standing to claim prospective relief because she had not shown she would be harmed in the future.  (Id. at 651.)  The court found the defendant had forfeited this argument by failing to present any applicable authority.  (Id.)     

Plaintiff next argues that adopting Defendant’s interpretation of “preventive relief” would undermine the purpose of the Unruh Act, which Plaintiff claims, is to encourage remediation.  Plaintiff does not cite to any authority for this proposition.  To the extent that such a policy exists, Plaintiff has not shown how the Unruh Act would not still encourage remediation through other sections, including the imposition of monetary damages.         

Plaintiff’s final argument is that the relief he seeks does in fact fall within the scope of “preventive” relief because it prevents Defendant from continuing to discriminate against disabled individuals.  But California courts have consistently interpreted “preventive” as not requiring affirmative action.  Plaintiff’s proposed interpretation would define “preventive” as requiring affirmative action, which is exactly what the legislature decided against by consciously choosing the word “preventive.”   

Notwithstanding, as the foregoing defects may be cured by amendment, the Court will grant Plaintiff leave to amend.  “It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action.”  (CLD Constr. Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-47.) 

Motion to Reclassify 

Defendant moves for an order to reclassify this case to limited civil jurisdiction.  Defendant argues that without a claim for injunctive relief, the only remaining request for relief is for statutory damage of $4,000 which is less than the statutory limit of $25,000 for unlimited civil jurisdiction.  Plaintiff does not address this argument in his Opposition. 

Actions in which the amount in controversy is $25,000 or less are classified as limited jurisdiction cases. (Code Civ. Proc. § 86, subd. (a)(1).)  The court may order a case reclassified as a limited civil case upon finding to a legal certainty that a judgment over $25,000 cannot be obtained.¿ (CCP §§ 396, 403.040(a).)¿¿¿ 

The code requires reclassification “when (i) the absence of jurisdiction is apparent before trial from the complaint, petition, or related documents, or (ii) during the course of pretrial litigation, it becomes clear that the matter will ‘necessarily’ result in a verdict below the superior court jurisdictional amount, and the court affords the parties an opportunity to contest transfer.” (Walker v. Superior Court (1991) 53 Cal.3d 257, 262.)  “This standard requires a high level of certainty that a damage award will not exceed $25,000 and is not satisfied by a finding that such an award is merely ‘unlikely’ or ‘not reasonably probable.’” (Id. at p. 269.) “The [trial] court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount [of the] demand[.]” (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 277); see also Maldonado v. Superior Court of Orange County (1996) 45 Cal.App.4th 397, 402 (“the trial court looks to the possibility of a jurisdictionally appropriate verdict, not to its probability.”)).             

Courts have required an adequate record, but not necessarily competent evidence, in support of transfers to a limited jurisdiction court. (See Stern v. Superior Court (2003) 105 Cal.App.4th 223, 233 (evidence can include the complaint, arbitration awards and a settlement recommendation).)  However, “the party opposing reclassification (from unlimited to limited), to defeat the motion (or oppose the OSC) the party must present evidence to demonstrate a possibility that the verdict will exceed $25,000.” (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 277.)  Without sufficient evidence as to the value of the case, where the allegations of the complaint preclude a finding that the verdict will “necessarily” fall short of the $25,001 jurisdictional requirement, a reclassification order may be an abuse of discretion. (Stern 105 Cal.App.4th at 233.)  Moreover, a motion to reclassify does not involve an evaluation of the merits of the claims. (Id.)¿ 

Plaintiff does not address FedEx’s motion to reclassify.  Plaintiff does not dispute that absent his claim for injunctive relief, the only remaining request for relief is for statutory damage of $4000 which is less than the statutory limit of $25,000 for unlimited civil jurisdiction.  However, given the Court will grant Plaintiff leave to amend, a motion to reclassify is premature, and the Court will, accordingly, deny Defendant’s motion to reclassify without prejudice.   

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendant’s demurrer, GRANTS its motion to strike with leave to amend, and DENIES WITHOUT PREJUDICE its motion to reclassify.  Plaintiff has 20 days leave to amend.   

 

IT IS SO ORDERED. 

 

DATED: February 9, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court