Judge: Lynette Gridiron Winston, Case: 22PSCV02047, Date: 2023-10-02 Tentative Ruling

Case Number: 22PSCV02047    Hearing Date: October 2, 2023    Dept: 6

CASE NAME: Antonio Fernandez v. J & D Liquor, Inc.

Demurrer to First Amended Complaint

TENTATIVE RULING
The Court OVERRULES the demurrer.

The Court ORDERS Defendant to file an Answer to the First Amended Complaint within ten calendar days of the Court’s 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 November 23, 2022, Plaintiff Antonio Fernandez (Plaintiff) filed this action against Defendant J & D Liquor, Inc. (Defendant), alleging two causes of action for violations of the Unruh Civil Rights Act and violations of the California Disabled Persons Act. Following the filing of a demurrer to the original Complaint, Plaintiff filed the operative First Amended Complaint (FAC) on May 23, 2023, alleging the same causes of action against Defendant.

On August 1, 2023, Defendant filed a demurrer to the FAC.[1] On August 17, 2023, Plaintiff opposed the demurrer. No reply has been filed.

LEGAL STANDARD
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

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. (Sahelian Decl., ¶ 3.)

Analysis
Before the Court reaches the substantive arguments of Defendant’s demurrer, the Court will address the procedural defects in the demurrer mentioned in Plaintiff’s opposition. More specifically, Defendant’s demurrer fails to comply with the requirements of Code of Civil Procedure section 430.60 and Rule 3.1320, subdivision (a) of the California Rules of Court. Section 430.60 provides that, “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60.) Rule 3.1320, subdivision (a) provides that, “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320, subd. (a).)

Defendant’s demurrer fails to identify the specific grounds upon which it is based, which necessarily means it also fails to state each ground in a separate paragraph and whether it applies to the entire complaint or a specific cause of action. This is problematic here given that there are two causes of action alleged in the FAC, and the demurrer only appears to address the First Cause of Action for violations of the Unruh Civil Rights Act while saying nothing about the Second Cause of Action for violations of the California Disabled Persons Act. These defects by themselves render the demurrer defective and grounds for the Court to disregard the demurrer.

As to Defendant’s substantive arguments that the FAC fails to state a cause of action under the Unruh Civil Rights Act, the Court finds them unpersuasive. “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336)1 shall also constitute a violation of this section.” (Civ. Code § 51, subd. (f); see also Id., § 54.1, subd. (d) [“A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section, and this section does not limit the access of any person in violation of that act.”]) “To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” (Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc. (9th Cir. 2010) 603 F.3d 666, 670.)

Defendant’s contention that the FAC fails to sufficiently allege the barriers Plaintiff encountered is unavailing, and Defendant cites unpublished federal cases, which are not binding on this Court, to support this contention. (Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1298 fn. 5, internal citations omitted.)

Moreover, “[i]n the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) Plaintiff has alleged that he is disabled in a wheelchair, that he went to Defendant’s establishment to purchase a drink and to test Defendant’s ADA compliance, and that he encountered a barrier while there which involved certain aisles within Defendant’s establishment not being at least 36 inches, and that the very narrow aisles, had limited clear space available for Plaintiff to travel down in his wheelchair to shop and browse the store. (FAC, ¶¶ 1, 8-14.) The Court finds these allegations to be sufficient to state a cause of action under the Unruh Civil Rights Act and the California Disabled Persons Act based on an ADA violation, and provide sufficient notice for Defendant to be able to respond.

With respect to the pleading requirements for a high frequency litigant under Code of Civil Procedure section 425.50, Plaintiff alleges: (1) that he encountered a barrier involving the aisles not being at least 36 inches within Defendant’s establishment; (2) the address and location of Defendant’s establishment where the barrier was allegedly encountered; (3) and the date of the alleged encounter, i.e., July 26, 2022. (FAC, ¶¶ 2-3, 8, 11.) Plaintiff also specifically alleged he is a high frequency litigant, that he has filed 137 ADA lawsuits within the past twelve months, that he was in the area specifically to test ADA compliance and that he specifically intended to use the benefits of Defendant’s establishment. (FAC, ¶¶ 25-28.) Plaintiff alleges that he went to Defendant’s establishment to buy something to drink. (FAC, ¶ 8.) For purposes of the Demurrer, these allegations are taken as true. The Court finds these allegations satisfy the pleading requirements of a high frequency litigant such as Plaintiff.

Finally, the Court also disagrees with Defendant’s contentions regarding Plaintiff’s request for injunctive relief. Injunctive relief is a remedy, which is not subject to demurrer. (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

For these reasons, the Court OVERRULES the Demurrer in its entirety.

CONCLUSION
The Court OVERRULES the demurrer.

The Court ORDERS Defendant to file an Answer to the First Amended Complaint within ten calendar days of the Court’s order.

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

[1] Defendant filed the supporting papers on August 1, 2023, but filed the Notice of Demurrer on August 7, 2023.