Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from alleged violations of the Unruh Civil Rights Act (“UCRA”).  Plaintiff Lewis Lingsweiler requires a wheelchair or walker for mobility.  Plaintiff visited Detour Bistro and Bar (the “Business”), which is owned and operated by Defendants Michael and Lory Sarlo as trustees of the Atlantis Trust dated November 8, 2007.  Plaintiff alleges the Business’s parking lot was not in compliance with the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”).  The operative first amended complaint (“FAC”) alleges a single claim for violation of the UCRA.  

This hearing is on Defendants’ demurrer and motion to strike.  Defendants argue that a demurrer should be sustained because Plaintiff’s complaint is uncertain and fails to specify how Defendants violated the ADAAG.  Defendants also move to strike the claim for the same reason.  No opposition was filed as of the posting of this tentative ruling.  

LEGAL STANDARD 

A demurrer may be general or special.  A¿special demurrer for uncertainty is “disfavored.”  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  Nevertheless, a demurrer for uncertainty may be sustained “where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A at ¶ 7:84, citing¿Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) 

The role of a general demurrer, on the other hand, is to “test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.)  On a general demurrer, the court must liberally construe the complaint in the plaintiff or cross-complainant's favor.¿(Code Civ. Proc., § 452.)¿ “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)¿ A demurrer “admit[s] all the properly pleaded material facts” and “even the most improbable alleged facts” are accepted as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)  However, the court does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, citations omitted.) 

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 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.”).)  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 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendants submit the Declaration of Graham Ulyshen which shows the parties met and conferred by telephone, as required under §§ 430.41 and 435.5(a).   

DISCUSSION 

Defendants argue the FAC does not state facts sufficient to demonstrate that Defendants violated UCRA.  The Court disagrees. 

The FAC alleges that Defendants violated UCRA because they had an accessible parking area whose slope exceeds ADAAG specifications, cracked and broken surfaces in the accessible parking area, and lack of an accessible route leading from the accessible parking area to the entrance of the Business.  (Compl. ¶14.)  These facts are sufficiently specific to put Defendants on notice of the claims against them.  The complaint is not so bad that Defendants cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them. 

 

Any ambiguities can be clarified through the use of discovery.  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135 (a demurrer for uncertainty is a¿special demurrer that is¿disfavored and strictly construed because “ambiguities can reasonably be clarified under modern rules of¿discovery”).)  Further, demurrers will be overruled where, as here, the facts relating to the parking area are presumptively within the knowledge of the demurring party.  (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  

Accordingly, the Court overrules the demurrer.  As the motion to strike is based on the same grounds as the demurrer, the motion is also denied.   

CONCLUSION 

For the foregoing reasons, the Court OVERRULES the demurrer and DENIES the motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: February 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court