Judge: Maurice A. Leiter, Case: 21STCV41826, Date: 2023-03-21 Tentative Ruling

Case Number: 21STCV41826    Hearing Date: March 21, 2023    Dept: 54

Hearing Date: March 21, 2023

Department 54, Judge Maurice A. Leiter

Motion to Strike Portions of Complaint

Moving Party: Defendants George Macris, individually and as trustee of the George Macris And Catherine Macris Living Trust Dated 1/26/12 and Catherine Macris, Individually And As Trustee Of The George Macris And Catherine Macris Living Trust Dated 1/26/12

Responding Party: Plaintiff James Shayler

T/R:     DEFENDANTS’ MOTION TO STRIKE IS DENIED.

            DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.) 

            Defendants move to strike Plaintiff’s prayers for injunctive and declaratory relief. This is an Unruh accessibility case brought under Civil Code § 51. Plaintiff alleges that Defendants’ property, at which a bakery operates, is inaccessible to disabled persons because it lacks designated disabled parking or an appropriate ramp. Plaintiff prays for:

1. A Declaratory Judgment that at the commencement of this action Defendants owned, maintained, and/or operated the Business and Property in a manner which discriminates against persons with disabilities, and that Defendant took no action that was reasonably calculated to ensure that its Business and Property are fully accessible to, and independently usable by persons with disabilities in violation of ADA, 42 U.S.C. § 12181 and California’s Unruh Civil Rights Act, California Civil Code § 51, et seq;

2. A preliminary and permanent injunction enjoining Defendants from further violations of the ADA, 42 U.S.C. § 12181 et seq. as amended by the ADA Amendments Act of 2008 (P.L. 110-325), and Unruh Civil Rights Act, Civil Code § 51 et seq. with respect to the Property and its operation of the Business…

Defendants argue that Plaintiff cannot seek physical changes to the property to conform with Unruh because Unruh allows only “preventative relief.” Defendants say that a plaintiff may seek only prohibitive, not mandatory, injunctive relief. Defendants base their argument on the definition of “preventative relief” in the Civil Code and to general law regarding preemption and statutory interpretation. Defendants do not provide any binding, California case law addressing this issue in connection with the Unruh Act, and the Court is unaware of any.

Plaintiff’s prayer for injunctive and declaratory relief is broad and does not include a specific request for physical changes to the property. The Court declines Defendants’ invitation to declare at this stage of the case that an injunction and declaratory relief cannot be crafted. Defendants have not shown that the prayer would require a mandatory injunction, nor have Defendants shown that the Unruh Act does not permit an injunction that includes physical changes to the property.

Defendants’ motion to strike is DENIED.