Judge Margaret L. Oldendorf, Case Number: 23AHCV00417, Date: 2023-10-09 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 23AHCV00417, Date: 2023-10-09 Tentative Ruling

This case is an Unruh action based on a violation of the ADA. Plaintiff Brian Whitaker (Whitaker) is an ADA advocate and ADA tester. (1st Am. Compl., ¶ 1.) Whitaker is also a C-4 quadriplegic who uses a wheelchair. (Id.) Defendant Motto Inc. owns and operates Motto Tea Café. (Id., ¶ 2,3.)

On February 16, 2023, Whitaker visited Motto Tea Café with the intent to avail himself of the benefits the café offers. Whitaker asserts that the tables did not allow for adequate clearance of his wheelchair. Because of this, he alleges he was denied equal access.

The motion before the court is Motto’s demurrer to the first amended complaint (FAC), which alleges two causes of action: (1) violation of the Unruh Act; and (2) violation of the California Disabled Persons Act.

On February 27, 2023, Whitaker filed his original complaint against Motto, alleging two causes of action: (1) violation of the Unruh Civil Rights Act; and (2) violation of the California Disabled Persons Act. On April 28, 2023, Whitaker filed his First Amended Complaint (FAC) against Motto, alleging the same two causes of action.

On June 6, 2023, Motto filed this demurrer to the FAC. On September 25, 2023, Whitaker filed an opposition to Motto’s demurrer to the FAC.

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.)

A demurrer is treated as “admitting all material facts properly pleaded,” but not the truth of “contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

Pleadings are to be broadly construed (Code Civ. Proc., §452); and demurrers should be overruled where the facts are sufficient to state any cause of action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.)

Counsel’s declaration regarding meeting with Whitaker’s counsel on April 19, 2023, does not satisfy CCP §¿430.41(a). (Sahelian Decl. ¶ 3.) After counsel met and conferred concerning the original complaint, Whitaker filed a FAC on April 28. Counsel’s declaration does not state an additional meet and confer occurred regarding Motto’s objections to the FAC.

A motion must contain three items: a notice of hearing, the motion, and a memorandum of points and authorities. (CRC § 3.1112(a).)

Here, Motto attached a notice of demurrer and memorandum of points and authorities, but no demurrer.

Each ground for demurrer must be stated in a separate paragraph and state whether the ground applies to the entire complaint or to specified causes of action the complaint alleges. (CRC § 3.1320(a).)

As noted above, no demurrer was filed and the required information is not provided in the accompanying memorandum of points and authorities. The memorandum of points and authorities cites Code of Civil Procedure 430.10(e), which authorizes a demurrer on the ground that the pleading fails to allege facts sufficient to constitute a cause of action. However, the sole argument in the memorandum is that the pleading is vague.

Code of Civil Procedure Section 430.10(f) provides that a demurrer can be based on vagueness or uncertainty. (CCP § 430.10(f).) Demurrers for uncertainty are disfavored, and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

Motto argues that Whitaker’s first cause of action fails because Whitaker fails to allege in simple terms the barriers that denied him equal access. In making this argument, Motto relies on Reycraft v. Lee. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211.) However, Reycraft is an action under the California Disabled Persons Act, and the question in that case involved standing. Reycraft notes that customers who go to a place of business with the intent of patronizing the business, but are then denied equal access, have standing to sue. Whitaker alleges this. (FAC, ¶8.)

Motto also relies on three federal cases to argue vagueness.[1] However, federal pleading standards under 12(b) motions are distinct from state court demurrer standards. Under Code of Civil Procedure Section 452, pleadings are to be broadly construed and demurrers should be overruled when sufficient facts state any cause of action. (CCP § 452; Quelimane Co. v. Stewart Title Guaranty Co. (1989) 19 Cal.4th 26, 38.)

Finally, Motto argues that the pleading does not comply with Code of Civil Procedure Section 425.50 requirements. Section 425.50 requires allegations in construction-related accessibility cases to include a “plain language explanation of the specific access barrier” the individual encountered, the way in which the barrier denied the individual full and equal access, and the date or dates of each occasion the specific barrier deterred the plaintiff. (CCP § 425.50.) When plaintiff is a high frequency litigant, as the plaintiff is here, the pleading must also contain the number of claims the litigant has filed in the prior twelve months, the reason the litigant was in the geographic area of the business, and the reason the individual desired to access the business. (Id.)

Motto urges that the allegations contained in paragraph 8 of the FAC: “Plaintiff went to the Café on February 16, 2023, with the intention to avail himself of its goods, service, privileges or advantages (‘Benefits’) motivated in part to determine if Defendants comply with the disability access laws” are vague. Motto argues that the pleading should elucidate whether Whitaker genuinely intended to patronize the business or only went in order to sue another business. Actual patronage is not required by the statute, however. Under the standard of review for a demurrer, the allegation that Whitaker went to the business with the intention of availing himself of the goods or services offered is accepted as true. This is a sufficient allegation of Whitaker’s reason to patronize Motto Tea Café.

Motto further argues that the allegation that Whitaker “observed or encountered” a physical barrier to his use of an outdoor table is insufficiently vague. This argument implies that Whitaker must specifically allege an actual attempt to use a table and a discovery that he could not use said table. This actual use standard is not supported by any citation to law. The standard for denial of equal access is rather “the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.” (CC § 55.56(b).) So, the statute requires plaintiff to allege personally encountering or being deterred for accessing a place of public accommodation. The pleading here meets this standard.

Lastly, Motto argues that Whitaker needs to provide additional information to substantiate why he was in the area of the cafe. Motto requests information about whether Whitaker drove there, where Whitaker lives, and the distance Whitaker traveled to get to the area. Motto does not cite to any authority supporting this contention. CCP Section 425.50 does not contain this requirement.

Accordingly, the Court OVERRULES the demurrer. Motto is granted 10 days to file an answer. Plaintiff is ordered to give notice of this ruling.

[1] Under California Rules of Court 8.1115, an unpublished opinion may not be relied upon by a party in any action. (CRC § 8.1115.) Here, two of the cases cited are unpublished.