Judge: Lynette Gridiron Winston, Case: 24PSCV04236, Date: 2025-05-21 Tentative Ruling
Case Number: 24PSCV04236 Hearing Date: May 21, 2025 Dept: 6
CASE NAME: Gabriela Cabrera v. Gregorio Valdes Mangalindan, et al.
Defendants’ Demurrer to Complaint
TENTATIVE RULING
The Court SUSTAINS Defendants’ demurrer to the complaint with 20 days’ leave to amend.
Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is an ADA/Unruh Civil Rights Act case. On December 11, 2024, plaintiff Gabriela Cabrera (Plaintiff) filed this action against defendants Gregorio Valdes Mangalindan, BRB Affiliates, LLC (collectively, Defendants), and Does 1 through 10, alleging causes of action for violations of the Americans with Disabilities Act and violations of the Unruh Civil Rights Act.
On March 20, 2025, Defendants demurred to the complaint. On May 7, 2025, Plaintiff opposed the motion. Defendants did not reply.
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 (Donabedian).) 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. at pp. 993-994.)
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 pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); 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, 1046-1047.)
PRELIMINARY ISSUE
“Each 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).) Defendants’ demurrer violates this requirement, as it combines the grounds for demurrer into one paragraph. (Notice, p. 2.) It is also unclear to the Court why Defendants cite Code of Civil Procedure section 1170, which involves summary proceedings concerning interests in real property. (Ibid.; Code Civ. Proc., § 1170.) The grounds for demurrer are set forth in Code of Civil Procedure section 430.10. (Id., § 430.10.) The Court will still consider the demurrer, but admonishes Defendants to comply with the requirements of the California Rules of Court going forward.
DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Defendants did not provide any declaration required under Code of Civil Procedure section 430.41, subdivision (a)(3), evidencing efforts to meet and confer before bringing this demurrer. (See id., § 430.41, subd. (a)(3).) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Id., § 430.41, subd. (a)(4).) The Court will still consider the demurrer, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward.
Violations of the Americans with Disabilities Act/Unruh Civil Rights Act
To state a claim under the Unruh Civil Rights Act (Unruh) based on a violation of the Americans with Disabilities Act (ADA), a plaintiff must plead a violation of the ADA. (See Civ. Code, § 51, subd. (f); Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.) Specifically, the plaintiff must allege facts demonstrating: (1) the plaintiff is disabled within the meaning of the ADA; (2) the defendant is a private party who owns, leases, or operates a place of public accommodation; and (3) the defendant denied plaintiff public accommodations because of the plaintiff’s disability. (See Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.) A plaintiff asserting an Unruh Act claim based on violations of the ADA is not required to prove intentional discrimination. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670-672.)
“California’s heightened pleading standard for construction-related accessibility claims require a plaintiff to include specific facts concerning the plaintiff's claim, including the specific barriers encountered or how the plaintiff was deterred and each date on which the plaintiff encountered each barrier or was deterred. [Citation.]” (Whitaker v. Mac (C.D. Cal. 2019) 411 F.Supp.3d 1108, 1115 (Whitaker).) “(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following: (1) A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier. (2) The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion. (3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.” (Code Civ. Proc., § 425.50, subd. (a).)
Defendants demur to the complaint for failure to state a cause of action and for uncertainty. Defendants contend the complaint is unclear about what architectural features allegedly do not comply with the ADA, such as floor mats, doors, and paths of travel. Defendants contend Plaintiff needs to identify the architectural parts at issue so that Defendants can accurately respond to the complaint; otherwise, Defendants can only guess what is at issue. Defendants contend Plaintiff makes conclusory allegations regarding remediation and that the complaint does not identify the violations themselves with sufficient detail for Defendants to determine whether change is feasible. Defendants contend paragraphs 53 to 54 are entirely conclusory. Defendants also contend there are no factual allegations supporting the conclusions that Defendants could have remediated those issues.
In opposition, Plaintiff contends the complaint is sufficiently specific. Plaintiff contends she has pleaded specifically that she is paraplegic and therefore disabled, that Defendants owned, operated, or controlled the business located at the subject property, and that Plaintiff encountered barriers and denial of access on the date she visited the subject property. Plaintiff contends the extent of details Defendants seek are unnecessary. Plaintiff contends the complaint adequately alleges causation by linking the barriers to Plaintiff’s access difficulties. Plaintiff contends the complaint adequately alleges readily achievable remediation, and that detailed evidence on what is readily achievable is not required at the pleading stage. Plaintiff contends Defendants’ affirmative defenses are not proper grounds for demurrer because the complaint does not allege that the access barriers predate the ADA or were never altered, but that the complaint instead alleges noncompliance and that removal is readily achievable.
The Court finds the complaint does not allege sufficient facts to state a claim for ADA and Unruh violations. To be clear, the complaint does allege that Plaintiff is paraplegic, and therefore disabled within the meaning of the ADA and Unruh. (Compl., ¶ 2; see 42 U.S.C., § 12102, subds. (1)(A)-(C); Civ. Code, § 51, subd. (e)(1).) The complaint also alleges that Defendants own or control the place of public accommodation at issue. (Compl., ¶¶ 5-9; 42 U.S.C., § 12181, subds. (7)(A)-(L).) The complaint also alleges that Defendants denied Plaintiff public accommodations because of her disability, listing the date of the visit and barriers she purportedly encountered. (Compl., ¶¶ 5, 28-41; Whitaker, supra, 411 F.Supp.3d at p. 1115.)
However, Code of Civil Procedure section 425.50, subdivision (a)(1), requires Plaintiff to also allege facts with sufficient information about the location that allow a reasonable person to locate the alleged barrier. (Code Civ. Proc., § 425.50, subd. (a)(1).) While the complaint alleges a number of barriers, it does not allege facts indicating where they are located. (See Compl., ¶¶ 28-40.) Plaintiff instead alleges things like, “[a] door…,” “[a] path of travel…,” “[a] lack of accessible dining surfaces…,” “[a] sink that has exposed drain pipes…,” or vague references to “dining surfaces.” (Compl., ¶¶ 32, 34-35.) These allegations are insufficient. Plaintiff’s contention that Defendants’ restaurant is a relatively small establishment is not a fact alleged in the complaint, nor does it absolve Plaintiff of the heightened pleading requirements set forth in Code of Civil Procedure section 425.50, subdivision (a). (Opp., 4:1-11; Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error to consider facts argued in memorandum of points and authorities in support of a demurrer]; see Code Civ. Proc., § 425.50, subd. (a).)
Based on the foregoing, the Court SUSTAINS the demurrer with leave to amend.
CONCLUSION
The Court SUSTAINS Defendants’ demurrer to the complaint with 20 days’ leave to amend.
Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.