TENTATIVE RULING

Defendant Gourmandise Paris Inc.’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendant Gourmandise Paris Inc.’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.

Defendant Gourmandise Paris Inc. shall file and serve an answer to Plaintiff Brian Whitaker’s Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Gourmandise Paris Inc. to give notice. 

REASONING

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

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 a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) 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.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) 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.)

Demurrer

In this action, Plaintiff Brian Whitaker (“Plaintiff”) alleges he is a disabled individual suffering from quadriplegia who uses a wheelchair for mobility. (Compl. ¶ 1.) Plaintiff alleges Defendant Gourmandise Paris, Inc. owned Trattoria Natalie at 8681 West Pico Boulevard in Los Angeles in June 2023. (Compl. ¶ 2.) Plaintiff alleges that he went to Trattoria Natalie on June 7, 2023, and determined there was not enough toe clearance under the outside dining surfaces in violation of the Americans with Disabilities Act (ADA). (Compl. ¶¶ 8-11.) Plaintiff alleges he “is currently deterred from returning to [Trattoria Natalie] due to knowledge of the existing barriers and uncertainty about the existence of yet other barriers on the site,” “[i]f the barriers are not removed, [] Plaintiff will face unlawful and discriminatory barriers again,” and “Plaintiff will return to [Trattoria Natalie] after the conclusion of the case to avail himself of its benefits and to confirm compliance with the disability access laws once it is represented to him that the Restaurant and its facilities are accessible.” (Compl. ¶ 22.)

“A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA ([Civ. Code] § 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination.” (Martinez v. San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1059.) Civil Code section 54.1 provides that individuals with disabilities are entitled to full and equal access of the same places to which the general public is invited, and a violation of the ADA also constitutes a violation of this section. (Civ. Code, § 54.1, subds. (a), (d).) To state a violation of the ADA, “a plaintiff must show: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” (Payan v. Los Angeles Community College District (9th Cir. 2021) 11 F.4th 729, 737, quotation marks omitted.)

Defendant demurs to Plaintiff’s claims first by arguing that Plaintiff has not alleged standing to bring this action. This is not well taken. Plaintiff alleges that he “is substantially limited in his ability to walk,” “suffers from a C-4 spinal cord injury,” “is a quadriplegic,” “uses a wheelchair for mobility,” and went to Natalie Trattoria on June 7, 2023, “with the intention to avail himself of its good, services, privileges, or advantages,” in part to determine whether it complied with disability access laws. (Compl. ¶¶ 1, 8.) Plaintiff also alleges that he “is currently deterred from returning to [Trattoria Natalie] due to knowledge of the existing barriers and uncertainty about the existence of yet other barriers on the site,” “[i]f the barriers are not removed, [] Plaintiff will face unlawful and discriminatory barriers again,” and “Plaintiff will return to [Trattoria Natalie] after the conclusion of the case to avail himself of its benefits and to confirm compliance with the disability access laws once it is represented to him that the Restaurant and its facilities are accessible.” (Compl. ¶ 22.) These allegations sufficiently allege standing to bring this claim.

Defendant also alleges that Plaintiff fails to allege that he was actually denied rights by Defendant because he only intended to patronize the restaurant, and he did not actually patronize the restaurant. Put simply, whether Plaintiff has suffered damages in this regard or was denied access is a matter of fact for the jury’s determination. Defendant also contends that Plaintiff was required to comply with Civil Code section 55.3, but there is no requirement that this be alleged in a complaint, i.e., any compliance with statute is a matter of fact to be considered with the submission of evidence. Accordingly, Defendant Gourmandise Paris Inc.’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Motion to Strike

Defendants moves to strike the prayer of the complaint insofar as it seeks damages under the California Disabled Persons Act, and the paragraphs of the prayer seeking injunctive relief. First, Defendant seeks to strike only a portion of the prayer in paragraph 4 insofar as it seeks damages, and the Court will not strike a portion of the prayer given it seeks damages under different statutes with the use of the word “or” to indicate alternative bases. As to injunctive relief, Defendant cites no law to support a conclusion that injunctive relief is improper under the facts alleged, and there is no basis to conclude the relief sought is vague and ambiguous, as Plaintiff has sufficiently alleged claims, as stated above. Accordingly, Defendant Gourmandise Paris Inc.’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.