Judge: John J. Kralik, Case: 22BBCV00377, Date: 2023-03-17 Tentative Ruling

Case Number: 22BBCV00377    Hearing Date: March 17, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Anthony Bouyer (“Plaintiff”) requires the use of leg braces for mobility stability, a walker or wheelchair for mobility, and hand control devices to drive his motor vehicle.  He alleges that on April 30, 2022, he went to The Salsa Bar as a customer, but the restaurant lacked an accessible route for persons with disability.

Plaintiff alleges that Defendants Bassam Mechammil and Maryann Mechammil, individually and as trustees of The Bassam Mechammil Family Trust Date September 25, 2000, owned the property located at 3791 Cahuenga Blvd. in Studio City where the business is located.  Defendant Arash Tabaddor is alleged to own, operate, and control The Salsa Bar business located at the property. 

The first amended complaint (“FAC”), filed on November 28, 2022, alleges a single cause of action for Violation of the California Unruh Civil Rights Act (“UCRA”), California Civil Code, § 51 et seq.

B.     Demurrer on Calendar

On December 28, 2022, Defendants Bassam Mechammil, Maryann Mechammil, and Arash Tabaddor filed a demurrer to the FAC.

The Court is not in receipt of an opposition brief.

DISCUSSION

            Defendants demur to the sole cause of action in the FAC, arguing: (1) the FAC is vague in that Plaintiff (as a high frequency litigant) has not alleged the “barriers” that denied him full and equal access or explained how Plaintiff was/is deterred from revisiting the premises; and (2) why he chose to purchase a beverage from Defendants’ restaurant as opposed to any other similar business offering the same product.

            First, Defendants argue that Plaintiff has not alleged what “barriers” denied him full and equal access to the premises.  In the FAC, Plaintiff alleges that he went to Defendants’ business establishment to purchase a beverage and was in that particular geographical region because he was looking at residential homes in the area.  (FAC, ¶14.)  He alleges that instead of architectural barrier-free facilities, he encountered a parking area with a slope that exceeded the ADAAG specifications and an accessible parking space did not provide for compliant accessible parking signage.  (Id., ¶15.)  He alleges that due to the architectural barriers, the property is inaccessible.  (Id., ¶17.)  Plaintiff alleges that as a result of the barriers related to his disability, he is denied the right to enjoy accessible conditions at public places of accommodation.  (Id., ¶23.)  He alleges that the conditions are necessarily related to his legally recognized disability, wherein Plaintiff is limited in the major life activities of walking, standing, ambulating, sitting, twisting, turning, and grasping objects.  (Id., ¶24.)  Plaintiff alleges that he is in a wheelchair or other mobility device, such that he has a keen interest in whether public accommodations have architectural barriers. (Id., ¶26.) 

            While Plaintiff has alleged in the FAC that there were defects to the property that violated the ADA, Plaintiff has not alleged facts showing how these particular defects (i.e., the sloping of the parking lot and the lack of parking signage) impeded his access to the restaurant.  (Whitaker v. Panama Joes Investors LLC (9th Cir. 2021) 840 Fed.Appx. 961, 964 [“As the district court observed, the complaint did not allege facts identifying the specific deficiencies in the dining surfaces that prevented Whitaker from fully accessing the restaurant. Nor did it describe how the restrooms were inaccessible or which paths of travel in the patio area were inaccessible.”].)  Rather, it appears that Plaintiff somehow managed to make it into The Salsa Bar restaurant and purchase a beverage.  (See FAC, ¶13 [Receipt].)  Further facts should be provided by Plaintiff upon amendment to show how these alleged ADA violations constituted barriers of access to the restaurant.  The demurrer is sustained with leave to amend on this basis.

            Second, Defendant argues that Plaintiff has not alleged facts showing why he chose “this” business to purchase a beverage and not another business that offered the same product.  (Dem. at p.20.)  Defendant has not provided legal authority showing that this is a requirement to establish a claim under UCRA.  Even if it were a necessary element for Plaintiff’s claim, Plaintiff has alleged sufficient facts that he was in the geographical area because he was viewing residential homes near The Salsa Bar.  The demurrer on this basis is overruled.

CONCLUSION AND ORDER

            Defendants Bassam Mechammil, Maryann Mechammil, and Arash Tabaddor’s demurrer to the First Amended Complaint is sustained with 20 days leave to amend.

Defendants shall give notice of this order.