Judge: Robert C. Longstreth, Case: 37-2022-00034967-CU-CR-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2022-00034967-CU-CR-CTL HARTLEY VS ATHLETES NUTRITION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/21/2023

Defendant's Demurrer to the Complaint is OVERRULED. (ROA 24.) At the outset, the court notes both sides rely on various exhibits to make their arguments. A demurrer lies only where a defect appears on the face of the challenged complaint or from judicially noticeable matters. (Code Civ. Proc. § 430.30(a).) Neither Defendant nor Plaintiff has sought judicial notice of any matters outside the complaint.

Plaintiff's counsel submitted email correspondence between his assistant and a representative of the City of Oceanside's Planning Division. (Manning Decl. at Exh. 3.) Plaintiff has not sought judicial notice of this email and has not cited any basis upon which the court may take judicial notice of it. The court therefore declines to consider this extrinsic evidence.

Defendant also cites to exhibits as forming the basis for asserting it is not a proper party to the action.

(Code Civ. Proc. § 430.10(d).) Specifically, Defendant contends that while it is the owner of the retail building at the subject property, the City of Oceanside is the owner of the subject parking spaces.

However, Defendant offers no analysis of the exhibits. Even if the court were to sua sponte take judicial notice as to the recorded documents pursuant to Evidence Code section 452(c), Defendant has not sufficiently demonstrated that the City is the sole owner of the subject parking spaces, or that Defendant is not the owner of the subject parking spaces.

Plaintiff has sufficiently alleged ownership of the parking places. He is not required to furnish grant deeds or other evidence to support this allegation in response to a demurrer. Nor is it proper for the Defendant to base a demurrer on extrinsic evidence, especially when that evidence on its face appears unpersuasive. Accordingly, the demurrer is overruled on these grounds.

Defendant also asserts Plaintiff's Complaint fails to state facts sufficient to constitute a cause of action under the Unruh Act. (Code Civ. Proc. § 430.10(e).) The demurrer is overruled on this grounds as well.

Defendant argues that plaintiff has failed to sufficiently allege a violation of the Americans with Disabilities Act (ADA). To the extent that Defendant is reasserting its ownership argument, this argument fails for the reasons stated above. The court finds that plaintiff has alleged a violation of the ADA, and a cause of action under the Unruh Act, sufficient to survive demurrer.

Finally, Defendant asserts Plaintiff's verification of the Complaint is deficient because it does not state the place of execution. Defendant does not assert that the demurrer should be sustained on this ground, does not assert that the Complaint must be verified, and provides no authority suggesting that a Calendar No.: Event ID:  TENTATIVE RULINGS

3042464  11 CASE NUMBER: CASE TITLE:  HARTLEY VS ATHLETES NUTRITION INC [IMAGED]  37-2022-00034967-CU-CR-CTL verification that references the laws of the state of California is defective because it does not provide the place of execution. (See Code Civ. Proc. § 2015.5(b).) Instead, Defendant asks only that the Court either deem the Complaint verified or instruct the Plaintiff to correct the 'deficiency.' Since there is no legal 'deficiency' asserted, no reason given why there is question whether the Complaint is verified, or any explanation as to why it matters if it is or not, the Court declines the invitation.

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