Judge Mark A. Young, Case Number: 23SMCV01495, Date: 2023-12-12 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV01495, Date: 2023-12-12 Tentative Ruling

Case Number: 23SMCV01495 Hearing Date: December 12, 2023 Dept: M

CASE NO.: 23SMCV01495

MOTION: Demurrer to the Complaint

HEARING DATE: 12/12/2023

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Analysis

Defendant Penz LLC demurs to the entirety of the complaint on the grounds that Plaintiff fails to state a claim for relief under the Unruh Civil Rights Act (Civ. Code §§ 51-53) or the California Disabled Persons Act (Civ. Code § 54). The Unruh Act is a public accommodations statute that focuses on discriminatory behavior by business establishments. (Civil Code § 51(b); Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1452.) The Unruh Act provides that all persons in California are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever, “no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status…” (Civ. Code, § 51(b); see also § 54.1 [entitling disabled individuals to full and equal access to public accommodations].) Anyone who “denies, aids or incites a denial, or makes any discrimination or distinction contrary to [Unruh]” is liable for damages and penalties.¿(Civ. Code,¿§§ 52(a); 54.3.)

Generally, a plaintiff seeking to establish a case under Unruh Act must plead intentional discrimination in public accommodations in violation of the terms of the Act. (Harris v. Capital Growth Investors XIV¿(1991) 52 Cal.3d 1142, 1175.) However, there is no requirement to prove intentional discrimination under Unruh provisions incorporating rights under the Americans with Disabilities Act. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661.) Thus, if plaintiff demonstrates a violation of the ADA, plaintiff need not allege intentional discrimination.

The ADA prohibits discrimination against disabilities in the full and equal enjoyment of services, facilities, and accommodations of a place of public accommodation by any person who owns, leases, or operates a place of public accommodation. (42 U.S.C. § 12182(a).) Discrimination under the ADA includes “a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities… where such removal is readily achievable…” and a failure to provide auxiliary aids and services, unless it would result in an undue burden. (42 U.S.C. § 12182(b)(2)(A)(iii), (iv).) Whether a facility provides full and equal access is defined in part by the ADA Accessibility Guidelines. (28 C.F.R. pt. 36, app. A; Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2015) 779 F.3d 1001, 1006.)

Defendant argues that Plaintiff fails to plead his disability and connect that disability to a pled barrier. To the contrary, the complaint alleges that Plaintiff is a physically disabled quadriplegic and uses a wheelchair for mobility. (Compl., ¶ 1.) Defendant operates “Main Squeeze” located in Santa Monica. (¶¶ 2-3.) On February 18, 2023, Plaintiff went to Main Squeeze to avail himself of its goods, services, privileges or advantages, motivated in part to determine if Defendant complied with disability access laws. (¶ 8.) While there, Plaintiff observed that there was “not enough knee and toe clearance under the outdoor dining surfaces”. (¶ 11.) Plaintiff was denied full and equal access because Defendant failed to provide accessible dining surfaces and was therefore unable to eat or drink without difficulty. (¶¶ 13.) Plaintiff also pleads throughout the complaint that the accessibility issue also violates the ADA accessibility standards. (¶¶ 10, 12, 14, 26, 30, 33.) The cited barrier is “easily removed without much difficulty or expense” and there are alternative accommodations that could be made to provide a greater level of access. (¶ 19.) These averments provide, in plain terms, that there was a nexus between his disability (being a wheelchair-bound quadriplegic) and the pled barrier (insufficient clearance knee and toe for the wheelchair). Therefore, the required nexus is well pled.

Defendant argues that Plaintiff has not pled compliance with CCP section 425.50. However, the complaint provides each of the statutorily required statements. Plaintiff states that he qualifies as a high-frequency litigant. (¶ 24.) In the preceding year, he filed approximately 421 lawsuits alleging violations of construction-related accessibility standards. (¶ 25.) On February 18, 2023, Plaintiff was in the area, in part, because he was acting as a “tester” visiting businesses “in the same manner as a potential customer” to confirm Defendant’s compliance with accessibility laws. (¶ 26.) “Plaintiff visited the subject business for the purpose of testing facility compliance with accessibility laws with the intention to use the Benefits of the facility in the same manner as a customer.” (¶ 27.) Further, Plaintiff expressly pleads that he had an “intent” to use Defendant’s facilities, including its goods and services. (¶¶ 8, 31.) Thus, the complaint complies with section 425.50.

Defendant argues that Plaintiff does not have standing to bring this suit unless he alleges a genuine intent to patronize the business. Recent caselaw reveals that an Unruh Act plaintiff would need to prove such intent to win their case at trial. (Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 309; see also Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149 [Unruh claims are appropriate where the plaintiff “was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship”].) Defendant points to Plaintiff’s intent to be a “tester.” However, Plaintiff pleads that this was only part of his motivation for going to Main Squeeze. Plaintiff also expressly pleads an “intent” to avail himself of Defendant’s goods and services. (¶¶ 8, 27, 31.) There is no requirement that Plaintiff allege the specific service or good sought, only that he genuinely intended to patronize Defendant. The factual allegations of Plaintiff’s intent meet this requirement and cannot be disputed at the pleading stage.

Finally, Defendant argues that Plaintiff cannot seek injunctive relief because Plaintiff has not alleged a future desire to patronize the Defendant's business. However, a demurrer is only proper when it attacks an entire cause of action. Striking this relief would not defeat an entire cause of action. Therefore, the demurrer to injunctive relief is improper.

Accordingly, the demurrer is OVERRULED.