Judge: Randy Rhodes, Case: 22CHCV00557, Date: 2023-03-17 Tentative Ruling
Case Number: 22CHCV00557 Hearing Date: March 17, 2023 Dept: F51
Dept. F-51
Date: 3/17/23
Case #22CHCV00557
DEMURRER
Demurrer Filed: 1/17/23
MOVING PARTY: Defendant GNN Investments, LLC, a
California limited liability company (“Defendant”)
RESPONDING PARTY: Plaintiff Anthony Bouyer, an
individual (“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: Moving Defendant demurs to
Plaintiffs’ entire complaint.
TENTATIVE RULING: The demurrer overruled. Plaintiff’s
evidentiary objections are sustained.
Defendant is reminded to review the 5/3/19 First Amended
General Order Re Mandatory Electronic Filing for Civil. When e-filing
documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set
forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended
General Order Re Mandatory Electronic Filing for Civil (particularly
bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply
with these requirements in the future may result in papers being rejected,
matters being placed off calendar, matters being continued so documents can be
resubmitted in compliance with these requirements, documents not being
considered and/or the imposition of sanctions.
BACKGROUND
This action arises
out of Plaintiff’s allegation that Defendant failed to maintain its business
facility in compliance with the Americans with Disabilities Act (“ADA”), the
1991 Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), and/or
the 2010 ADA Standards for Accessible Design (“ADASAD”). On 7/15/22, Plaintiff,
patronized Defendant’s business, and “as a result of his difficulty experienced
because of the inaccessible condition of the facilities of the Business,
Plaintiff was denied full and equal access to the Business and Property.” (FAC
¶ 28.)
On 7/22/22, Plaintiff
filed his original complaint against Defendant for alleged violations of the
Unruh Civil Rights Act (Civ. Code § 51 et seq.) On 12/13/22, Plaintiff filed
his first amended complaint (“FAC”).
On 1/17/23, Defendant
filed the instant demurrer. On 3/6/23, Plaintiff filed his opposition. On
3/10/23, Defendant filed its reply.
ANALYSIS
Meet-and-Confer
Before filing its demurrer, “the demurring party shall meet
and confer in person or by telephone with the party who filed the pleading that
is subject to demurrer for the purpose of determining whether an agreement can
be reached that would resolve the objections to be raised in the demurrer.”
(Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and
serve a meet and confer declaration stating either: “(A) The means by which the
demurring party met and conferred with the party who filed the pleading subject
to demurrer, and that the parties did not reach an agreement resolving the
objections raised in the demurrer;” or “(B) That the party who filed the
pleading subject to demurrer failed to respond to the meet and confer request
of the demurring party or otherwise failed to meet and confer in good faith.” (Id.
at subd. (a)(3).)
Defendant’s counsel declares that on 12/21/22, he contacted
Plaintiff’s counsel to meet and confer regarding the issues raised in the
instant demurrer, and the parties discussed telephonically on 12/29/22 without
coming to a resolution. (Decl. of Ara Sahelian, ¶ 3.) Therefore, the Court
finds that Defendant’s counsel has satisfied the preliminary meet and
confer requirements of Code of Civil Procedure section 430.41, subdivision
(a).
Legal Standard
As a general matter, a party may respond to a pleading
against it by demurrer on the basis of any single or combination of eight
enumerated grounds, including that “the pleading does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd.
(e).) 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 pleading alone, and not the evidence
or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs.
(2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Ibid.) The
only issue a demurrer is concerned with is whether the complaint, as it stands,
states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
Here,
Defendant demurs to Plaintiff’s entire complaint for failure to allege facts
sufficient to support its sole cause of action. (Code
Civ. Proc., § 430.10, subd. (e).)
Standing
Defendant
argues that Plaintiff has not alleged facts to sufficiently plead that he has
the requisite standing to bring the instant action. “An individual plaintiff
has standing under the [Unruh Civil Rights] Act if he or she has been the
victim of the defendant's discriminatory act. … standing under the Act extends
to persons actually denied full and equal treatment by a business
establishment—that is, to “victims of the discriminatory practices.” (Angelucci
v. Century Supper Club (2007) 41 Cal.4th 160, 175 [citations and quotations
omitted].)
Here,
Defendant argues that “Plaintiff fails to plead his disability with
specificity, fails to plead harm in that he fails to connect his disability to
the alleged barriers and fails to plead how he suffered difficulty or
discomfort by the alleged ‘barriers.’” (Dem. 5:8–13.)
In
opposition, Plaintiff argues that he has sufficiently pled his standing to
bring the instant action because he “alleges that he is disabled, he went to
Defendants’ property as a customer and as an advocate for the civil rights of
disabled persons, and that he encountered access barriers that relate to his
disability.” (Pl.’s Opp., 3:5–7, citing FAC ¶¶ 1, 11, 14, and 22.)
Specifically, Plaintiff has alleged in his FAC that his physical disabilities
require him to use a manually powered wheelchair to ambulate, and that the
barriers he encountered at Defendant’s business establishment, which included a
parking area containing excessive slopes, caused him to exert himself more than
necessary, resulting in difficulty, discomfort, and frustration. (FAC ¶¶ 1, 24.) Furthermore, “as
a result of his difficulty experienced because of the inaccessible condition of
the facilities of the Business, Plaintiff was denied full and equal access to
the Business and Property.” (FAC ¶
28.)
Based on
the foregoing, the Court finds that Plaintiff has alleged facts sufficient to
support his standing to bring his action for violations of the Unruh Civil
Rights Act. Accordingly, the demurrer is overruled as to this issue.
Pleading
Standard (Code of Civil Procedure section 425.50.)
“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.” (Code Civ. Proc. § 425.50, subds. (a)(1)–(3).)
In addition to the requirements
specified in Code of Civil Procedure section 425.50, subdivisions (a)(1)–(3), a
construction-related accessibility complaint which is filed by or on behalf of
a high-frequency litigant must 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.” (Code Civ. Proc. § 425.50, subd. (a)(4)(A).)
Here,
Defendant argues that Plaintiff, has not met the pleading requirements under
Code of Civil Procedure section 425.50. Defendant asserts that “Plaintiff makes
insufficient allegations to demonstrate that he was harmed or deterred from
visiting the subject property due to the alleged barriers.” (Dem. 12:5–8.)
Additionally, Defendant argues that Plaintiff’s “medical condition does not
describe with specificity the distance he can walk, the slope levels that he is
unable to navigate, the mobility device that he used on the date of the
incident, whether it was a wheelchair or a walker or a cane, and how often he
relies on these devices.” (Id. at 12:20–26.)
Plaintiff
argues in opposition that Defendants misinterpret Code of Civil Procedure
section 425.50 to require more than what Plaintiff has already pled. “The FAC
alleges exactly how the barriers to access affected Plaintiff, who is
paraplegic and requires a wheelchair to ambulate (FAC ¶ 1, 24, 26)). The
excessive slopes in the parking space and access aisle that Plaintiff
personally encountered (FAC ¶ 22) caused him difficulty, discomfort, and
frustration, because the excessive slopes forced him to exert himself more than
necessary (FAC ¶ 24).” (Pl.’s Opp., 5:16–19.) Plaintiff has also alleged that
the barriers were encountered on 7/15/22. (FAC ¶ 11.) Based
on the foregoing, the Court finds that Plaintiff has met each pleading
requirement under Code of Civil Procedure section 425.50, subdivisions
(a)(1)–(3).
Plaintiff
has additionally alleged that he is a high-frequency litigant who “has filed
multiple lawsuits against various owners and/or operators of places of public
accommodation under the Unruh Civil Rights Act as part of Plaintiff’s advocacy
work on behalf of the civil rights of persons with disabilities.” (Id. ¶ 8.) Plaintiff further
alleges that he has filed approximately 264 of these actions in the past 12
months. (Ibid.) Plaintiff alleges that he “was in the geographical area
because he was getting dinner in the area and he stopped at the Business to get
a beverage on the way home.” (Id. at ¶ 12.) Plaintiff also alleges that he visited
Defendant’s business for two reasons: “as a customer to purchase a beverage, an
item that is sold at the Defendant’s Business Establishment, and also as an
advocate for the civil rights of disabled persons to verify whether Defendants
comply with the ADA and the UCRA.” (Id. at ¶ 11.) Therefore, the Court finds that Plaintiff has met
each pleading requirement under Code of Civil Procedure section 425.50,
subdivision (a)(4)(A).
The Court
agrees with Plaintiff that he has met the pleading requirements under Code of
Civil Procedure section 425.50, which do not require the degree of specificity
argued by Defendant. Accordingly, the Court overrules the demurrer as to this
issue.
CONCLUSION
The demurrer overruled. Plaintiff’s evidentiary objections
are sustained.