Judge: Mark E. Windham, Case: 23STLC07188, Date: 2024-03-26 Tentative Ruling

Case Number: 23STLC07188    Hearing Date: March 26, 2024    Dept: 26

Diaz v. Ronile Partners, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Savo, LLC and John Zapp aka John S. Zapp’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On November 9, 2023, Plaintiff Alejandro Diaz (“Plaintiff”) filed the Complaint in this action against Defendants Ronile Partners, Savo LLC, and John Zapp aka John S. Zapp. The Complaint alleges a single violation of the Unruh Civil Rights Act (“the UCRA”). Defendants Savo, LLC and Zapp filed the instant Demurrer to the Complaint on January 2, 2024. Plaintiff filed an opposition on January 30, 2024 and Defendant replied on February 16, 2024.

Discussion

Plaintiff alleges that he is a quadriplegic. (Compl., ¶1.) Defendants Savo, LLC and Zappa are the lessors or operators of a restaurant at 615 North La Brea Avenue, Los Angeles, California. (Id. at ¶2.)  Plaintiff allegedly had difficulty at the restaurant during a visit on July 21, 2022, because the outdoor dining tables were not wheelchair-accessible and the round bathroom doorknob did not have a shape that was easy to grasp with one hand and required tight grasping, tight pinching, and twisting of the wrist to operate. (Id. at ¶5.) Removing these architectural barriers would be readily achievable. (Id. at ¶6.) The Complaint alleges a single cause of action for violation of Civil Code section 51. (Id. at ¶7.)

Defendants Savo, LLC and Zapp demur to the Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (d).) The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Motion, Jensen Decl., ¶¶2-3.)

The Demurrer is brought pursuant to the pleading requirements set forth at Code of Civil Procedure section 425.50, which require an allegation of construction-related accessibility to provide:

(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.

(Code Civ. Proc., § 425.50, subd. (a).) The two alleged barriers experienced by Plaintiff were the outdoor dining tables and the bathroom doorknob. The Complaint does not provide a plain language explanation of the outdoor table access barrier. It simply alleges that the tables were not wheelchair accessible without describing in what manner they prevented access by wheelchairs. Nor does the Complaint allege how this unspecified wheelchair barrier denied or deterred Plaintiff on the day of his visit.

The access barrier of the bathroom doorknob explains that it was not easy to grasp with one hand and required tight grasping, tight pinching, and twisting of the wrist to operate. However, the Complaint does not allege how this barrier specifically deterred Plaintiff other than to allege “difficulty.” Therefore, neither allegation regarding the tables nor doorknob satisfies both pleading requirements under Code of Civil Procedure section 425.50, subdivision (a).

Moving Defendants also argue that the outdoor tables are not alleged to be elements subject to the Americans with Disabilities Act, and therefore, relevant to a violation of Civil Code section 51. Specifically, “[t]he 1991 Standards and the 2010 Standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site.” (28 CFR, §§ 35.151(d), 36.406.) Plaintiff responds that case law holds that moveable objects can be barriers, however, the case law cited discusses objects such as tables, chairs, and display shelves in terms of creating accessible pathways. (Californians for Disability Rights v. Mervyn’s LLC (2008) 165 Cal.App.4th 571, 589.) Plaintiff does not cite case law that specifically applies the ADA Standards to a moveable object in and of itself. Plaintiff, therefore, must allege facts showing how the outdoor tables at Defendants’ restaurants fall under the ADA Standards.

Based on the foregoing, the demurrer to the Complaint is sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment, however, the burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff has filed an opposition and the Court finds a reasonable possibility that Plaintiff can allege facts demonstrating the requisite facts regarding the specific access barriers and how they denied Plaintiff full and equal access. Therefore, leave to amend is granted.

Conclusion

Defendants Savo, LLC and John Zapp aka John S. Zapp’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.