Judge Lynette Gridiron Winston, Case Number: 22PSCV01316, Date: 2023-09-29 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01316, Date: 2023-09-29 Tentative Ruling

Case Number: 22PSCV01316 Hearing Date: September 29, 2023 Dept: 6

CASE NAME: Rebecca Castillo v. Indarra LLC.

Defendant Indarra LLC’s Motion to Strike Plaintiff Rebecca Castillo’s Complaint

TENTATIVE RULING
The Court DENIES the motion to strike.

The Court orders Defendant to file an Answer to the Complaint within ten calendar days of this order.

Plaintiff is ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.

BACKGROUND
This is an ADA/Unruh Civil Rights Act case. On October 17, 2022, Plaintiff Rebecca Castillo (Plaintiff) filed this action against Defendant Indarra LLC (Defendant) and Does 1 to 10, alleging one cause of action for violations of the Unruh Civil Rights Act.

On March 23, 2023, Defendant filed the instant motion to strike. On September 7, 2023, Plaintiff opposed the motion. On September 25, 2023, Defendant replied.

LEGAL STANDARD – Motion to Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, 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. (b) Strike 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.” (Id., § 436.)

OBJECTION
The Court OVERRULES Defendant’s evidentiary objections, as the Court does not rely on such evidence in reaching its decision herein.

PRELIMINARY ISSUE
Defendant’s reply was due by September 21, 2023 based on the hearing date of September 29, 2023. (Code Civ. Proc., § 1005, subd. (b).) Defendant’s reply is therefore late. The Court exercises its discretion to still consider the reply, but admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), the parties were required to meet and confer before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds the parties’ efforts to meet and confer to be satisfactory. (Tran Decl., ¶¶ 2-5.)

Analysis
A motion to strike filed under Code of Civil Procedure section 436, subdivision (b) “authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court. [Citation.]” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528, italics in original.)

Defendant seeks to strike the entire Complaint on the grounds that it was not filed in conformity with the law because Plaintiff lacks bona fide intent and standing to sue. (See Code Civ. Proc., § 436, subd. (b).) The Court disagrees.

First, the Court notes that, although not addressed by the parties in their respective papers, Defendant’s motion is not actually a motion to strike under Code of Civil Procedure section 436, subdivision (b). Nowhere in Defendant’s motion does Defendant identify any defects in form or procedure with respect to the Complaint. (See Ferraro, supra, 161 Cal.App.4th at p. 528.) Defendant’s motion instead focuses on the issues of bona fide intent and standing, which go to the substance of the underlying cause of action here. Motions to strike may not be used to attack a cause of action, which is the domain of a demurrer. (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, internal citation omitted.) Defendant’s motion is essentially a general demurrer for failure to state a cause of action. (See Ferraro, supra, at pp. 528-529; Code Civ. Proc., § 430.10, subd. (e).)

Second, even if the Court were to treat this motion to strike as a demurrer, (see Ferraro, supra, at p. 529), it would still fail.[1] The Court agrees with Plaintiff that the case of Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299 does not necessarily support Plaintiff’s position with respect to the issue of bona fide intent, as that case was decided by jury verdict. (Id., at p. 305.) Whether Plaintiff had the requisite bona fide intent for purposes of an Unruh Civil Rights Act claim is a question of fact, not a question of law to be decided at the pleading stage. In Thurston, the Court stated: “For online businesses, the plaintiff must allege that ‘he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services. These requirements are sufficient to limit standing under [the Unruh Civil Rights Act] to persons with a concrete and actual interest that is not merely hypothetical or conjectural.’ Beyond the pleading stage, if a plaintiff wants to prevail on an Unruh Civil Rights Act claim, he or she must present sufficient evidence to overcome the online defendant's argument that he or she ‘did not actually possess a bona fide intent to sign up for or use its services.’” (Id., at 306-307 quoting White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.)

Plaintiff alleges she is visually impaired and encountered accessibility issues when visiting Plaintiff’s website on multiple occasions. (Compl., ¶¶ 1, 37-39.) Plaintiff also alleges she wants to avail herself of Defendant’s goods and services as offered on its website while also testing Defendant’s compliance with the ADA. (Compl., ¶ 9.) The Court finds these allegations sufficient to show Plaintiff has standing to bring this action under the Unruh Civil Rights Act.

Defendant’s contention regarding Plaintiff having filed multiple other ADA/Unruh disability lawsuits is irrelevant here.[2] Having the explicit intent to test whether Defendant’s website complies with ADA requirements is itself sufficient to confer standing. (Thurston, supra, 69 Cal.App.5th at pp. 348-349 [“’a plaintiff has constitutional standing’ even if ‘her only motivation for visiting a facility is to test it for ADA compliance’”, internal citations omitted].)

The Court finds Defendant’s other arguments regarding distance to Plaintiff’s restaurants, lack of other attempts to access Defendant’s restaurants, and the peremptory challenge previously filed unpersuasive. These arguments are either not supported by any legal authority or any binding legal authority,[3] are predicated on a misreading of Thurston as noted above or are entirely speculative based on matters outside the four corners of the Complaint and for which judicial notice was not requested, (see Code Civ. Proc., § 437, subd. (a)). Thus, the Court declines to address them here.

Additionally, Defendant’s contention that Plaintiff did not and could not have suffered an injury here is a reiteration of Defendant’s contention that Plaintiff lacks standing, which argument the Court has already addressed above, and is otherwise an attempt to argue the facts, which is beyond the scope of this motion. Finally, whether Plaintiff is a vexatious litigant is beyond the scope of this motion, as such matters generally require a separately noticed motion and hearing to make such a determination during pending litigation. (See Code Civ. Proc., § 391.1.)

Finally, Defendant’s citation to the Court of Appeal’s recently published opinion in Martin v. Thi E-Commerce, LLC (Cal. Ct. App. September 13, 2023, No. 30-2020-01176205) --- Cal.Rptr.3d ---- is a new argument raised in a reply, which the Court declines to consider. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The proposition for which Defendant cites Martin is not a new argument and could have been raised in Defendant’s moving papers. (See, e.g., Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898; Haynes v. Dunkin' Donuts LLC (11th Cir. 2018) 741 Fed.Appx. 752.) Moreover, in addition to the ADA, Plaintiff also alleges her claim based on intentional discrimination. Defendant’s argument regarding Code of Civil Procedure section 425.50 was also not raised in Defendant’s moving papers, and therefore will not be considered.

Based on the foregoing, the Court DENIES Defendant’s motion to strike.

CONCLUSION
The Court DENIES the motion to strike.

The Court orders Defendant to file an Answer to the Complaint within ten calendar days of this order.

Plaintiff is ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.

[1] The Court notes that if this were a true demurrer, Defendant’s moving papers would also have to have complied with the requirements of Code of Civil Procedure section 430.60 and Rule 3.1320 of the California Rules of Court, among applicable requirements. (See Code Civ. Proc., § 430.60; Cal. Rules of Court, rule 3.1320.)

[2] The list of lawsuits Plaintiff has purportedly been involved in is also not properly before the Court on a demurrer or motion to strike; nor has Defendant requested the Court to take judicial notice of it in a separate document. (Cal. Rules of Court, rule 3.1324, subd. (l).)

[3] Defendant’s citation to Arroyo v. Golbahar (2022) 2022 WL 19199 is unavailing since it is not a California state court decision. (See People v. Beltran (2013) 56 Cal.App.4th 935, 953.)