Judge: Frank M. Tavelman, Case: 22BBCV01043, Date: 2023-04-14 Tentative Ruling

Case Number: 22BBCV01043    Hearing Date: April 14, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO STRIKE

ALLEGATIONS: 

On November 21, 2022, Orlando Garcia (“Plaintiff”) filed suit against Lisa S. Marks (“Marks”) and Mohammed Ali Asan (“Asan”) alleging violations of the Unruh Civil Rights Act (“UCRA”) and the California Disabled Persons Act (“CDPA”). Plaintiff alleges these violations occurred in July 2022 at Seven Day Mini Mart located at or about 11150 Burbank Blvd., Los Angeles, California. (Compl. ¶ 4.) Asan is alleged to be the owner of Seven Day Mini Mart. Marks is alleged to be the property owner. (Id. ¶¶ 3,6.) The Complaint contains causes of action for (1) Violation of UCRA, California Civil Code §§ 51-53 and (2) Violation of CDPA, California Civil Code §54.1.

Asan now moves to strike those portions of the Complaint which request injunctive relief.

HISTORY: 

On February 28, 2023, Asan filed this motion to strike portions of Plaintiff’s Complaint. On April 3, 2023, Plaintiff filed his opposition. On April 4, 2023, Asan filed his reply.   

RELIEF REQUESTED:

Asan moves to strike the following portions of the Complaint:

Page 3, lines 4-6: “9. Unlimited jurisdiction is proper because Plaintiff seeks a permanent injunction ordering compliance with state and federal accessibility laws pursuant to the Unruh Civil Rights Act.”

Page 9, lines 11-21: “1. For injunctive relief, compelling Defendants to remove all presently existing architectural barriers as required by the Americans with Disabilities Act and the Unruh Civil Rights Act. 2. For injunctive relief requiring that Defendants obtain biennial Certified Access Specialist (“CASp”) architectural inspections of the subject facility to verify on-going ADA compliance and follow those inspection’s recommendations of all readily achievable barrier removal. 3. For injunctive relief requiring implementation of accessibility policies and requiring annual employee training on providing full and equal access to clients or customers with disabilities.”

REQUEST FOR JUDICIAL NOTICE:

Asan requests the Court take judicial notice of the legislative history for 1998 AB 2702/1998 Chap. 195, which amended Civil Code § 52(g). Asan requests notice pursuant to Evidence Code §§ 450 et. seq. Evidence Code §452(c) permits the Court to take notice of the official acts of the California legislature. The Court grants Asan’s request.

Plaintiff requests the Court take judicial notice of the following:

·       Tentative Court order re: Defendant’s motion to Strike in Garcia v. Mota, Case No: 22AHCV00879;

·       Tentative Ruling in Perry v. Westgate, Case No: 22SMCV0993; and

·       Ruling in Shayler v. B-K Canada Property, LLC Case No: 21STLC08467

Evidence Code §452(d) permits the Court to take notice of records of the courts of the state of California. The Court notes the rulings in Garcia v. Mota  and Perry v. Westgate are only tentative rulings, obtained from their respective court websites. As these are not final rulings, they are not subject to judicial notice as records of the court. Furthermore, Superior Court trial orders are not published opinions and have little persuasive value.  The Court grants Plaintiff’s request as to the ruling in Shayler v. B-K Canada Property, LLC. However, while courts may take judicial notice of court records, the truth of matters asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

ANALYSIS: 

I.                LEGAL STANDARD 

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under Code of Civil Procedure § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike out 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.” (C.C.P. § 436 (b).)

II.              MERITS

Asan argues that Plaintiff’s request for injunctive relief must be stricken because injunctive relief is unavailable to Plaintiff under California Civil Code § 52(c). Asan’s argument is premised on a series of statutory interpretations of the language in Civil Code § 52(c) which reads as follows:

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:

(1)   The signature of the officer, or, in the officer’s absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.

(2)   The facts pertaining to the conduct.

(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.

Asan specifically focuses on the phrase “preventive relief” in his argument. Asan argues that Civil Code § 52(c) does not define preventive relief and thus we must look elsewhere to define it. Asan points to Civil Code §§ 3366 and 3367 which state:

“Specific or preventive relief may be given as provided by the laws of this state.”

“Specific relief is given:

1.     By taking possession of a thing, and delivering it to a claimant;

2.     By compelling a party himself to do that which ought to be done; or

3.     By declaring and determining the rights of parties, otherwise than by an award of damages.”

Asan argues Civil Code §§ 3366 and 3367 create a distinction between injunctive relief which is prohibitory and injunctive relief which requires affirmative action. Asan argues that preventive relief as contemplated in Civil Code § 52(c) is prohibitive and cannot require affirmative action be taken. Asan argues that Plaintiffs requests for physical changes to be made in conformity with the Americans with Disability Act (“ADA”) is not available to Plaintiff. Asan further argues that the language of Civil Code § 52(g) supports his argument. Civil Code § 52(g) reads:

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.

Asan argues this language explicitly prohibits the type of injunctive relief Plaintiff requests.

Plaintiff argues in opposition that California case law clearly indicates injunctive relief requiring corrective action is available to Plaintiff. Plaintiff primarily relies on Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (“Thurston”). Thurston concerned a plaintiff’s claims against a restaurant defendant whose website violated ADA and UCRA. The plaintiff in Thurston sought to enjoin defendant to require the website be made ADA compliant. On appeal, defendant argued that plaintiff did not have standing for such injunctive relief on the grounds plaintiff did not show a prospective future injury. The Court of Appeals disagreed, stating that defendant’s argument was unsupported by existing case law and did not acknowledge the California Supreme Court’s holding that Civil Code § 52 be construed liberally. (Id. at 652.) The Court of Appeals ultimately affirmed the injunction requiring defendant to alter its website to be ADA compliant. (Id. at 655.)

Plaintiff argues Thurston stands for the principle that, under Civil Code §52, a Court may issue an injunction which requires a violating party to take affirmative steps to rectify. Plaintiff further argues Defendant presents no case law in contravention of Thurston.

Asan argues in reply that this case presents a matter of first impression. Assan argues the holding of Thurston is not on point because it does not explicitly address Civil Code § 52(c). The Court finds Asan’s argument unpersuasive. Thurston may not discuss the definition of preventive relief, but its holding stands for the notion that courts can order affirmative action be taken to rectify UCRA violations. To hold otherwise on a series of extrapolated statutory readings would directly contravene the precedent of Thurston. The Court declines to do so.

Thurston makes clear that California Courts have the authority to issue injunctions which require affirmative action be taken to remedy UCRA violations. Asan does not cite to any case law which supports his restrictive reading of Civil Code § 52. The case law on which Asan does rely, Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, does not speak to UCRA and Civil Code § 52. To apply Davenport’s holding regarding mandatory injunctions here would require the Court to assume Asan’s statutory interpretation to be correct. Thurston indicates Asan’s interpretation to be incorrect, thus the holding in Davenport is irrelevant. The case law upon which Asan relies in reply is, attached as Exhibits A and B, are civil court decisions which do not serve as binding precedent. Further, Asan submits no code compliant request for judicial notice with respect to these rulings. California Rules of Court Rule 8.252(a)(1) requires requests for judicial notice be filed separately.

Further, the Court finds the language of Civil Code § 52(g) does not prohibit injunctions requiring affirmative action. The language of Civil Code § 52(g) provides affirmative action cannot be solely required by Civil Code § 52(g) beyond what is otherwise required by law. Here, Plaintiff alleges violations of the ADA which may serve as the basis for injunctive relief independent of Civil Code § 52(g).

The Court finds Plaintiff has properly alleged his claim for injunctive relief. Whether Plaintiff will be able to obtain injunctive relief remains to be seen, but it would be inappropriate to strike these claims from the Complaint. As such, the Motion to Strike is DENIED.

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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 

Mohammad Ali Asan’s Motion to Strike came on regularly for hearing on April 14, 2023, 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 TO STRIKE IS DENIED. 

IT IS SO ORDERED. 

DATE:  April 14, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles