Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant World Oil Corp. 

 

RESPONDING PARTY: Plaintiff Anthony Bouyer 

 

BACKGROUND 

This action arises from alleged violations of the Unruh Civil Rights Act (“Unruh”).  Plaintiff Anthony Bouyer requires leg braces and uses a walker or 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”).  (Id. ¶8.)   

On May 22, 2023, Plaintiff visited a gas station owned by Defendant World Oil Corp.  (Id. ¶¶2-4, 11.)  During his visit, Plaintiff claims he observed three violations of ADA standards: (1) an accessible parking area whose slope exceeds ADA Accessibility Guidelines (“ADAAG”), (2) an accessible parking space not located on the shortest accessible route leading to the entrance of the business, and (3) lack of accessible route within the site and from site arrival points.  (Id. ¶13.)     

The operative verified complaint alleges a single claim for violation of the Unruh Act.  Plaintiff seeks declaratory relief, injunctive relief, and a statutory minimum of $4000 for each alleged violation of the Act.   

This hearing is on Defendant’s demurrer.  Defendant demurs to the Complaint on grounds it fails to allege (1) in layman’s terms, the barriers Plaintiff claims deny him full and equal access, (2) the way in which the barriers denied Plaintiff full and equal use or access, (3) the number of complaints Plaintiff has filed during the 12 months prior to filing the complaint, (4) the reason Plaintiff was in the geographic area of Defendant’s business, and (5) why Plaintiff chose Defendant’s business over others.   

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.)  

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.”).)  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.) 

DISCUSSION 

Defendant demurs to the complaint on the ground that Plaintiff fails to plead facts sufficient to state a cause of action under the Unruh Act. ¿ The Court agrees.¿ 

A disabled plaintiff has standing to bring a claim under the Unruh Act where he “can show he … actually presented himself … to a business or public place with the intent of purchasing its products or utilizing its services … and was actually denied equal access on a particular occasion.”¿ (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1224.)¿ Furthermore, a plaintiff bringing a construction-related accessibility action must plead facts in his complaint clearly stating the purported access barriers in plain language and explaining how he was denied full and equal access and/or was deterred from revisiting the business in question.¿ (Code Civ. Proc., § 425.50 (a)(2).)¿ 

Here, Plaintiff pleads that he “went to [the gas station] on May 22, 2023 as a customer and purchased items sold at [the gas station].”  (Compl. ¶ 11.)¿ Plaintiff pleads that he encountered certain non-compliant conditions at the gas station.¿ Specifically, Plaintiff pleads there was an accessible parking area whose slope exceeds ADAAG specifications, an accessible parking space not located on the shortest accessible route leading to the entrance of the business, and lack of an accessible route within the site and from site arrival points.  (Id. at ¶ 15.)¿  

The foregoing allegations are insufficient for Plaintiff to plead a cause of action under the Unruh Act because he fails to allege in plain language how these supposed deviations prevented him from availing himself of goods and services at the gas station on the date at issue in his complaint or deterred him from revisiting the gas station.¿ The complaint fails to answer the basic questions of what the slope of the parking space was, the distance of the parking space to the entrance, how there was lack of an accessible route and how each of these alleged violations impeded Plaintiff’s access on the particular date of Plaintiff’s visit.  (See, e.g., Whitaker v. Pan Joes Inv’rs LLC (9th Cir. 2020) 2021 U.S. App. LEXIS 1985 (allegation that plaintiff encountered inaccessible “dining surfaces” at a restaurant and that the restaurant also lacked “accessible restrooms” and “accessible paths of travel in the patio area” were insufficient to state a claim for relief under Title III of the ADA); Whitaker v. Body, Art & Soul Tattoos LA, LLC (9th Cir. 2020) U.S. App.LEXIS 1991) (allegation that tattoo parlor lacked “accessible sales counters” was too vague to state a claim for relief because the “specific deficiencies in the sales counters” were not identified); Whitaker v. Tesla Motor Corp. (9th Cir. 2021) 2021 U.S. App. LEXIS 1953 (allegation that “inaccessible service counters” caused plaintiff “difficulty and discomfort” and deterred him from returning were insufficient to state a claim; complaint “failed to answer the basic questions: Were the service counters too low?  Or too high?  Were they positioned in an area that was inaccessible for another reason?”).) 

Additionally, Plaintiff fails to plead facts explaining why he was in the geographic area of the gas station or why he specifically sought out the gas station’s services, as is required for a high-frequency litigant under Section 425.50.¿ (See Code Civ. Proc., § 425.50 (a)(4)(iii), (iv).)  Plaintiff fails to allege why he chose this particular gas station over dozens of others near his place of residence.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend.       

 

IT IS SO ORDERED. 

 

DATED: October 23, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court