Judge: Mark E. Windham, Case: 22STLC06017, Date: 2023-01-19 Tentative Ruling

Case Number: 22STLC06017    Hearing Date: January 19, 2023    Dept: 26

Hernandez v. Om Foods of Hollywood, Inc., et al.


DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Om Foods Hollywood, Inc. and Dipen Faldu’s Demurrers to the First Amended Complaint are OVERRULED. DEFENDANTS ARE TO FILE AND SERVE ANSWERS TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On September 15, 2022, Plaintiff Joaquin Hernandez (“Plaintiff”) filed the Complaint in this action against Defendants Om Foods Hollywood, Inc. (“Defendant Om Foods”) and Dipen Faldu (“Defendant Faldu”). The Complaint alleges a single cause of action for violation of section 51 of the Unruh Civil Rights Act (“the UCRA”). On November 29, 2022, the Court sustained Defendants’ Demurrers to the Complaint with leave to amend. Plaintiff filed a First Amended Complaint on December 1, 2022. Defendants filed Demurrer to the First Amended Complaint on December 15, 2022. Plaintiff filed s opposition on December 30, 2022 and Defendants replied on December 30, 2022.

Discussion

The First Amended Complaint alleges the following facts. Plaintiff is legally blind. (FAC, ¶2.) At all relevant times, Defendants have operated a restaurant at 11377 Burbank Boulevard, North Hollywood, California. (Id. at ¶3.) Plaintiff patronized the restaurant on August 30, 2022 and informed the public accommodation of his disability. (Id. at ¶4.) Plaintiff told the server, Cesar, that he is legally blind and asked the server to read the burger portion of the menu. (Ibid.) Despite Plaintiff’s request, Cesar simply pointed to the menu and said “it’s right there.” (Ibid.) Neither Cesar nor anyone else offered Plaintiff an alternative menu and he was unable to learn about the menu options available. (Ibid.) By violating 42 U.S.C. § 12182(a), (b)(2)(A)(ii), 28 C.F.R. § 36.302(a), and 28 C.F.R. § 36.303(a), Defendants violated Civil Code section 51, entitling Plaintiff to damages under Civil Code section 52(a) in the amount of $4,000.00. (Id. at ¶5 and Prayer.)

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrers, Schwartz Decl., ¶¶2-3 and Exh. A.) Defendants demur to the First Amended Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subd. (e) and (f).) As with their Demurrers to the Complaint, Defendants again argue that the First Amended Complaint consists of boilerplate and conclusory allegations that do not inform Defendants of the essential facts supporting the cause of action. In opposition, Plaintiff cites to authority for the proposition that operators of a public accommodation must take steps to ensure individuals with disabilities are not denied services because of the absence of auxiliary aids and services and must ensure effective communication with individuals with disabilities. (Citing 28 C.F.R. § 36.303(c)(1); Thurston v. Midvale Corporation (2019) 39 Cal.App.5th 634, 639-640.)

The Demurrers do not address the specific facts added to the First Amended Complaint about Plaintiff’s experience at Defendants’ restaurant. Plaintiff has now included details regarding his interaction with Defendants’ employee, Cesar. These facts demonstrate the manner in which Plaintiff communicated his disability, that Plaintiff requested a certain type of accommodation, that Plaintiff was denied the requested or other type of accommodation, and as a result, Plaintiff was unable to access the services Defendants offered to the public. Defendants’ Demurrers do not analyze the allegations regarding Plaintiff’s conversation and interaction with Cesar to explain why this does not appraise them of the basis of the cause of action. In fact, the facts alleged are sufficient to inform Defendants how Plaintiff was denied services, and that Defendants failed to ensure effective communication due of the absence of auxiliary aids and services.

Conclusion

Therefore, Defendants Om Foods Hollywood, Inc. and Dipen Faldu’s Demurrers to the First Amended Complaint are OVERRULED. DEFENDANTS ARE TO FILE AND SERVE ANSWERS TO THE FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Plaintiff to give notice.