Judge: Mark H. Epstein, Case: 22SMCV0993, Date: 2023-01-06 Tentative Ruling
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Case Number: 22SMCV0993 Hearing Date: January 6, 2023 Dept: R
This is a motion to strike on the novel ground that the
Unruh Act permits only prohibitory injunctive relief and plaintiff here seeks
mandatory relief. Plaintiff opposes on a
number of procedural and substantive grounds.
At the outset, the court is not convinced that the motion is ripe. Plaintiff makes a good point that the scope of any injunction is better considered when the injunction is actually at issue, not at the start of the case (at least where there is no motion for a TRO or Preliminary Injunction). Although defendant attempts to frame this as a purely legal question, the court is not sure defendant is right. That said, though, whether the issue is purely legal or not, the court agrees with defendant that it is better to resolve the issue now.
Defendant has submitted requests for judicial notice concerning the Unruh Act’s legislative history. Not all of that information is subject to judicial notice, and some would not be admissible even as an evidentiary matter. (Recall that judicial notice can probably be taken of the existence of an official record or document, but not of the truth of the matters asserted therein unless they are of jural effect and not as to the effect letters from various groups might have had on the legislation.) But the legislative history is ultimately unhelpful to the defense.
At the heart of the motion is Civil Code section 52. That section allows a court to issue “preventive relief,” which is injunctive in nature. The term “preventive relief” is not defined in the Unruh Act. Accordingly, defendant looks to section 3368, which defines “preventive relief” as relief “prohibiting a party from doing that which ought not to be done.” Arguing based on the in pari materia doctrine, defendant therefore equates “preventive” with “prohibitory.” But that is a logical leap that cannot stand.
The in pari materia doctrine applies to a term used in multiple parts of the same or similar statutes. The theory is that a term having a meaning in one part of a comprehensive legislative scheme likely has the same meaning elsewhere. (Altaville Drug Store, Inc. v. Employment Development Dep’t (1988) 44 Cal.3d 231, 238.) However, for that doctrine to apply, the statutes must be related somehow—they might be part of the same legislative enactment or they might be from different statutes designed to work together or to address a similar thing. Section 3368 is a general statute (enacted in 1872) that deals with injunctive relief generally. It was not a part of the Unruh Act and the in pari materia doctrine is not directly applicable. That does not mean it is of no moment; it is still a statute that defines the term at least generally in terms of injunctions. But it is not so strong as it would be were the in pari materia doctrine to apply properly.
But in any event, defendant takes too cramped a view of the term “preventive.” The term, by definition, means to prevent—to issue an order that stops future harm. That common sense meaning is not in conflict with section 3368, which authorizes a court to grant an injunction from stopping a defendant from doing that which ought not be done—like violating the law. True, section 3368 juxtaposes “preventive” relief from “specific” relief, which relief includes compelling a party to do that which ought to be done. But that does not allow the court to infer into a 150 year old general law an intent to leave the Unruh Act—enacted generations later—virtually toothless. True, the Unruh Act has its limits. But the limits are not so severe as defendant suggests.
Section 52(g) provides that the Unruh Act does not require construction or the like “beyond that . . . [which] is otherwise required by other provisions of law.” In other words, the Unruh Act cannot be the unique source of the type of injunction that plaintiff seems to seek, but neither does it prohibit an injunction of that sort if support for it can be found elsewhere. Here, there are a number of statutes that deal with structural impediments to access, including the ADA. According to plaintiff, if those laws permit an injunction, then section 52(g) is no bar. More specifically, the difference between the parties seems to be that defendant argues that plaintiff must bring an action under a different law to obtain relief that requires defendant to engage in construction or the like; plaintiff contends that the Unruh Act essentially borrows relief available in those acts and makes it available in an Unruh Act case, but does not itself authorize unique relief involving construction that would not also be found under a different statute. The court agrees with plaintiff’s reading, as discussed more below.
Plaintiff also cites to Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 in which the court of Appeal affirmed the issuance of a mandatory injunction. Defendant notes that the prohibitory/mandatory distinction was not discussed in Thurston, and thus the case is not binding on this question. That much is true. Thurston dealt with questions concerning whether a restaurant’s website was covered under the ADA. (Any violation of the ADA is automatically a violation of the Unruh Act. (Civ. Code sec. 51 subd. (f).) It did not deal with physical construction at all, although the injunction at issue was mandatory in nature. The court agrees that Thurston is not directly on point, and as a matter of power pursuant to Auto Equity, this court could perhaps ignore Thurston. But the fact remains that the reasoning in Thurston is compelling, even if not strictly dispositive in this context. The point was that the Unruh Act (and the ADA) were broadly construed to accomplish their objective—albeit always in a manner consistent with the statutory language. The Court of Appeal eschewed any unduly cramped interpretation—as defendant there urged—of the ADA and Unruh Act. And this court does so as well.
The court also believes that the Legislature well knew the difference between prohibitory injunctions and mandatory injunctions. Had it wished to bar courts from issuing mandatory injunctions under the Unruh Act, it would simply have said so. It would not have used the word “preventive” when it meant “prohibitory.”
At bottom, and one principal reason the court agrees with plaintiff’s construction, the Unruh Act is a remedial act; accordingly, it is to be construed broadly in favor of affording relief. The court does not believe that the Unruh Act was meant to reach only the removal of loose barriers but hobble any attempt at true, meaningful preventive relief. The reading that furthers the Unruh Acts remedial purpose—rooted as it is in fundamental public policy—is the reading that allows the court to issue meaningful injunctions that prevent a defendant from continuing to violate the Unruh Act even if that means the defendant must engage in a certain level of construction and even if the injunction is mandatory rather than prohibitory. The Unruh Act’s limits are found in the limits of similar statutes like the ADA. And those limits are not gossamer; they are real. The ADA does not require construction beyond a certain point. A defendant is not required under the ADA to spend undue amounts of money re-building property, for example. As such, the same limit will pertain to a violation of the Unruh Act. The court cannot, in the guise of enforcing the Unruh Act, order an injunction that the ADA (or a different applicable statute) would not countenance. But for section 52(g), the same might well not be true. Thus, plaintiff’s reading of the statute gives full effect and meaning to the express legislative limitation while still allowing the court to issue meaningful preventive relief to achieve the Act’s purpose and prevent further and future violations.
Here, plaintiff alleges that there is no access to defendant’s property because there were no designated parking spaces reserved for persons with disabilities. There were other barriers to which plaintiff adverted. According to the defendant, to remediate these issues (should plaintiff prevail), defendant would have to make actual repairs—it would have to remove and replace items and re-stripe the parking area. Those actions, defendant states, are in the nature of mandatory relief rather than prohibitory relief. Defendant may be right that the remedial injunction is mandatory in nature, but the court does not believe such an injunction is beyond the Unruh Act’s reach in light of other laws that so require. Consider an example. Assume that access to a defendant’s store was by stairs alone. The relief under the Unruh Act would likely be to require a ramp for those using wheelchairs or who could not climb stairs; it would not be to make sure that the stairs are not physically blocked by some trash or some artificial and easily removable barrier. If all the court could do would be to tell the defendant that it was acting poorly but could not require the defendant to fix the problem, the remedy would be a poor one. Defendant counters by saying that the remedy is not poor at all; plaintiff need only bring the action under the proper statute that does provide for such affirmative relief—just not the Unruh Act. While this may seem a problem that only a lawyer could love, the reason plaintiff might want to use the Unruh Act is because the Unruh Act arguably provides for somewhat better rules in terms of fee and cost recovery than other statutes. Defendant contends that plaintiff cannot have its cake and eat it, too; plaintiff can choose the Unruh Act with its better fee recovery provisions but lesser remedies or other statutes with better remedies but tougher fee recovery standards. The argument is not without some facial appeal, but the court is convinced that the Unruh Act is broad enough to cover this circumstance. As stated above, the act is remedial, so the court will interpret it liberally to achieve its purpose. Its purpose is to prevent a defendant from making its property inaccessible and that can only be done by allowing the court to issue reasonable injunctions that might require affirmative steps. And courts have assumed as much, like the Thurston court. The court simply has trouble believing that the Court of Appeal and able counsel defending that case simply made such a fundamental and basic error.
That is not to say that the difference between prohibitory and mandatory is meaningless. It does matter. The standards for issuing a mandatory injunction are stricter; review of such an injunction is somewhat stricter; and such injunctions are generally stayed automatically upon appeal. But none of those issues limits this court’s power to issue a mandatory but preventative injunction in an appropriate case. Of course, whether this is such a case must await another day; the court expresses no view thereon. For now, the motion is DENIED on its merits.