Judge: Maurice A. Leiter, Case: 22STCV12002, Date: 2023-08-08 Tentative Ruling

Case Number: 22STCV12002    Hearing Date: August 8, 2023    Dept: 54

Hearing Date: August 8, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Second Amended Complaint and Motion to Strike

Moving Party: Defendants Los Angeles United Investment Co., LLC and Pizza Italia

Responding Party: Plaintiff Jonelle Hill

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT’S MOTION TO STRIKE IS DENIED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANT 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.

BACKGROUND

On January 3, 2023, Plaintiff Jonelle Hill filed the operative second amended complaint against Defendants Los Angeles United Investment Co., LLC and Pizza Italia, asserting one cause of action for violation of Unruh. Plaintiff, a wheelchair user, alleges the Pizza Italia restaurant is inaccessible for disabled persons.

ANALYSIS

A. Demurrer to Second Amended Complaint

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true all of the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendants demur to the second amended complaint on the ground that it fails to state sufficient facts. CCP § 425.50(a) provides,

(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:

(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.

(3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.

Section 425.50(a)(4)(A) provides for additional pleading standards for “high-frequency” litigants. Plaintiff, however, is not a high-frequency litigant.

Plaintiff alleges the walkway to enter the Defendants’ building is too steep and uneven, making it unreasonably difficult to access. Plaintiff also alleges that the carpets in the building were not secured, which increases the risk of an accident. Plaintiff visited the building in October and December of 2021. This is sufficient to comply with CCP § 425.50(a).

Defendants’ demurrer is OVERRULED.

B. Motion to Strike

“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.)

Defendants move to strike Plaintiff’s request for injunctive relief and to reclassify this action to limited civil. Defendants assert Plaintiff cannot obtain injunctive relief under Unruh because Plaintiff does not allege intentional discrimination. Plaintiff does allege intentional discrimination. (Compl. 23.) Defendants also contend that Plaintiff only seeks $4,000.00 in damages and the action must be reclassified. Plaintiff, however, seeks $4,000.00 per violation, which could potentially exceed the damage limit for limited civil.

Defendants’ motion to strike is DENIED.