Judge: Ronald F. Frank, Case: 23TRCV01003, Date: 2023-08-18 Tentative Ruling
Case Number: 23TRCV01003 Hearing Date: August 18, 2023 Dept: 8
¿¿
HEARING DATE: August 18, 2023¿¿
¿¿
CASE NUMBER: 23TRCV01003
¿¿
CASE NAME: Brian Whitaker v. Allynn 2 Inc., et al.
.¿¿¿
MOVING PARTY: Defendant, Allynn 2 Inc.
¿¿
RESPONDING PARTY: Plaintiff, Brian Whitaker (No Opposition)
¿¿
TRIAL DATE: None
set.¿
¿¿
MOTION:¿ (1) Demurrer¿
¿
Tentative Rulings: (1) SUSTAINED with 20 days’ leave
to amend as to how the lack of toe
clearance denied Plaintiff the ability or eat or drink without difficulty.
¿
¿¿
A. Factual¿¿
On April 3, 2023, Plaintiff, Brian
Whitaker (“Plaintiff”) filed a Complaint against Defendant, Allynn 2 Inc., and
DOES 1 through 50. The Complaint alleges the following causes of action: (1)
Violation of the Unruh Civil Rights Act; and (2) Violation of the California
Disabled Persons Act.
The Complaint is based on the fact
that Allynn 2 Inc. owned “The Baked Bear,” a store Plaintiff attended on March
13, 2023 with the claimed intention to avail himself of its goods, services,
privileges, or advantages motivated in part to determine if the Defendants comply
with the disability access laws. (Complaint, ¶ 8.) Plaintiff asserts that
pursuant to the 2010 ADA Standards for accessible Design § 306, The Baked Bear
did not have dining surfaces with enough toe clearance under the indoor dining
surfaces. (Complaint, ¶ 11.)
Defendant now files a Demurrer
against the Complaint.
¿
B. Procedural¿¿
¿
On July 21, 2023, Defendant filed a
Demurrer. To date, no opposition has been filed.
II. REQUEST FOR JUDICIAL
NOTICE
With
the filing of its Demurrer, Defendant requested this Court take judicial notice
of the following:
1. The
attached exhibits are taken from Yelp and Google Maps.
Pursuant to Evidence Code § 452(h), the Court GRANTS
this request and takes judicial notice of the above.
III. ANALYSIS¿¿
¿¿
A. Legal Standard
¿¿
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
Violation
of The Unruh Civil Rights Act
Defendant’s Demurrer argues that
Plaintiff’s Complaint fails to state a claim for violation of the Unruh Civil
Rights Act. Defendant contends that Plaintiff is under a duty to allege, in
layman’s terms, the “barriers” that denied him full and equal access, but has
failed to do so. Defendant notes that unlike the ADA, standing under the Unruh
Act is established “where a disabled plaintiff can show he or she actually
presented himself or herself to a business or public place with the intent of
purchasing its products or utilizing its services in the manner in which those
products and/or services are typically offered to the public and was actually
denied equal access on a particular occasion.” (Reycraft v. Lee (2009) 177
Cal. App. 4th 1211, 1224; see also Antoninetti v. Chipotle Mexican Grill, Inc.,
614 F.3d 971, 982 (9th Cir. 2010) (“On those visits when he was not seeking to
purchase food [from the Defendant] . . . [Plaintiff] cannot recover money
damages" under the Unruh Act.) Defendant went on to cite to three (3)
prior cases field by Mr. Whitaker where the Ninth Circuit determined
Plaintiff’s allegations were insufficient, vague, or contained only legal
conclusions.
This Court notes that under the
Unruh Civil Rights Act, a plaintiff must establish that (1) defendant
denied/aided or incited a denial of full and equal access to the services; and
that either (a) the denial was a substantial factor in the harm; or (b) the
denial was a violation of the ADA; (2) plaintiff was harmed and the violation
was a substantial factor in the harm. (CACI 3060.) Unruh provides that “a
violation of the right of any individual under the American with Disabilities
Act of 1990 shall constitute a violation of this section.” Civil Code §51(f).
“A violation of the ADA is, by statutory definition, a violation of both the
Unruh Act and the DPA.” (Cullen v. Netflix, Inc. (N.D. Cal. 2012) 880 F.
Supp. 3d 1017, 1023.) To prevail on an ADA discrimination claim, a plaintiff
must show; (1) plaintiff is disabled within the meaning of the ADA; (2)
defendant is an individual or entity that owns, leases. or operates a place of
public accommodation: and (3) plaintiff was denied public accommodations by
defendant because of his disability. (42 USCA 12188(a)(b); Molski v. M.J.
Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.) The
last element is satisfied “if there was a violation of applicable accessibility
standards.” (Moeller v. Taco Bell
Corp. (N.D. Cal. 2011) 816 F.Supp.2d 831, 847; Chapman v Pier I Imports
(US.), Inc. (9th Cir. 2011) 631 F.3d 939. 945.) Where the alleged ADA
discrimination claim is based on an architectural barrier, plaintiff must also
prove the existing facility at defendant’s place of business presents an
architectural barrier, and the removal of the barrier is readily achievable. (Parr
v. L & L Drive-Inn Restaurant (D. Haw. 2000) 96 F. Supp. 2d 1065, 1085.)
Here, Plaintiff’s Complaint alleges
that he is a California resident with physical disabilities and a member of a
protected class of persons under the Americans with Disabilities Act, that he
is substantially limited in his ability to walk, that he suffers from a C-4
spinal cord injury, is a quadriplegic, and uses a wheelchair for mobility.
(Complaint, ¶ 1.) Plaintiff’s Complaint also alleges that The Baked Bear is a
place of public accommodation. (Complaint, ¶ 9.) He also alleges that he
arrived at The Baked Bear with the intention to avail himself of its goods,
services, privileges, or advantages, but that due to the facility failing to
comply with ADA standards as it relates to wheelchair users like Plaintiff, he
was denied full and equal access because he was not able to eat or drink
without difficulty. (Complaint, ¶¶ 8, 10, 13.) Lastly, Plaintiff alleges all
barriers identified are easily removed without much difficulty or expense.
(Complaint, ¶ 19.)
The Court believes that Plaintiff
has sufficiently established standing to bring a claim for violation of the
Unruh Civil Rights Act. The previous lawsuits Defendant cites to contained
allegations like “inaccessible dining surfaces,” “inaccessible restrooms,”
“inaccessible paths of travel,” “inaccessible sales counters,” and
"inaccessible service counters.” While the Court understands why the Ninth
Circuit ruled that this type of language was insufficient, vague, and contained
only legal conclusion, the Court notes that the Complaint does exactly what the
Ninth Circuit asked for in Whitaker v. Tesla Motor Corp., 2021 U.S. App.
LEXIS 1953 (9th Cir. 2021). In Plaintiff’s current Complaint, he notes that the
dining surfaces were inaccessible because there was not enough toe clearance
under the indoor dining surfaces. (Complaint, ¶ 11.) He alleges a violation of Standard 306 of the
ADAAG standards codified in 28 CFR part 36, which constitute a legally binding regulation. (Independent Living Resources v. Oregon
Arena Corp. (D. Ore. 1998) 1 F. Supp.2d 1124.) As such, this Court holds that Plaintiff has sufficiently
alleged standing in his Complaint.
Code
of Civil Procedure § 425.50
Defendant also argues that the
Complaint further fails to provide facts sufficient to satisfy the requirements
of Code of Civil Procedure § 425.50. Under Code of Civil Procedure § 425.50,
“(a) An allegation of a construction-related accessibility claim in a
complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code,
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 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: . . . . (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.”
Here, this Court finds that
Plaintiff has stated a plain language explanation of the specific access
barrier, but is unclear as to the way in which the barrier required to be
addressed in Section 306 denied him full and equal use or access. Plaintiff notes in the Complaint that The
Baked Bear has inaccessible dining surfaces, inaccessible because there was not
enough toe clearance under the indoor dining surfaces, and alleges the
conclusion that it denied him full and equal use or access because he would not
be able to eat or drink without difficulty. (Complaint ¶13.) Defendant argues
that although Plaintiff notes that he “is substantially limited in his ability
to walk and is a quadriplegic,” (Complaint, ¶ 1) he must allege his particular
disability – his particular physical limitation as it relates to the barriers
alleged. The Court agrees. Plaintiff has not alleged in any detail how
the lack of toe clearance denied Plaintiff the ability or eat or drink without
difficulty. An amended pleading that
describes this in more detail as to how the lack of toe clearance under one or
more tables affected his ability to eat or drink “without difficulty.” The Demurrer is thus SUSTINED on this issue,
with 20 days’ leave to amend.
Next, Plaintiff concedes that he is
a high frequency litigant, and that he has filed 422 lawsuits in the 12 months
preceding this lawsuit. (CCP § 425.50(a)(4)(i).) Defendant’s demurrer argues
that Plaintiff failed to identify a specific reason as to why he chose this
particular business over others, what item he purchased or whether he purchased
anything at all, or that he genuinely intended to patronize the business. The
Court disagrees. Plaintiff alleged that on the date he attended The Baked Bear,
he was in the area around the business engaged, at least in part, in his
constitutionally protected tester activities visiting businesses in the same
manner as a potential customer to confirm their compliance with state and
federal laws, and that he visited the subject business for the purpose of
testing the facility’s compliance with accessibility laws with the intention to
use the benefits of the facility in the same manner as a customer. (Complaint,
¶¶ 26, 27.)
Injunctive
Relief
Lastly, Defendant argues that
Plaintiff does not have standing to demand injunctive relief. Plaintiff’s
Complaint alleges that he is “currently deterred from returning to The Baked
Bear due to knowledge of the existing barriers on the site.” (Complaint, ¶ 22). Plaintiff also alleges that
he “intends to return to the business to confirm accessibility of the above
conditions” (Complaint, ¶ 28), and alleges he “will return to The Baked Bear
after the conclusion of the case to avail himself of its benefits and to
confirm compliance with the disability access laws once it is represented to
him that The Baked Bear and its facilities are accessible.” However, Defendant
contends that a careful reading of the above reveals that Plaintiff alleged no
future desire to patronize Defendant’s business because Plaintiff is “acting as
a building inspector.” Defendant cites: "[For] standing to seek the
prospective relief of an injunction, a plaintiff must show a likelihood he will
be harmed in the future if the injunction is not granted. (Coral
Construction, Inc. v. City & County of San Francisco (2004) 116
Cal.App.4th 6, 17, 24) [contractor who sought to enjoin a local affirmative
action ordinance concerning bidding on public contracts, who had bid in the
past and was able and willing to bid in the future, satisfied the likelihood of
future harm requirement for standing to sue for injunctive relief].) Blumhorst
makes no allegation of a likelihood of future harm in the first amended
complaint." (Blumhorst v. Jewish Family Services of Los Angeles, 126
Cal. App. 4th 993, 1004.) Defendant suggests that Plaintiff should be ordered
to submit his alteration wish list, particularized to his disability, for him
to eat ice cream, and to aver whether he intends to return, to patronize the
422 businesses that he has sued in the past year.
The 9th Circuit has ruled that one’s status
as an ADA tester does not deprive him of standing. (Civil Rights Education and Enforcement Center
v. Hospitality Properties Trust (9th Cir. 2017) 867 F.3d 1093, 1102.) On the other hand, a more recent California 4th
Appellate District case involving an ADA tester’s proof of patronage imposed an
additional requirement of a “bona fide intent” to use, purchase, or rent the
defendant’s facility or services. (Thurston v. Omni Hotels Management
Corporation (2021) 69 Cal.App.5th 299, 309.) Thurston ruled that “we do not agree
that an Unruh Act claimant's intent or motivation for visiting the covered public
accommodation is irrelevant to a determination of the merits of his or her
claim.”)
Defendant cites to no authority in
submitting what Plaintiff should do to prove he intends to return to The Baked
Bear. Plaintiff’s complaint clearly states he intends to return to The Baked
Bear. As such, the Demurrer is overruled on this issue.