Judge Peter A. Hernandez, Case Number: 22PSCV02044, Date: 2023-09-01 Tentative Ruling

Defendants Kevin W. Diab’s, Fayad E. Kassis’ and George B. Soukie’s Demurrer to First Amended Complaint is OVERRULED.

Plaintiff is disabled and uses a wheelchair for mobility. On August 22, 2022, Plaintiff went to Mexim Liquor located at 18061 Valley Blvd., La Puente, California (“Store”) but encountered ADA non-compliant conditions pertaining to paths of travel which denied Plaintiff full and equal access. The Store is owned by Defendants Kevin Wejeh Diab (“Diab”), Fayad Elias Kassis (“Kassis”) and George Bahij Soukie (“Soukie”).

On April 20, 2023, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Diab, Kassis and Soukie for:

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e)&(f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Diab, Kassis and Soukie (together, “Defendants”) demur, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first and second causes of action in Plaintiff’s FAC, on the basis that they both fail to state facts sufficient to constitute causes of action and are uncertain.[2]

Defendants contend that Plaintiff fails to plead his particular disability, fails to connect his particular disability to each alleged “barrier,” and fails to plead the manner in which he was denied access. (Dem., 3:5-7). Plaintiff, however, has alleged that he is paralyzed from the waist down and uses a wheelchair for mobility (FAC, ¶ 1), that on August 22, 2022 he “personally encountered” non-compliant ADA Standard § 403 paths of travel inside Store which narrowed to less than 36 inches in width in many places (Id., ¶¶ 8, 11 and 17), and that some of the aisles “had limited clear space available for Plaintiff to travel down in his wheelchair,” such that he was “unable to reach some of the merchandise in the Store” (Id., ¶ 14).

Defendants then contend that Plaintiff’s FAC fails to satisfy the requirements of Code of Civil Procedure § 425.50[3] and that Plaintiff lacks standing. These contentions lack merit. Again, in addition to the information set forth above, Plaintiff has alleged that he is a “high-frequency litigant” as defined by § 425.55 (FAC, ¶ 25), that he filed approximately 130 lawsuits alleging violations of construction-related accessibility standards in the year preceding the filing of this complaint (Id., ¶ 26), that he went to Store on August 22, 2022 “with the intention to avail himself of its goods, services, privileges, or advantages (‘Benefits’) motivated in part to determine if the Defendants comply with the disability access laws” (Id., ¶ 8), that he “was in the area around the business and engaged in constitutionally protected tester activities visiting businesses in the same manner as a potential customer to confirm their compliance with state and federal laws” (Id., ¶ 27) and that he “visited the subject business for the purpose of testing facility compliance with accessibility laws with the intention to use the Benefits of the facility in the same manner as a customer” (Id., ¶ 28).

[1] The demurrer was filed (and served via email) on July 6, 2023 and originally reserved (but not scheduled) for hearing on August 2, 2023. On August 2, 2023, the court continued the hearing to September 1, 2023; notice was waived.

[2] The notice of motion is defective, in that it seeks a “dismissal of the action” and reflects non-compliance with Code of Civil Procedure § 430.60 (i.e., “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken . . .” and Rules of Court Rule 3.1320, subdivision (a) (i.e., “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses”). The court construes Defendants’ demurrer as predicated on Code of Civil Procedure § 430.10, subdivisions (e) and (f), per the statements made therein (i.e., “[t]he allegations are entirely vague. . .” [P. 4, l. 11]; reference to subsection (e) [P. 4:23-24).

[3] Code of Civil Procedure § 425.50 states, in relevant part, as follows: “(a) An allegation of a construction-related accessibility claim in a complaint . . .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.

(4)(A) Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following: (i) Whether the complaint is filed by, or on behalf of, a high-frequency litigant. (ii) In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint. (iii) In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendant’s business. (iv) In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.”