Judge: Ronald F. Frank, Case: 22TRCV00128, Date: 2023-03-15 Tentative Ruling
Case Number: 22TRCV00128 Hearing Date: March 15, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 7, 2023¿¿
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CASE NUMBER: 22TRCV00128
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CASE NAME: Shamar
Jackson v. Dasho II, LLC
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MOVING PARTY: Defendants,
Susanna Kechedzian & Trendsetters Plus, Inc.
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RESPONDING PARTY: No
opposition filed by Plaintiff
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TRIAL DATE: None set¿
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MOTION:¿ (1) Demurrer
Tentative Rulings: (1) Demurrer is Sustained, with
20 days leave to amend
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I. BACKGROUND¿¿
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A. Factual¿¿
Plaintiff
filed his original Complaint on February 18, 2022 and listed Dasho II, LLC as a
Defendant and a subject property located at 8525 S Sepulveda Blvd., Los
Angeles, CA 90045. Defendants Susana Kechedzian and Trendsetters Plus Inc. have
no relation to Dasho II, LLC or to the aforementioned subject property.
Defendants assert that this confusion began as a result of this mistake made by
the Plaintiff himself. Plaintiff has since filed a First Amended Complaint on
June 14, 2022. The FAC removed Dasho II, LLC and added the current Defendants
Susanna Kechedzian and Trendsetters Plus, Inc. The Complaint alleges causes of
action for violation of the Unruh Civil Rights Act.
The
FAC alleges that the property has been newly constructed, and/or underwent
remodeling repairs, or alterations since 1992, and Defendants have failed to
comply with California access standards which applied at the time of each new
construction and/or alteration, or failed to maintain accessible features in
operable working conditions. (FAC, ¶ 13.) Plaintiff further alleges in his FAC
that the premises violated the construction-related accessibility standards of
Title 24 of the California Code of Regulations (California Building Standards
Code), Part 36 of Title 28 of the Code of Federal Regulations (28 CFR Part 36),
and the Americans with Disabilities Act Accessibility Guidelines for Buildings
and Facilities (“ADAAG”). (FAC, ¶ 14.) Plaintiff alleges that when he visited
the Property, he experienced access barriers related to parking, routes of travel,
signage, restroom, and other areas. (FAC, ¶ 19.)
Plaintiff’s
FAC alleges that he is a disabled person and has difficulty walking and getting
around. (FAC, ¶ 1.) The Plaintiff also notes that he visited Defendants’
property three separate times and encountered the following barriers:
(1) No
accessible route of travel was provided to all entrances, (FAC, ¶ 20, pg. 6);
(2) No
accessible route of travel was provided from the designated disabled parking
space to the entrance of the business, (FAC, ¶ 20, pg. 6);
(3) No
directional signage showing an accessible path of travel to an accessible
entrance, (FAC, ¶ 20, pg. 7);
(4) The
tow away sign and other clear signage were not posted or not compliantly
posted, (FAC, ¶ 20, pg. 8);
(5) The
sign identifying the designated parking space was missing, (FAC, ¶ 20; pg. 8);
(6) There
was no sign warning of the $250 minimum fine for parking in the designated
disabled parking space, (FAC, ¶ 20, pg. 9.)
(7) The
cross slopes were greater than 2%, (FAC, ¶ 20, pg. 9);
(8) The
route of travel had an uneven ground surface with changes in level exceeding ½
inch and no ramps were provided, (FAC, ¶ 20, pg. 10);
(9) The
walk leading into the business had an abrupt change in level of more than ½
inch, (FAC, ¶ 20, pg. 11);
(10)
The paint used for the designated disabled parking
space was faded and unclear, (FAC, ¶ 20,
pg. 12);
(11)
The width of the designated disabled parking space was
less than nine feet wide, (FAC, ¶ 20, pg. 12);
(12)
The designated disabled parking space was not
completely outlined in blue and the
head of the parking space was missing blue striping, (FAC, ¶ 20, pg.13);
(13)
The designated disabled parking space had changes in
level of more than ½ inch, (FAC, ¶ 20,
pg. 13);
(14)
The path of travel was not separated by curbs,
railings, or a continuous detectable warning,
(FAC,¶ 24, pg. 14);
(15)
The toilet rear grab bar was noncompliant, (FAC, ¶ 24,
pg. 15);
(16)
The restroom door had a door closer that closes the
door in less than five seconds, (FAC,
¶ 24, pg. 16);
(17)
There was no signage on the wall approaching the
restrooms and the sanitary facilities
are missing door signage to indicate an accessible facility, (FAC, ¶ 24, pg. 16);
(18)
The sign identifying the designated disabled parking
space was obscured with stickers
and/or graffiti, (FAC, ¶ 24, pg. 17);
(19)
The length of the designated disabled parking space was
less than eighteen feet long, (FAC, ¶
24, pg. 17);
(20)
The length of the adjacent access aisle was less than
eighteen feet long, (FAC, ¶ 24, pg. 18);
(21)
The width of the adjacent access aisle was less than
five feet wide, (FAC, ¶ 24, pg. 18);
(22)
The slope and cross slopes of the designated disabled
parking spaces were greater than
2%, (FAC, ¶ 24, pg. 19);
(23)
The slope of the adjacent access aisle was greater than
2%, (FAC, ¶ 24, pg. 19);
(24)
The loading/unloading access aisle adjacent to the
designated disabled parking space was
essentially missing, (FAC, ¶ 24, pg. 19);
(25)
The area in front of the air/water machine had surface
slopes greater than 2%, (FAC, ¶ 24, pg. 20)
B.
Procedural
On February 10, 2023, Defendants,
Susanna Kechedzian & Trendsetters Plus, Inc. field their Demurrer to the
FAC. To date, no opposition has been filed.
II. ANALYSIS¿
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A.
Legal Standard
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A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack or from matters outside the pleading that are judicially noticeable.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the
complaint need only allege facts sufficient to state a cause of action; each
evidentiary fact that might eventually form part of the plaintiff’s proof need
not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012)
53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause
of action, the demurrer admits the truth of all material facts properly
pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966-967.) A demurrer “does not admit contentions, deductions or conclusions of
fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿
A
pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., §
430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label
the parties and claims renders the complaint so confusing defendant cannot tell
what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for
uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.)
B. Discussion
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The
Unruh Civil Rights Act, codified at Civil Code §§51 and 52, provides:
"[a]ll persons within the jurisdiction of this state are free and equal .
. . and no matter what their . . . disability [or other protected
characteristic] . . . are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments
of every kind whatsoever.” (Civ. Code, § 51.)
As
to construction-related disability actions, Code of Civil Procedure section
425.50 provides for specific requirements in Unruh Act cases, including:
“(a)(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:
. . . .
(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 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. [Emphases added.]
Addressing Defendant’s claimed
pleading deficiencies, the Demurrer first argues that there is no plain language
explanation of the specific access barriers. The Court is not entirely
persuaded by that argument. The words “slope” and “maximum” and “barely visible
lines” and “slip resistant” and “path” and “directional signage” and
“off-street unauthorized parking sign – not posted” and “sign missing” and
“abrupt changes in level” and “uneven ground surface” and “faded paint” and
“width of designated disabled parking space” and “parking space surface
identification” seem plain language enough to the Court. However, the phrases
“accessible travel route” and “route/path of travel – cross slopes” and
“accessible space” and “access aisle” are terms of art that could and should be
defined by using plain language in an amended pleading in order to conform
with the Legislature’s requirement in § 425.50(a)(1) for these types of
disability access lawsuits.
Second,
Defendant argues that the FAC does not sufficiently allege the way in which the
barriers denied Plaintiff full and equal use or access, or in which it deterred
him, on each particular occasion. The Court disagrees. Almost all twenty-five
(25) claimed violations indicate how the barriers denied Plaintiff full and
equal use or access, and ways in which the violations deterred him. The only
violation that does not, is violation of 2010 CBC § 1129B.4; (Off-Street Unauthorized Parking
Sign – Size of Sign) noting the tow away sign(s) (signs stating that
“UNAUTHORIZED VEHICLES PARKED IN DESIGNATED ACCESSIBLE SPACES … WILL BE TOWED
AWAY”) must be a minimum size of seventeen inches (17") by twenty-two
inches (22"), here the compliant signage is/was not provided.
There
are currently no reported state cases determining the sufficiency of
allegations under the heightened pleading standard set forth in Section 425.50.
However, several federal cases discuss the sufficiency of allegations,
including Whitaker v. Tesla Motors, Inc. (2021) 985 F.3 1173, a 9th
Circuit case, which this Court finds persuasive. In Tesla, the Court
considered whether the plaintiff’s allegations that the defendant had violated
Title III of the ADA and the Unruh Act were sufficiently pleaded. (Id.
at p. 1175.) The plaintiff alleged that he encountered inaccessible service
counters that denied him full access to the Tesla dealership and created “difficulty
and discomfort” as a result. (Id. at p. 1174.) In affirming the lower
court’s determination that the complaint failed to allege sufficient facts, the
9th Circuit found the plaintiff’s allegations that the defendant “failed to
provide accessible service counters,” that he “personally encountered” those
counters, and that he was denied full and equal access did little more than
recite the elements of an ADA claim and fell short of putting the defendant on
notice as to how the counters prevented the defendant from full and equal
access to the facility. (Id. at p. 1177.) The Court stated: 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? Without this sort of detail, the district court and Tesla were left in
the dark about how the service counters denied [the plaintiff] from full and
equal enjoyment of the premises.” (Id.) In a footnote, the 9th Circuit
also stated that the Unruh Act is coextensive with the ADA and thus, their
analysis of the ADA claim applies equally to the Unruh Act claim. (Id.
at p. 1175, fn. 2.)
Here,
the Court recognizes that Plaintiff’s FAC provides such detail. Each alleged
violation indicates how Plaintiff was denied equal access because of the
barrier, or how he was deterred because of the barrier.
Third,
Defendant asserts that pursuant to § 425.50(a)(4)(A)(2), that Plaintiff was
required to disclose that he has filed thirty-six (36) cases as of this writing
subsequent to filing the present case. The Court agrees, and does not find such
facts present in Plaintiff’s FAC.
Fourth,
Defendant argues that Plaintiff failed to indicate why he was in the geographic
neighborhood and also why he chose this particular business, or whether he
purchased anything.
Here, the Court does not find
present any indication that Plaintiff purchased anything. However, the Court
also notes that Plaintiff’s FAC claims that he “visited the
Property during the relevant statutory period on three (3) separate occasions,
in July 2020 and August 2020, to patronize the business. (FAC, ¶ 13.) Plaintiff
also claims that he intends and plans to visit the Property again soon.
However, he asserts that currently, he is reasonably deterred from returning
the Defendants’ public accommodation facilities because of the knowledge of
barriers to equal access, relating to Plaintiff’s disabilities, that continues
to exist at the Property. (FAC, ¶ 26.) With a high-frequency litigant, the
Court finds that the statute requires more than a mere vague and conclusory
statement “to patronize the business” is sufficient enough to indicate why Plaintiff
was in the geographic location, and why he chose said business. If Plaintiff elects to amend, he must allege
this element with greater detail and specificity.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Demurrer is SUSTAINED,
with 20 days leave to amend. Moving
party to give notice. ¿¿