Judge Ralph C. Hofer, Case Number: 23GDCV00307, Date: 2023-08-11 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV00307, Date: 2023-08-11 Tentative Ruling

Case Number: 23GDCV00307 Hearing Date: August 11, 2023 Dept: D

TENTATIVE RULING

Calendar: 5

Date: 8/11/2023

Case No: 23 GDCV00307 Trial Date: None Set

Case Name: Whitaker v. Shiganyan

DEMURRER

Moving Party: Defendant Edita Elia Shiganyan

Responding Party: Plaintiff Brian Whitaker

RELIEF REQUESTED:

Dismissal of action

CAUSES OF ACTION: from First Amended Complaint

1) Violations of the Unruh Civil Rights Act

2) Violation of California Disabled Persons Act

SUMMARY OF FACTS:

Plaintiff Brian Whitaker alleges that plaintiff is a California resident with physical disabilities, as he suffers from a C-4 spinal cord injury, is a quadriplegic and uses a wheelchair for mobility. Plaintiff alleges that defendant Edita Elia Shiganyan owned Taron Bakery (Bakery) in Glendale in January 2023, and currently owns the Bakery.

Plaintiff alleges that on January 29, 2023, plaintiff went to the Bakery with the intention to avail himself of its goods, services, privileges or advantages, motivated in part to determine if defendant complies with the disability access laws. The FAC alleges that on the date of plaintiff’s visit, the facility failed to comply with ADA Standards as it relates to wheelchair users like plaintiff, as the only available outdoor tables lacked sufficient knee to toe clearance because they were pedestal style tables and plaintiff’s wheelchair cannot roll completely underneath them. Plaintiff cites to the 2010 ADA Standards for Accessible Design section 306. Plaintiff also alleges that plaintiff has severe hand impairments, and the lack of clearance caused him discomfort related to his disability.

Plaintiff alleges that plaintiff was denied equal access because plaintiff was not able to eat or drink without difficulty, and that the barriers identified are easily removed without much difficulty or expense and that there are numerous alternative accommodations which could be made to provide a greater level of access than presently exists. Plaintiff alleges that he is currently deterred from returning to the Bakery due to knowledge of the existing barriers.

The FAC also includes a CCP section 425.50 Compliance Statement, indicating that plaintiff qualifies as a high frequency litigant, that in the year preceding this complaint plaintiff filed approximately 338 lawsuits alleging violations of construction-related accessibility standards, and that plaintiff was in the area around the business engaged, at least in part, in constitutionally protected tester activities visiting businesses in the same manner as a potential customer to confirm their compliance with state and federal law, and that plaintiff visited the business with the intention to use the benefits of the facility in the same manner as a customer. The FAC alleges that at the conclusion of this suit, and after being informed that the barriers have been removed, plaintiff intends to return to the business to confirm accessibility.

ANALYSIS:

Procedural

Untimely

The demurrer is untimely. The file shows that the FAC was served on May 3, 2023, the date that counsel for defendant signed a Notice and Acknowledgment of Receipt of the FAC.

Under CCP section 415.30, a summons may be served by mail through an acknowledgement of receipt in proper form, and “Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement is thereafter returned to the sender.” CCP § 415.30(c). Here, service was therefore complete on May 3, 2023.

CCP § 430.40(a) provides, “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”

Defendant accordingly had thirty days from May 3, 2023 to respond to the FAC, until June 2, 2023, but failed to do so.

On June 9, 2023, defendant’s counsel executed and filed a Declaration of Demurring or Moving Party in Support of Automatic Extension.

The extension is evidently sought under CCP § 430.41(a)(2), which provides:

“(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”

(emphasis added).

Here, the declaration was not filed on or before the date the demurrer was due, but was seven days late. There has been no court order obtained from the court.

The extension was not timely sought, so does not automatically extend the time to plead. The demurrer, filed on July 6, 2023 was accordingly 34 days late, and could be overruled on this ground alone, but the Court elects not to do so.

Lack of Specificity

The demurrer does not state in the notice or memorandum to which cause of action the demurrer is directed, or clearly indicate on what ground the demurrer is made. The notice of demurrer in fact, does not seek that the court sustain a demurrer, but that it dismiss the action.

The memorandum does state that this is the second demurrer in the case, when the file does not show that there was ever a demurrer filed to the original complaint.

Plaintiff in opposition has objected on the ground the demurrer does not comply with the procedural provisions pertaining to demurrers. Plaintiff relies on CCP section 430.60, which provides:

“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”

CRC Rule 3.1320(a) provides:

“Each 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 cause of action or defenses.”

The demurrer fails to specify the grounds upon which it is made, and does not include any separate paragraphs providing this information or directed to specified causes of action. The demurrer could be disregarded or overruled on this ground alone as well, but the Court elects not to do so.

Substantive

The demurrer appears to broadly argue that the pleading is uncertain with respect to plaintiff’s allegations concerning the alleged barrier and the manner in which plaintiff is alleging he was denied access.

A party may demur to a complaint where the pleading is uncertain. CCP 430.10(f). “Uncertain” is defined to include ambiguous or unintelligible. Id.

Permitting demurrer for uncertainty is based on the policy which favors parties having notice of the liability alleged, and the pleading must be sufficiently certain to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkis v. Superior Court (1981) 117 Cal.App.3d 1, 6.

Defendant first argues that the complaint fails to sufficiently allege under the Unruh Act in laymen’s terms, the barriers that denied him full and equal access.

Under the Unruh Act, “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” Civil Code § 51. “Whoever denies, aids or incites a denial, or makes any discrimination or distinction” contrary to these rights “is liable for each and every offense for the actual damages,” caused, as well as “any attorney’s fees that may be determined by the court,” Civil Code § 52 (a).

Plaintiff can recover under the Unruh Act on two alternative theories:

“A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA (§ 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination.”

Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.

Defendant relies on three federal cases in which the Ninth Circuit found that allegations were insufficiently specific to state a claim for relief. In Whitaker v. Panama Joes Investors LLC (2021 9th Cir.) 840 Fed.Appx. 961, the Ninth Circuit found that the district court had appropriately dismissed a complaint because the complaint did not allege facts “identifying the specific deficiencies in the dining surfaces that prevented” plaintiff from fully accessing a restaurant, and did not “describe how the restrooms were inaccessible or which paths of travel in the patio area were inaccessible.” Whitaker, at 964.

In Whitaker v. Body, Art and Soul Tattoos Los Angeles, LLC (2020 9th Cir.) 840 Fed. Appx. 959, a motion to dismiss was found properly granted where the complaint, “did not allege facts identifying the specific deficiencies in the sales counters that prevented” plaintiff from fully accessing defendant’s services. Whitaker, at 961.

In Whitaker v. Tesla Motors, Inc. (2021 9th Cir.) 985 F.3d 1173, the Ninth Circuit found that allegations that Tesla “failed to provide accessible service counters” and that plaintiff had “personally encountered” the service counters was insufficient, as the complaint failed to allege how the counters prevented plaintiff from full and equal access to the facility. Whitaker, at 1177. The Ninth Circuit observed:

“The complaint failed to answer basic questions: Were the service counters too low? Or too high? Were they positioned in an area that was inaccessible for another reason?”

Whitaker, at 1177.

Plaintiff in opposition argues that the cases relied upon are unpublished federal cases, so not binding on this court, are of little persuasive value. Plaintiff argues that, in any case, the FAC here sufficiently alleges all elements of the claim plaintiff is alleging based on Title III of the ADA.

The FAC here alleges in some detail the location and nature of the alleged barrier, and also specifies the ADA Standard for Accessible Design the alleged barrier violates, section 306. [FAC, para. 12].

The FAC alleges that the feature at issue is “dining surfaces,” and that the compliance issue is that “[t]here was not enough toe clearance under the outdoor dining surfaces,” and further alleges:

“The only available outdoor tables lacked sufficient knee to toe clearance because they were pedestal style tables and Plaintiff’s wheelchair cannot roll completely underneath them. Further, Plaintiff has severe hand impairments and the lack of clearance causes him discomfort related to his disability.”

[FAC, paras. 12, 13].

The FAC alleges that “The failure to provide accessible dining surfaces denied Plaintiff full and equal access because the Plaintiff was not able to eat or drink without difficulty.” [FAC, para. 15].

These allegations are sufficiently specific to satisfy even the standard applied by the federal courts in the cited cases, and to provide defendant sufficient notice of the nature of the barrier alleged to be at issue. The demurrer on this ground is overruled.

Defendant also argues that the FAC fails to allege facts sufficient to satisfy the requirements of CCP section 425.50.

Under CCP § 425.50(a):

“(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.

(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.

(B) As used in this section “high-frequency litigant” has the same meaning as set forth in subdivision (b) of Section 425.55.”

Under CCP § 425.55:

“(a) The Legislature finds and declares all of the following:

(1) Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed.

(2) According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state's Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336).

(3) Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.

(b) For the purposes of this article, “high-frequency litigant” means a person, except as specified in paragraph (3), who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A “high-frequency litigant” means one or more of the following:

(1) A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.”

(Emphasis added).

Defendant argues that plaintiff has alleged that he is a high-frequency litigant, having filed approximately 338 complaints alleging violations of construction-related accessibility standards in the year preceding the drafting of this complaint. [FAC para. 27]. Defendant argues that the FAC fails to sufficiently provide a “plain language explanation of the specific access barrier…with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier,” and to allege 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.”

As set forth above, the FAC alleges that the barrier is alleged to have consisted of outdoor dining surfaces which did not provide sufficient toe clearance, and further describes the outdoor tables as “pedestal style tables,” which were constructed such that plaintiff’s wheelchair could not “roll completely underneath them.” [FAC, paras. 12, 13]. The FAC alleges the date on which the condition was encountered, and explains that the denial and deterrence was that “Plaintiff was not able to eat or drink without difficulty.” [FAC, paras. 8, 15]. The FAC also indicates that “Plaintiff went to the Bakery” on the date in question, “with the intention to avail himself of goods, services, privileges, or advantages,” and “was in the area shopping and eating when he visited the facility.” [FAC, paras. 8, 10]. Plaintiff states 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.” [FAC, para. 29].

Defendant seems to argue that plaintiff has failed to sufficiently describe his disability to support a nexus between the disability and the barriers he alleges. Defendant argues that it is not alleged whether plaintiff uses a wheelchair adapted vehicle, whether defendant drives, whether defendant uses a helper, has use of his arms and hands, can transfer to a chair, or can dine alone. These factors do not appear to be necessary to support the allegation that the dining surfaces in question prevented defendant from being able to eat or drink at the facility due to his alleged disability as a quadriplegic who alleges he “uses a wheelchair for mobility.” [See FAC, paras. 1, 15]. There is no legal authority under which there is a pleading requirement that plaintiff allege that he had no ability to transfer to a chair from his wheelchair, as seemingly suggested by defendant.

Defendant seems to argue that plaintiff has failed to sufficiently allege that he intended to become a customer of the business, but it is clearly alleged that he intended to avail himself of goods, services, privileges or advantages, and to do so in the same manner as a customer. While the FAC also alleges that plaintiff had a purpose of being a tester for compliance, there is nothing in the statute, and no legal authority cited by defendant, under which plaintiff must allege that his sole purpose or intention in visiting the business was to avail himself of goods and services of the business. Defendant has alleged his intent to avail himself and to use the benefits of the facility in the same manner as a customer. [FAC, paras. 8, 29]. These allegations must be accepted as true for purposes of demurrer. See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v. Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”) The demurrer on this ground is overruled.

Defendant also appears to argue that plaintiff is not entitled to injunctive relief, apparently because plaintiff fails to allege that he genuinely intended to patronize the defendant’s business. As discussed above, the FAC sufficiently alleges an intent on the part of plaintiff to avail himself of services and use the business as a customer. In addition, as argued in the opposition, a demurrer is not properly directed to a particular type of remedy, or to only part of a cause of action. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; Venice Town Council, Inc. v. City of Los Angeles (1996 2nd Dist.) 47 Cal.App.4th 1547, 1562 (“a demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.”). Here, as argued in the opposition, the pleading is in any case sufficient to allege a claim supporting the injunctive relief sought under the Unruh Act. The demurrer accordingly is overruled.

RULING:

Demurrer is OVERRULED, procedurally and on its merits. Procedurally, the demurrer is untimely and fails to comply with CCP section 430.60 and CRC Rule 3.1320(a). Substantively, the court finds that defendant has failed to establish that the First Amended Complaint is not appropriately alleged.

Ten days to answer.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES

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If no appearance is set up through LACourtConnect/Microsoft Teams, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.