Judge: Richard Y. Lee, Case: 30-2021-01198613, Date: 2022-08-11 Tentative Ruling
Defendant Main Beach Toys, Inc. (“Defendant”) moves for an order sustaining its Demurrer to the “First Amended Complaint for Injunctive and Equitable Relief” filed by Plaintiff L. Branum (“Plaintiff”).
Defendant contends that the First Amended Complaint (“FAC”) should be stricken under Code of Civil Procedure section 436(b) as Plaintiff filed it late, and that the Demurrer should be sustained without leave to amend as the First Cause of Action for Discrimination and Harassment, Second Cause of Action for False Imprisonment, and Third Cause of Action for Unauthorized Practice of Medicine fail to state facts sufficient to constitute a cause of action against Defendant.
Late Filing of FAC
Under Code of Civil Procedure section 436, the court may, upon a motion or at any time in its discretion, and upon terms it deems proper, 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.” (Code Civ. Proc., § 436(b).) This provision challenges a pleading filed in violation of a deadline, court order, or requirement of prior leave of court. (Ferrero v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)
The trial court has discretion to accept a plaintiff’s late-filed complaint after the court sustains a demurrer, even though plaintiff does not move for leave to file late. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 870, 872-875.)
Plaintiff had until April 4, 2022 to file the FAC after the Court granted Defendant’s motion for judgment on the pleadings. The FAC was filed on April 7, 2022. Plaintiff asserts that she mailed the FAC for filing to the Court by overnight delivery on March 31, 2022 and has confirmation it was received on April 1, 2022. There has been no apparent prejudice to Defendant due to the delayed filing. Thus, although the FAC was filed late, the Court will accept the FAC.
First Cause of Action for Discrimination and Harassment
Defendant contends that Plaintiff was asked to wear a mask or face shield in an attempt to comply with the California mask mandate which is not a violation of the Unruh Civil Rights Act. Defendant further contends the FAC makes clear that Defendant did everything possible to accommodate Plaintiff while attempting to comply with the State’s mask mandate.
The FAC alleges that Defendant told Plaintiff to leave because Plaintiff could not wear a mask due to a medical exemption. (FAC, 2:18-24.) The FAC also alleges that Defendant told Plaintiff to stand outside until the other customers left; that Plaintiff re-entered the store after the other customers left; that Defendant eventually looked at a letter which explained that due to a medical condition, disability, and hearing impairment, Plaintiff could not wear masks; that Defendant told them they could wear a face shield; that Defendant then walked outside and told Plaintiff to tell her when she was ready to pay and that Defendant would then come back in; that Plaintiff and Defendant continued arguing until Plaintiff stated she was contacting the police to file a complaint and walked out the front door. (FAC, 2:24-28, 3:4-23.)
The First Cause of Action alleges that Defendant violated the following statutes and regulations: (1) “federal law” citing “C.F. 36.104” and “C.F. 36.208” which applies to a “public accommodation” and prohibits “the denial of participation” from a business unless an individual poses a “direct threat” to the health and safety of others; (2) the Unruh Civil Rights Act under Civil Code sections 51-52, and (3) the Disabled Persons Act under Civil Code section 54 which provides protections to people with medical conditions and disabilities within the State. (FAC, 4:4-14.) The First Cause of Action also alleges that those with medical conditions and disabilities and hearing impairments are exempt from wearing face covering per the Centers for Disease Control guidelines dated August 7, 2020, and the California Department of Health guidelines dated June 18, 2020.
“The Unruh Civil Rights Act was enacted to ‘create and preserve a nondiscriminatory environment in California business establishments by “banishing” or “eradicating” arbitrary, invidious discrimination’… based on ‘sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation…’” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.) Civil Code section 51 of the Unruh Civil Rights Act “incorporates the protections against discrimination created by the Americans with Disability Act of 1990 [Citation]. (ADA). It states: ‘ “a violation of the right of any individual under the [federal ADA] shall also constitute a violation of this section.” ’ (Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 34.) The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of, among other things, accommodations of any place of public accommodation. (Ibid.) “The ADA defines discrimination as ‘a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities . . . .’ ” (Id., at pp. 34-35.) “ ‘Facilities are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons; they need only make accommodations that are reasonable. In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety.’ ” (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1447.)
Civil Code section 54 (the Disabled Persons Act) states “[i]ndividuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places.” Any individual who is “denied equal access” to a public place may bring a cause of action under the DPA. (53 Cal.App.5th at p. 35.) “ ‘Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent that “A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101–336) also constitutes a violation of this section.” [Citation.]’ ” (Baughman, 217 Cal.App.4th at p. 1446.)
Plaintiff’s citations to federal law appear to be invoking federal statutes 28 C.F.R. §§ 36.104 and 36.208. Those sections do not provide for any cause of action, as they relate to definitions and exceptions. However, 28 C.F.R. § 36.202 states: “A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
Here, there are insufficient facts alleged to show that Defendant discriminated against or harassed Plaintiff based on a protected class. The allegations do not show that Plaintiff was denied access to a public accommodation. Instead, they show Plaintiff was granted access to the store once other customers had left. Further, Defendant offered Plaintiff a face shield in lieu of a mask upon entering the store in an attempt to provide a reasonable modification in order to afford Plaintiff accommodations to its store. Thus, the FAC fails to state a cause of action under the Unruh Civil Rights Act, DPA, or federal law. Plaintiff’s Opposition fails to show that Plaintiff can amend to cure the defect. It is Plaintiff’s burden to state how a valid cause of action can be pled. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Thus, the Court SUSTAINS, without leave to amend, the Demurrer to the First Cause of Action.
Second Cause of Action for False Imprisonment
Defendant asserts that refusing entry to a store does not constitute false imprisonment. Plaintiff alleges she “refused” to leave the store, which, Defendant argues, contradicts her false imprisonment claim.
“‘False imprisonment involves the intentional confinement of another against the person’s will. The elements are (1) nonconsensual, intentional confinement of a person, (2) without lawful privilege, (3) for an appreciable period of time, however brief. [Citations.]’ [Citation.]” (Bocanegra v. Jakubowski (2015) 241 Cal.App.4th 848, 855.)
The FAC alleges that Defendant told Plaintiff to “leave the store,” and when Plaintiff refused, Defendant “told them to stand outside until the other customers left.” (FAC, 2:22-28.) The FAC also alleges that Plaintiff “re-entered the store,” that the store clerk walked outside and told Plaintiff to “tell her when [they were] ready to pay and she’ll come back in.” (FAC, 3:6-8, 3:17-23.) Based on the allegations, the FAC fails to allege facts to show that Plaintiff was confined by Defendant.
The Second Cause of Action also references California Penal Code section 236, and alleges, “[a] business has no legal authority to deny our entry, kick us out, or segregate us by making us stand outside.” (FAC, 6:13-17.) Section 236 states: “[f]alse imprisonment is the unlawful violation of the personal liberty of another.” As discussed above, the FAC fails to allege that Plaintiff was confined by Defendant and therefore fails to allege any violation of Plaintiff’s personal liberty by Defendant. Further, while a criminal statute may expressly or impliedly give rise to a private right of action for its violation (Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 141), nothing in section 236 expressly or impliedly does so. Thus, Plaintiff’s second cause of action fails to state sufficient facts.
As Plaintiff has not shown how the defect can be cured, the Court SUSTAINS, without leave to amend, the demurrer to the Second Cause of Action.
Third Cause of Action for Unauthorized Practice of Medicine
Defendant contends that there is no allegation that it was engaging in the practice of medicine, and that it is not aware of any authority that holds that requesting that a customer wear a mask or face shield constitutes the unauthorized practice of medicine.
Business and Professions Code section 2052 prohibits the unlicensed practice of medicine for which one may be “guilty of a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment.” (Bus. & Prof. Code, § 2052(a).)
The FAC alleges, in part: “California Business and Professions Code 2052 makes it a crime to engage in the unauthorized practice of medicine (without a valid license) and imposes civil/criminal penalties for giving medical advice or exams without a license, proper insurance and training. Telling me to wear face shield after reading the medical letter of exemption and against CDC recommended guidelines on August 7, 2020 . . . is negligent and unlawful.” (FAC, 6:23-7:7.)
There are no allegations that Defendant was or is engaged in the practice of medicine or engaged in such without a valid license. Plaintiff has not provided authority showing that advising Plaintiff to wear a face mask or face shield constitutes the practice of medicine. Thus, the Court finds the third cause of action fails to state facts sufficient to constitute a cause of action. Plaintiff has also not shown that the defect can be cured. Again, Plaintiff has failed to show how this defect may be cured by amendment. Therefore, the Court SUSTAINS, without leave to amend, the demurrer to the Third Cause of Action.
Defendant’s Request for Judicial Notice
Defendant requests that the Court take judicial notice of the California Department of Public Health mandate issued on June 18, 2020, concerning face coverings to combat the spread of COVID-19 pursuant to Evidence Code § 452(c).
Under Evidence Code section 452(c), judicial notice may be taken of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”
The Court GRANTS the request for judicial notice but declines to take notice of hearsay statements within the document.
Defendant to give notice.