Judge: Frank M. Tavelman, Case: 22BBCV00346, Date: 2022-08-19 Tentative Ruling

Case Number: 22BBCV00346    Hearing Date: August 19, 2022    Dept: A

ALLEGATIONS:

Anthony Bouyer ("Plaintiff") filed suit against Verdugo, Inc., a California Corporation ("Defendant"), alleging that he is substantially limited in performing one or more major life activities.  Plaintiff visited Defendant’s business establishment to purchase items and to verify whether Defendant is complying with the California Unruh Civil Rights Act (“UCRA”) and the Americans with Disabilities Act (“ADA”). Plaintiff alleges that Defendant’s business violated ADA guidelines.

Plaintiff filed a Complaint on May 17, 2022, alleging a single cause of action for Violation of the UCRA, California Civil Code, § 51 et seq.  

HISTORY:

The Court received the Demurrer filed by Defendant on July 20, 2022; the opposition filed by Plaintiff on August 8, 2022; and the untimely reply filed by Defendant on August 15, 2022.

RELIEF REQUESTED:

Defendant appears to demur to the entirety of the Complaint.

ANALYSIS:

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP § 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4) & 435.5(a)(4).)

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Sahelian, ¶¶ 2-4.)

III.       UNTIMELY REPLY

The reply is filed one day late pursuant to CCP § 1005; nonetheless, the Court considers this delay de minimis and will consider all briefs in ruling on the demurrer.

IV.       MERITS

The sole issue before the Court is whether the pleading comports with CCP § 425.50, which provides, in relevant part:

(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:

(1) A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.

(2) The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.

(3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.

(4)

(A) Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:

(i) Whether the complaint is filed by, or on behalf of, a high-frequency litigant.

(ii) In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.

(iii) In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendant’s business.

(iv) In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.

(B) As used in this section “high-frequency litigant” has the same meaning as set forth in subdivision (b) of Section 425.55.

. . .

On review of the Complaint, the Court finds that the pleading sufficiently alleges details concerning the construction-related disability claim required by subsections (a)(1), (a)(2), and (a)(3). Defendant, however, is correct in arguing that the pleading does not fulfill the requirements set forth in CCP §§ 425.50(a)(4)(A)(ii), (iii), and (iv) that Plaintiff state the precise number of construction-related accessibility complaints that he has filed within a 12-month period; that Plaintiff state the reason he was in the geographic area of Defendant’s business; and that Plaintiff state specifically why he desired to access Defendant’s business.

V.        CONCLUSION

The Court thus sustains the demurrer with 20 days’ leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

PARTY'S MOTION came on regularly for hearing on DATE, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED

IT IS SO ORDERED.

DATE:  August 19, 2022                                   _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles