Judge Katherine Chilton, Case 22STLC03794 2022-08-24 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC03794, Date: 2022-08-24 Tentative Ruling

Case Number: 22STLC03794 Hearing Date: August 24, 2022 Dept: 25

PROCEEDINGS: DEMURRER

MOVING PARTY: Defendant Hillstone Restaurant Group

RESP. PARTY: Plaintiff Joaquin Hernandez

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

Defendant Hillstone Restaurant Group’s DEMURRER to the Complaint is OVERRULED.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 22, 2022. [ ] Late [ ] None

REPLY: Filed on August 17, 2022. [ ] Late [ ] None

ANALYSIS:

I. Background

On June 6, 2022, Plaintiff Joaquin Hernandez (“Plaintiff”) filed an action against Defendant Hillstone Restaurant Group (“Defendant”) for violation of the Unruh Civil Rights Act, Civil Code § 51. The action arose out of alleged refusal of Defendant’s employee to provide reasonable accommodations for Plaintiff’s disability.

On July 20, 2022, Defendant filed the instant Demurrer to Plaintiff’s Complaint. On July 22, 2022, Plaintiff filed an Opposition to the Demurrer. Defendant filed a Reply on August 17, 2022.

II. Judicial Notice

Defendant filed a Request for Judicial Notice as to an order in Los Angeles Superior Court case Gomez v. STK Wood, LLC, Case No. 21STLC04226. (See 9-15-21 Order.) According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and facts or propositions of common knowledge, among other matters. Assignee seeks judicial notice of an order from the same court where the instant case was filed. As it is not necessary to take judicial notice of this documents, the Court DENIES Defendant’s Request for Judicial Notice.

III. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(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).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

IV. Discussion

A. Meet and Confer Requirement

Defendant’s Counsel Kandice L. Kim has filed a declaration demonstrating her attempts to meet and confer with Plaintiff’s counsel regarding a potential demurrer. (7-2-22 Kim Decl.) On July 2, 2022, defense counsel sent Plaintiff’s counsel an email to discuss the demurrer. (Ibid. at ¶ 2.) She followed up on the email on July 12, 2022, and attorneys for both parties met and conferred telephonically; however, no agreement was reached. (Ibid. at ¶ 2.)

The Court finds the declarations sufficient to satisfy the meet and confer requirement.

B. Violation of the Unruh Civil Rights Act, Civil Code § 51

a. Plaintiff’s Complaint

The Complaint alleges that Plaintiff is legally blind. (Compl. ¶ 2.) On or about November 29, 2021, he went to Defendant’s restaurant at “320 South Arroyo Parkway, Pasadena, CA 91105.” (Ibid. ¶ 3.) He notified the restaurant about his disability, but the Plaintiff’s employee refused his request to read a portion of the menu and Defendant “was unable to learn about the available menu options.” (Ibid. at ¶ 4.). Plaintiff alleges that Defendant violated 42 U.S.C. § 12182(b)(2)(A)(ii), (iii) and 28 C.F.R. §§ 36.302(a), 36.303(a), (c)(1), and thus, violated Civil Code § 51, the Unruh Civil Rights Act. (Ibid. at ¶ 5.) Plaintiff seeks $4,000 in damages in addition to reasonable attorney’s fees and costs. (Compl. p. 2.)

b. Defendant’s Demurrer

Defendant demurs to the Complaint’s cause of action for violation of Unruh Civil Rights Act, Civil Code § 51, for failure to state facts sufficient to constitute a cause of action because Plaintiff has not pleaded any facts showing that he is a resident of California. (Demurrer p. 2.) Defendant argues that the Unruh Civil Rights Act only applies to California residents. (Ibid. at p. 5.) Defendant also demurs on the grounds that the cause of action is uncertain. (Ibid. at p. 2.)

c. Plaintiff’s Opposition to Demurrer

In its Opposition to the Demurrer, Plaintiff argues that “Plaintiff’s claim is not brought under subdivision (b) of Civil Code section 51,” but rather Civil Code § 51(f), which states that “‘[a] violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.’ (Civ. Code, § 51(f).” (Oppos. pp. 3-4.) Furthermore, “Plaintiff did allege that he was within the jurisdiction of California at the time of the incident because he experienced the alleged discrimination personally at Defendant’s California restaurant while he was patronizing it.” (Ibid. at p. 3, citing Compl. ¶¶ 3-4.)

Plaintiff also opposes Defendant’s demurrer for uncertainty, as a demurrer for uncertainty is not permitted in limited civil cases. (Oppos. p. 1.)

d. Defendant’s Reply to Opposition to Demurrer

In its Reply to the Opposition, Defendant argues that Plaintiff has failed to address any of the authority Defendant cited regarding the requirement to plead California residency. (Reply p. 2.) Even if Plaintiff’s action is based on Civil Code § 51(f), “[w]hen construed together, subdivisions (b) and (f) require an Unruh Act plaintiff to plead residency, as the statute expressly applies to persons ‘within the jurisdiction of this state.’ Civ. Code § 51(b).” (Reply pp. 2-3.) Defendant contends that “[t]he requirement for Plaintiff to plead residency is included in the express language of the statute and supported by California and Ninth Circuit authority that Plaintiff failed to address or distinguish.” (Ibid. at p. 3.) Finally, Defendant argues that “[n]or does Plaintiff concede in the Opposition that he resides in California or prove any justification for his failure to plead residency in the Complaint.” (Ibid.)

e. Analysis

Here, the Court only considers Defendant’s demurrer on the basis that Plaintiff’s Complaint does not state sufficient facts to constitute a cause of action for violation of the Unruh Civil Rights Act. Since special demurrers are not allowed in limited jurisdiction civil actions, the Court does not consider Defendant’s Demurrer on the grounds that the Complaint’s cause of action is uncertain. (Code Civ. Proc. § 92(c).)

Plaintiff alleges a single Unruh Civil Rights Act violation cause of action. Specifically, Plaintiff alleges, in pertinent part: (1) that he is legally blind; (2) that Defendants operated a restaurant at 320 South Arroyo Parkway, Pasadena, CA 91105 (the “Restaurant”); (3) that on or about November 29, 2021, Plaintiff went to the Restaurant and appraised its employees of his disability; and (4) that the Restaurant refused Plaintiff’s request that an employee read a portion of the menu to Plaintiff. (Compl., p. 1.)

“California’s Unruh Civil Rights Act provides: ‘All persons within the jurisdiction of this state are free and equal and no matter what their….disability… are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, § 51(b).) A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the Americans with Disabilities Act of 1990 (§ 51(f)); or (2) denial of access to a business establishment based on intentional discrimination. [Citation.]” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.) The Americans with Disabilities Act provides that discrimination by public accommodations includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C. § 12182(b)(2)(A)(iii).) Similarly, 28 C.F.R. § 36.303(a) and (c)(1), require that public accommodations take necessary steps so that no individual is denied access to a public accommodation due to the absence of auxiliary aids and services, and require that a public accommodation to “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” “Auxiliary aids and services” include “effective methods of making visually delivered materials available to individuals with visual impairments.” (42 U.S.C. § 12103(1)(B).) Public accommodations include restaurants, bars, or other establishments serving food or drink. (42 U.S.C. § 12181(7)(B).)

In its Demurrer, Defendant relies on the Court’s reasoning in Gomez v. STK Westwood, Los Angeles Superior Court Case No. 21SLTC04226. In that case, the Court ruled that “by its express terms, the Unruh Civil Rights Act applies to discrimination that occurs in California.” (9-15-21 Order.) The Court sustained Defendant’s demurrer because Plaintiff, who was legally blind, was a resident of Florida, visited the California based restaurant’s website to learn about the restaurant, but was unable to use it because the website was not compatible with accessibility software. (Ibid. at p. 3.) However, in that case “Plaintiff [had] not alleged that he is a resident of California, that he was subject to discrimination in California, or that he is otherwise subject to California’s jurisdiction.” (Ibid. at p. 5.) Defendant also cites to several other cases that find that the discrimination must take place within California’s jurisdiction, such as Keum v. Virgin America, Inc. (N.D. Cal. 2011) 781 F.Supp.2d 944 and Warner v. Tinder, 105 F.Supp.3d 1083 (C.D. Cal. 2015). However, neither of these cases found that California residency is a requirement for a claim of violation of the Unruh Civil Rights Act. In Keum, the court found that plaintiff’s complaint did not allege that the events in question took place in California and therefore dismissed the claim with leave to amend. Similarly, in Warner, the court dismissed the Unruh Act claim because the complaint did not allege that the discrimination took place in California. In contrast, here, plaintiff alleges that the discrimination took place at a restaurant in California. Defendant has incorrectly conflated findings that the discrimination must take place within California’s jurisdiction with a California residency requirement.

Here, the Court finds that Plaintiff has pleaded facts sufficient to constitute a cause of action for violation of the Unruh Civil Rights Act. Although Plaintiff has not pleaded any facts regarding his residency, he has stated that he experienced the discrimination in-person at an establishment in California and was, therefore, “subject to discrimination in California.” Defendant Hillstone Restaurant Group’s Demurrer to the Complaint’s cause of action for violation of the Unruh Civil Rights Act is OVERRULED.

V. Conclusion & Order

For the foregoing reasons, Defendant Hillstone Restaurant’s Demurrer to the Complaint’s cause of action for violation of the Unruh Civil Rights Act is OVERRULED.

Moving party is ordered to give notice.