Judge Margaret L. Oldendorf, Case 22AHCV01080 2023-05-08 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22AHCV01080, Date: 2023-05-08 Tentative Ruling

This motion to strike turns on whether a claim under the Unruh Civil Rights Act provides as a remedy mandatory injunctive relief. Remedies for a civil rights violation are set forth in Civ. Code §52 and include in (c)(3), “A request for preventative relief, including an application for permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.”

A violation of the Americans with Disabilities Act (ADA) constitutes a violation of the Unruh Act. Civ. Code §51(f). Here, Orlando Garcia sues for an Unruh violation grounded in ADA violations. He alleges that he suffers from Cerebral Palsy and uses a wheelchair for mobility, making him a member of a protected class of persons under the ADA. His complaint outlines the architectural barriers he encountered when he visited Altadena Ale & Wine House, which is located on real property owned by Francis and Gail Casburn. Garcia alleges that the premises has an unramped step at the entrance; an oval doorknob; lack of clearance under tables; lack of a clear path to the restroom; and several defects in the bathroom itself (including toilet stall too small and no grab bars).

The complaint sets forth two causes of action: Violation of the Unruh Civil Rights Act (Civ. Code §§51-53); and Violation of the California Disabled Persons Act (Civ. Code §54.1, hereinafter the “DPA”). However, Garcia specifically alleges that he is not invoking the provisions of Civ. Code §55; and he is not seeking injunctive relief under the DPA. Complaint at 10:6, fn. 2.

In their motion, Defendants urge that the allegations and prayer for mandatory injunctive relief[1] should be stricken because Garcia’s Unruh Act cause of action only permits “preventative” injunctive relief; and because his DPA cause of action specifically does not seek injunctive relief. To prevail on this motion Defendants must establish that Section 52 does not permit the issuance of a mandatory injunction. While Defendants make a number of well-presented arguments, ultimately the Court is not persuaded they are correct. The motion is therefore denied.

Code Civ. Proc. §436 permits trial courts to strike out any irrelevant, false, or improper matter inserted in a pleading.

The issue before the Court is whether Civ. Code §52(c)(3) allows for the issuance of a mandatory injunction. Defendants’ arguments are addressed in the order they appear in their brief.

In their first argument, Defendants note that Civ. Code §3368 provides: “Preventative relief is given by prohibiting a party from doing what which ought not to be done.” Defendants thus contend that “preventative” and “prohibitive” mean the same thing. Defendants argue that Section 52(c)(3)’s use of the term “preventative relief” means that only prohibitory (and not mandatory) injunctions may issue. This argument has a lot of facial appeal; but it must be rejected, as it does not hold up in the context of the statute as a whole. Even assuming that it did mean that, the argument only goes so far.

The statute at issue here authorizes a court to issue an order preventing (i.e., prohibiting) a defendant from continuing to violate the ADA. This, in effect, could include an order that a defendant take corrective action to eliminate the violation. This is akin to a mandatory injunction. Subsection (c) supports this interpretation. It provides, “Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, … any person aggrieved by the conduct may bring a civil action….”

In other words, when a person is being denied their full rights guaranteed by the Unruh Act, they may bring an action and may seek an injunction preventing the defendant from engaging in the conduct that is resulting in an alleged denial of their rights.

This interpretation is also supported by subsection (g), which provides: “This section “does not require any construction, alteration, repair, structural or otherwise . . . beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law…” Because Section 51(f) specifically provides that an ADA violation is an Unruh Act violation, Section 52(g) may logically be interpreted to mean that certain forms of construction or alteration may be ordered -- but not beyond that which is called for in “other provisions of law” (such as the ADA).

Defendants devote a good deal of time discussing the difference between prohibitory and mandatory injunctions. These distinctions are important for all the reasons they discuss; but the fact is the statute at issue here does not use the word prohibitory. The Legislature could have used the word prohibitory instead of preventative. Perhaps the word preventative was used because of its broader meaning, namely, to prevent continued discriminatory conduct. In any event, the Court declines to find that the word “preventative” in Section 52(c)(3) is the equivalent of “prohibitory.”

Defendants urge that Section 52(g) supports their interpretation. As expressed above, the Court views it differently. Nevertheless, this argument is addressed further here:

Defendants make the point that Section 52(g) does not make any reference to injunctive relief at all. To the extent the language “beyond . . . that is otherwise required by other provisions of law” could be construed as authorizing injunctive relief, Defendants argue that the Legislative history indicates the contrary.[2]

“This language was added when the Act was amended to reference the requirements of the Americans with Disabilities Act. It was intended to indicate that the Unruh Act itself imposed no additional requirements for construction or alteration of facilities beyond those required by other laws. However, some have misinterpreted this language to mean that under no circumstances are entities required to make structural alterations. The bill

simply clarifies that while the Unruh Act itself does not require construction or alteration to any facility, building, etc., such construction or alteration may still be required by other provisions of law.” (Underlining in original.)

Defendants take the position that this means the Unruh Act does not require any construction, alteration, or repair; but that such a limitation does not apply to other laws such as Section 55, which broadly permits injunctive relief. Memorandum of Points and Authorities at 9:9-12. This interpretation is too narrow. The quoted language from the Legislative history explains that, when the Unruh Act was amended to reference ADA requirements, it imposed no additional construction requirements beyond those already imposed by other laws, such as the ADA (or, as Defendants point out, Civil Code Section 55).

While the Unruh Act itself does not contain any specific construction or alteration requirements, it does make it clear that violations of the ADA also constitute an Unruh Act violation (§51(f)); and provides for “preventive” injunctive relief where a party’s conduct denies enjoyment of those rights (§52(c)(3)).

In conclusion, the Court interprets Section 52(g) as an effort by the Legislature to clarify that no new or additional construction or alteration requirements are being imposed.

Finally, Defendants argue that ADA procedural law cannot be imposed on the states. Memorandum of Points and Authorities at 10:9-10 (citing Jankey v. Lee (2012) 55 Cal.4th 1038, 1049). This argument is grounded in Defendants’ position that Section 52 does not permit orders to remediate an affected property. As analyzed above, however, Defendants failed to establish that is so. There is no need to reach this last point.

Plaintiff requests that the Court take judicial notice of the rulings of several other trial courts in Los Angeles Superior Court. With their reply brief, Defendants request judicial notice of other trial court rulings. While judicial notice may technically be taken of the records of any court pursuant to Evid. Code §452(d), that is the extent of it. Judicial notice cannot be taken of the content of the orders themselves. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1566. In addition, these unpublished trial court orders have no precedential value, and should not be cited or relied upon by any court or party. See Cal. Rule of Court 8.1115(a). Judicial notice of these orders is therefore denied.

The parties also take differing views as to the applicability of the Second District’s opinion in Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634. Garcia is correct that Thurston is an Unruh Act case in which an injunction requiring a defendant to do something (i.e., a mandatory injunction) was ordered by the trial court. The defendant was required to make its website compliant with non-governmental guidelines so that blind persons could use it. But Defendants are also correct that, in challenging the injunction on appeal, the appellant failed to cite to or discuss any cases concerning the requirements for an injunction under the Unruh Act. Id. at 652. In the absence of any authority, the Second District affirmed the injunction, citing the Supreme Court’s language in White v. Square, Inc. (2019) 7 Cal.5th 1019 about the “broad preventative and remedial purposes of the act.” Thus, while Thurston does not directly address the issue posed by this motion, it does implicitly support the view that Section 52 authorizes a mandatory injunction.

Defendants’ motion to strike is denied. Defendants are granted 10 days to answer.

[1] Specifically, Defendants seek to strike ¶9 of the Complaint and ¶¶1-3 of the prayer.

[2]Defendants’ request for judicial notice of that history (made in connection with its moving and reply briefs) is granted. People v. Superior Court (2005) 132 Cal.App.4th 1525, 1532.