Judge: Ronald F. Frank, Case: 22TRCV00324, Date: 2023-02-17 Tentative Ruling
Case Number: 22TRCV00324 Hearing Date: February 17, 2023 Dept: 8
Tentative Ruling
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HEARING DATE: February 17, 2023¿
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CASE NUMBER: 22TRCV00324
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CASE NAME: James Shayler v. Manhattan Place,
Inc., et al.
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MOVING PARTY: Defendant, Manhattan Place, Inc.
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RESPONDING PARTY: Plaintiff, James Shayler
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TRIAL DATE: None
set
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MOTION:¿ (1) Demurrer
Tentative Rulings: (1) Overruled
I. BACKGROUND¿
The Court previously ruled on the earlier
version of plaintiff’s pleadings in November of 2022, so the Court will refrain
from detailing here its overview of the parties’ familiarity with each other
and the Court’s perspective on disability access cases involving high-frequency
litigants.
A. Factual¿
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On December 29, 2022, Plaintiff filed a Second Amended
Complaint (“SAC”) against Manhattan Place, Inc. (“Defendant”), and DOES 1
through 10 for violations of the Unruh Civil Rights Act. Defendant is
alleged to be the owner of a shopping center located on 1121-1145 Artesia
Blvd., Manhattan Beach, CA 90266 (the “Shopping Center”). Lindberg Nutrition
(the “Business”) is a specialty store that sells vitamins, herbs and dietary
and sports supplements, and is one of the tenants of Defendant, located within
the Shopping Center. On April 11, 2022, approximately
two weeks before filing this suit, Plaintiff alleged that he went to the
Business, found the parking lot had an accessible area for disabled persons but
the slope of the paved lot allegedly violated Americans with Disability Act
(“ADA”) and its Accessibility Guidelines (“ADAAG”). Plaintiff alleges in the verified SAC that he
personally experienced difficulty due to these violations, and was denied full
and equal access to the Business. (SAC ¶ 24.)
As previously alleged in the FAC,
Plaintiff’s “qualified disabilities” include: (1) Impaired musculoskeletal and
neurological systems – which result in weakness, fatigue, pain, and loss of
strength in his arms, hands, and legs; (2) Multiple levels of diffuse disc
bulges and a pinched nerve in his spine, which causes him increased pain,
sciatica, and limits his ability to function an his mobility, especially for
any extended period of time; (3) Inability to move due to knee replacement
surgeries; and (4) Limited use of his right arm and hand as a result of any
injury on the job as a firefighter years ago. (FAC ¶ 1.) As such,
Plaintiff claims that he qualifies to be a member of a protected class under
the ADA. As a result of these disabilities and impairments, Plaintiff can
barely grasp objects, walk, stand, ambulate, sit, or otherwise function, cannot
walk for any significant distance without having to periodically rest, and
often relies upon mobility devices to ambulate. (Ibid.)
B. Procedural
On January 19, 2023 Defendants
filed a demurrer. On February 3, 2023, Plaintiff filed an opposition. There is
no reply brief on file.
¿II. GROUNDS FOR DEMURRER
Defendant
demurs to the first and second causes of action in Plaintiff’s SAC on the
grounds that the purported Cause of Action for Violation of Unruh Civil Rights
Act still fails to state sufficient facts to constitute a cause of action
against Defendant, and that the cause of action is still uncertain, ambiguous,
and unintelligible. The Court disagrees.
III. ANALYSIS ¿
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First Cause of Action for
Violation of Unruh
In this Court’s November 23, 2022
minute order, it noted that Plaintiff’s FAC did not identify the
way in which the barrier denied him full and equal use or access. Defendant’s demurrer argues that Plaintiff’s
SAC still fails to allege sufficient facts to meet the requirement of Code of
Civil Procedure section 425.50(a)(2) for the First Cause of Action.
Here, Plaintiff’s SAC first
starts off by pleading more facts as to the Plaintiff and his disabilities. The
SAC notes that: “Plaintiff’s musculoskeletal and neurological
systems are impaired. These impairments result in weakness, fatigue, pain, and
loss of strength in his arms, hands, and legs. Plaintiff has multiple levels of
diffuse disc bulges and a pinched nerve in his spine that has caused increased
pain, sciatica, and limits his ability to function and his mobility, especially
for any extended period of time. His ability to be mobile depends on his pain
level, which is episodic in nature. Plaintiff is substantially limited in
performing one or more major life activities, including but not limited to:
walking, standing, ambulating, and/or sitting. Plaintiff has also had knee
replacement surgeries on both knees and limited use of his right arm and hand
as a result of an injury on the job as a firefighter years ago. This
substantially limits his ability to grasp objects, walk, stand, ambulate, sit,
or otherwise function. As a result of his impairments, he is subject to falls,
unsteady on his feet, cannot walk for any significant distance without having
to periodically rest, and often relies upon mobility devices to ambulate.” (SAC
¿ 1.)
Plaintiff’s
SAC also, as requested by the Court, plead further facts as to how the barriers
denied Plaintiff full and equal access. Plaintiff notes that: “The access aisle
adjacent to the van accessible parking space was too steep. Plaintiff who
relies on mobility devices to ambulate, was forced to exert himself more than
necessary which caused him difficulty, discomfort, and frustration. The
excessive slope so caused Plaintiff to be afraid of losing his balance,
falling, and becoming physically injured. Although a mere encounter with a
barrier is sufficient for a plaintiff to establish a claim under the ADA, the
harm done to Plaintiff in this case also deprived him of equal access to the
Property and Business.” (SAC ¿
24.) As such, Plaintiff has plead that he personally encountered excessive
slopes that interfered with his access to Lindberg Nutrition and that they are
related to his disability.
Defendant
argues that Plaintiff has still failed to allege sufficient facts to meet the
requirement of Code of Civil Procedure section 425.50(a)(2) because Plaintiff
does not allege what kind of mobility device he used to access the business and
how he experienced difficulty relative to the barriers and the particular
mobility devices. While the SAC does not
state which mobility device he was using on the date of the alleged incident,
the Court does not believe that makes the overall pleading defective.
Violation
of Unruh as To Other ADA Violations and FedEx Office and Yucatan Spray and UV
Tanning
In this Court’s previous minute
order, it noted that if Plaintiff intends to include violations in this case as
to stores he did not attempt to visit, he needed to make those allegations
separate from the allegations as to the one store he did intend to visit.
Defendant argues that Plaintiff
still has not alleged facts sufficient for standing, or to claim that he
personally encountered every ADA violation identified by the CASp in the SAC.
However, in opposition, Plaintiff alleges that Defendant misunderstands
the requirements of CCP §425.50(a)(2) and Ninth Circuit authority with regard
to deterrence and standing under the UCRA and ADA. Plaintiff concedes that he
did not allege that he encountered every ADA violation identified by the CASp
in the SAC; however, Plaintiff asserts that personal encounters are not
required to state a claim for deterrence. Once a plaintiff encounters one
barrier at a site, the plaintiff can sue to have all barriers that relate to
his disability removed regardless of whether he personally encountered them.
(citing Doran v. 7-11, 524 F.3d 1034 (9th Cir. 2008).)
First,
California Civil Code section 55.56(b) entitles pleading either that plaintiff “personally
encountered the violation on a particular occasion, or the plaintiff was
deterred from accessing a place of public accommodation on a particular
occasion.” Plaintiff contends that precedent is in accord that this is
sufficient. “[W]hen a plaintiff who is disabled within the meaning of the ADA
has actual knowledge of illegal barriers at a public accommodation to which he
or she desires access, that plaintiff need not engage in the ‘futile gesture’
of attempting to gain access in order to show actual injury…” (Pickern v.
Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002).)
Here,
the SAC alleges that Plaintiff was deterred by knowledge of the later
identified ADA violations that relate to Plaintiff’s disability: Plaintiff
alleges that he is aware of the additional barriers and is deterred from
returning to Defendant’s Property and the Business because of his knowledge of
the inaccessibility of the Property and Business. (SAC ¿ 44.) Further, Plaintiff asserts that “[a]fter
[he] became aware of the additionally identified ADA violations at the Property
that a CASp identified on September 17, 2022, Plaintiff was further deterred
from patronizing the Business as well as the other business at the Property.”
(SAC ¿ 44.) Additionally,
Plaintiff claims that “[w]hen he learns the Property has become fully
accessible, Plaintiff intends to return for the dual purpose of availing
himself of the goods and services offered to the public at the Business and the
other businesses at the Property, as well as to ensure that Defendant ceases
evading its responsibilities under federal and state law regarding access to
the entire Property.” (SAC ¿
44.)
Moreover,
Plaintiff alleged a duel motivation for filing the present lawsuit as an “advocate
for the civil rights of persons with disabilities and to verify whether
Defendants comply with the ADA and the UCRA.” (SAC ¿¿ 8, 11.) Plaintiff alleged that “he intends to
return to the Business for the dual purpose of availing himself of the goods
and services offered to the public and to ensure that the Business ceases
evading its responsibilities under federal and state law.” (SAC ¿ 26.)
Standing
In the
Court’s previous minute order, it noted that the Court could not readily
address the standing issue without more detailed factual allegations as to how
the slope barrier made the Property or the Business inaccessible. The Demurrer
to the SAC again raises the standing issue.
In
opposition, Plaintiff argues that Defendant misunderstands that
Article III standing does not require a plaintiff to visit the place of public
accommodation or personally encounter a barrier in order to suffer an injury in
fact. (citing Civil Rights Education and Enforcement Center v. Hospitality
Properties Trust (“CREEC”) (9th Cir. 2017) 867 F.3d 1093, 1099–1101.)
Plaintiff notes that the CREEC court affirmed that a plaintiff must allege
“continuing, present adverse effects” but can do so through either the
“deterrent effect doctrine” or by showing an intent to return “when the
non-compliance is cured.” (Id. at 1099–1100; See also Pickern,
293 F.3d at 1135 (9th Cir. 2002) (established the “deterrent effect doctrine”
for ADA standing); Doran, 524 F.3d at 1043-44 (plaintiff had standing to
challenge not just the barriers he personally encountered, but also other
barriers related to his disability that he became aware of through discovery).)
Plaintiff
further cites to Langer v. Kiser, noting that Plaintiff’s intent to
return as an advocate for the disabled or as a tester to ensure that the entire
Property becomes accessible is sufficient to confer Article III standing even
if Plaintiff is a high frequency litigant. In Langer v. Kiser (January 23,
2023), the court held: “a district court may not reject an ADA litigant’s
stated intent to return to a location simply because the litigant is a serial
litigant who brings numerous ADA cases.” (Langer v. Kiser, No. 21-55183
(9th Cir., January 23, 2023), p. 8.) To illustrate, the Court explained as
follows:
On recross, the defense attempted to
show that Langer’s intent to return to the Lobster Shop was not ‘genuine’
because he also alleged an intent to return in the other ADA complaints he
filed. But, as described previously, this reflects the type of reasoning
we unmistakably rejected in D’Lil and CREEC, in which we
instructed district courts not to question an ADA plaintiff’s standing simply
because they file numerous ADA lawsuits or are an ADA tester. (See also Gordon
v. Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir. 2009) (Gould, J.,
concurring) (“[W]e accord standing to individuals who sue defendants that fail
to provide access to the disabled in public accommodation as required by the
Americans with Disabilities Act[], even if we suspect that such plaintiffs are
hunting for violations just to file lawsuits.”)
(Langer,
at p. 24.) Further, the court stated:
Being an ADA tester is, in fact, a
legitimate reason to go to a business, [internal citation omitted] and the
district court’s insinuation otherwise is legally flawed. Visiting the property
to identify potential ADA violations is consistent with having a credible intent
to return[.]
(Id. at
19.) Here, Plaintiff has conceded that he is a high frequency litigant.
However, Plaintiff also alleges that he learned of the other ADA violations at
the Property, and intends to return as a tester and advocate for the disabled to
ensure those violations he did not encounter are also remedied. (SAC ¶¶ 8, 11,
44.)
Further, when it comes to Defendants
arguments that the same types of excessive slope variations that Plaintiff
encountered in the First Cause of Action at the Lindberg Nutrition business
parking that caused him difficulty and harm are not specific enough for the
other same type violations that he did not encounter, but later identified as
alleged in the second cause of action, Plaintiff argues: he has mobility issues, and although he did
not identify all of the additional barriers to access in connection with in
connection with access to the Business of paragraph 38 a.-g. supra with as much
detail as a CASp, he personally encountered them when he moved from his car in
front of the Business and up the access aisle to its entrance. (SAC ¶¶ 40-41.)
Plaintiff has plead that the excessive slopes caused Plaintiff difficulty. (SAC
¶ 24.)
The abrupt vertical change caused Plaintiff risk of tripping and falling and
physical injury. The faded towaway signage and incorrect dimensions of the
accessible space and access aisle also affected him because he used them to
access the Business and Property.” (SAC ¿
41.) Additionally, Plaintiff claims that “[a]ll of the barriers described in paragraph
38 specifically relate to Plaintiff’s mobility disabilities because they
implicate all of the accessible parking spaces, access aisles, and accessible
routes that Plaintiff will have to use once he is no longer deterred from
visiting the Property and Business.” (SAC ¿
42.)
IV.
CONCLUSION¿
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Based on the foregoing, Defendant’s demurrer is overruled.