Judge: Peter A. Hernandez, Case: 23PSCV00819, Date: 2023-11-08 Tentative Ruling

Case Number: 23PSCV00819    Hearing Date: November 8, 2023    Dept: K

Plaintiff Jose Madriz’s Motion to Strike Portions of Camino Real Mexican Food, Inc.’s [First Amended] Answer is DENIED. The Second Amended Answer filed on October 31, 2023 is stricken.

Plaintiff’s demurrer is OVERRULED in part (i.e., as to the first, fourth and tenth affirmative defenses) and SUSTAINED in part (i.e., as to the second, third, fifth through ninth and eleventh affirmative defenses). The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which affirmative defense(s), and will require an offer of proof if so.

Background   

Plaintiff Jose Madriz (“Plaintiff”) alleges as follows:

Plaintiff has Arthrogryposis and uses a wheelchair for mobility. On January 27, 2022, Plaintiff went to Casa Alvarez (“Restaurant”) located at 19744 Colima Road, Rowland Heights, California 91748 (“Subject Property”) but encountered numerous ADA non-compliant conditions in the restroom which denied Plaintiff full and equal access. The Restaurant is owned and/or operated by Camino Real Mexican Food, Inc. (“Camino Real”) and the Subject Property is owned by Rowland Heights Properties, LP (“Rowland Properties”) and Rowland Heights Holdings, LP (“Rowland Holdings”).

On June 28, 2023, Plaintiff filed a Second Amended Complaint, asserting causes of action against Rowland Properties, Howland Holdings, Camino Real and Does 1-10 for:

1.                  Violation of the Americans with Disabilities Act

2.                  Violation of the Unruh Civil Rights Act

3.                  Violation of the California Disabled Persons Act

A Case Management Conference is set for November 8, 2023.

Legal Standard

Motion to Strike

Pursuant to Code of Civil Procedure section 436, “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 inserted 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Demurrer

“The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b).)

“Under Code of Civil Procedure section 431.30, subdivision (b)(2), the answer to a complaint must include ‘[a] statement of any new matter constituting a defense.’ The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’” but only a traverse.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)

A demurrer to an answer may be made upon any one or more of the following grounds: (1) The answer does not state facts sufficient to constitute a defense; (2) The answer is “uncertain,” i.e., ambiguous or unintelligible; (3) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. (Code Civ. Proc., § 430.20.)

Discussion

Plaintiff moves to strike out portions of Camino Real’s First Amended Answer (“FAA”). Plaintiff also demurs to the first through eleventh affirmative defenses in the FAA.

Motion to Strike

Plaintiff first seeks to strike out “information and belief” statements contained in the FAA.

A complaint alleging a construction-related accessibility claim must be verified. (Code Civ. Proc., § 425.50, subd. (b)(1).) An answer to a verified complaint must also be verified. (Code Civ. Proc., § 446, subd. (a).) “If the complaint is verified,. . . the denial of the allegations shall be made positively or according to the information and belief of the defendant.” (Code Civ. Proc., § 430.10, subd. (d).)

“If the defendant has no information or belief upon the subject sufficient to enable him or her to answer an allegation of the complaint, he or she may so state in his or her answer and place his or her denial on that ground.” (Code Civ. Proc., § 430.10, subd. (e).) “The denials of the allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all of the allegations not so admitted; or by denial of certain allegations upon information and belief, or for lack of sufficient information or belief, with a general denial of all allegations not so denied or expressly admitted.” (Code Civ. Proc., § 430.10, subd. (f).)

“If the matter is within the defendant's actual knowledge or by its nature is presumed to be within his knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded.” (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791).

Plaintiff complains that while Camino Real’s FAA “affirmative[ly] admit[s] or denie[s] Paragraphs 12, 13, 17 and 26 of Plaintiff’s verified complaint, all other paragraphs have been denied on the basis of lack of “sufficient information or belief.” (Motion, 3:5-7). Plaintiff, however, has failed to specifically address the paragraphs he contends were improperly denied on the basis of insufficient information and belief because they were either within Camino Real’s actual knowledge or presumed to be within defendant’s actual knowledge. The court declines to do Plaintiff’s work for him. The motion to strike is denied.

Demurrer

The affirmative defenses of failure to state a claim (i.e., first affirmative defense), lack of standing (i.e., fourth affirmative defense) and no damages (i.e., tenth affirmative defense) do not raise any new matter, but are merely responsive to the allegations pleaded by Plaintiff. Plaintiff’s demurrer to same is overruled.

The affirmative defenses of effective access (i.e., second affirmative defense), Defendants provided services via alternative methods (i.e., third affirmative defense), performance of duties (i.e., fifth affirmative defense), no barriers (i.e., sixth affirmative defense), reasonableness, good faith and non-discrimination (i.e., seventh affirmative defense), no discrimination (i.e., eighth affirmative defense) and good faith barrier removal (i.e., ninth affirmative defense) all raise new matter; as such, Plaintiff’s demurrer to same is sustained.

Camino Real’s eleventh affirmative defense (i.e., right to amend) is not an “affirmative defense;” rather, it is a statement that “Defendant reserves the right to amend this Answer should it later discover facts demonstrating the existence of additional affirmative defenses.” This is an improper attempt at requesting an amendment rather than a defense.  Amendments may be requested from the court; they are not reserved on an answer. (Code Civ. Proc., § 473, subd. (a).) The demurrer, then, is sustained.