Judge: Ronald F. Frank, Case: 23TRCV02800, Date: 2024-02-01 Tentative Ruling
Case Number: 23TRCV02800 Hearing Date: February 1, 2024 Dept: 8
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HEARING DATE: January 30, 2024
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CASE NUMBER: 23TRCV02800
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CASE NAME: Susanne
Rose, et al. v. Ocean Ten, LLC, et al.
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MOVING PARTY: Defendants,
Ocean Ten, LLC, BD Management Company, LLC, Bryan Bohlinger, and Patricia
Padilla
RESPONDING PARTY: Plaintiffs, Susanne Rose, Nick Saba, Sr., Jeanette Rowland,
Nick Saba Jr., Shameka Fleming, Marquan Pikes, Malaya Pikes, Mashaila Pikes
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TRIAL DATE: Not Set.
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MOTION:¿ (1) Demurrer
Tentative Rulings: (1) ARGUE as to whether the
FAC actually alleges a pre-litigation request for a FEHA-like reasonable accommodation
as to the elevator and pool issues, as opposed to a request to remedy facilities
in need of repair at the apartment building.
SUSTAIN with leave to amend as to the Unruh Act cause of action
I. BACKGROUND¿¿
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A. Factual¿¿
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On August 24, 2023, Plaintiffs, Susanne Rose, Nick
Saba, Sr., Jeanette Rowland, Nick Saba Jr., Shameka Fleming, Marquan Pikes,
Malaya Pikes, Mashaila Pikes (collectively, “Plaintiffs”) filed a Complaint
against Defendants, Ocean Ten, LLC, BD Management Company, LLC, Beach
Front Property Management, Bryan Bohlinger, and Patricia Padilla, and DOES 1
through 50. On November 15, 2023, Plaintiffs filed a 53-page, 276 -paragraph First
Amended Complaint (the FAC) purporting to allege causes of action for: (1)
Breach of the Warranty of Habitability (common law); (2) Breach of the Warranty
of Habitability (statutory); (3) Breach of the Covenant of Quiet Enjoyment; (4)
Breach of Contract; (5) Private Nuisance; (6) Discriminatory Practices on
Account of Disability and Medical Condition (FEHA § 12955); (7) Violation of
the Unruh Civil Rights Act; (8) Negligence; (9) Intentional Infliction of
Emotional Distress; (10) Retaliation; and (11) Unfair Business Practices (Cal.
Bus. & Prof. Code § 17200).
The causes of action here are based on numerous
allegations, and three categories of alleged discrimination based on disability
and medical condition: (1) Elevator Outages at the Subject Property
(alleged by Susanne Rose and Nick Saba, Sr. who claim to rely on the elevator
to access their homes and community and receive emergency medical services.
Despite this, they allege that Defendants refuse to maintain the elevators and
service interruptions more than 50% of the time have increased with Ocean Ten
LLC’s new ownership and management; (2) Inoperable Pool (Plaintiffs
allege they have all been inconvenienced by the closing down of the pool
beginning in March 2022, but this has especially inconvenienced Plaintiff Marquan
Pikes who is alleged to be diagnosed with schizophrenia and alleges that he
requires access to a pool to improve positive and manage negative symptoms; and
(3) Taking Away of Accessible Parking (Nick Saba Sr. notes he was
given a parking spot near the elevator because of his disability and medical
situation, but in June of 2022, Defendant Padilla took this spot aware, forcing
Nick Saba Sr. to walk a greater distance to get to and from the elevator from
his car.) (4) Retaliatory Notices to Terminate Tenancy and Refusal to Grant
Plaintiffs’ Reasonable Accommodation Request for Additional Time to Move (Plaintiffs
claim they have been served with notices to quit in retaliation for their
complaints about the uninhabitable conditions despite pleading with Defendants
to give them additional time to move because of their disabilities and medical
conditions.)
Defendants,
Ocean Ten, LLC, BD
Management Company, LLC, Bryan Bohlinger, and Patricia Padilla (collectively,
“Demurring Defendants”) now file a demurrer as to the Sixth and Seventh causes
of action in Plaintiffs’ FAC.
B. Procedural¿¿
¿
On December 15, 2023, Demurring Defendants
filed this demurrer. On January 10, 2024, Plaintiff filed an opposition brief.
On January 19, 2024, Demurring Defendant filed a reply brief.
II. GROUNDS FOR DEMURRER
Demurring
Defendants demur to Plaintiff’s Sixth (FEHA) and Seventh (Unruh Act) Causes of
Action on the grounds that they argue they fail to state facts sufficient to
constitute a cause of action against Demurring Defendants.
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
Discriminatory
Practices on Account of Disability and Medical Condition
Housing discrimination against people with
disabilities is prohibited under California law by the Fair Employment and
Housing Act (“FEHA”). (Gov. Code § 12900 et seq.) Under FEHA, it is
an unlawful practice to refuse “to make reasonable accommodations in rules,
policies, practices, or services when these accommodations may be necessary to
afford a disabled person equal opportunity to use and enjoy a dwelling.”
(Gov. Code §§ 12927(c)(1), 12955.)
Pursuant to FEHA, “disability” includes “any physical or mental disability as
defined in Section 12926.” (Gov. Code § 12926.)
Further, “[i]t shall be unlawful: (a)¿For
the owner of any housing accommodation to discriminate against or harass any
person because of the race, color, religion, sex, gender, gender identity,
gender expression, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, veteran or military
status, or genetic information of that person.” (Gov. Code, § 12955, subd.
(a).) “‘Housing accommodation’ means any building, structure, or portion
thereof that is occupied as, or intended for occupancy as, a residence by one
or more families and any vacant land that is offered for sale or lease for the
construction thereon of any building, structure, or portion thereof intended to
be so occupied. ‘Housing accommodation’ includes a building, structure, or
portion thereof that is occupied, or intended to be occupied, pursuant to a
transaction facilitated by a hosting platform, as defined in Section 22590 of
the Business and Professions Code.” (Gov. Code, § 12927, subd. (d).)
“In order to establish discrimination
based on a refusal to provide reasonable accommodations, a party must establish
that he or she (1) suffers from a disability as defined in FEHA, (2) the
discriminating party knew of, or should have known of, the disability,
(3)¿accommodation is necessary to afford an equal opportunity to use and enjoy
the dwelling, and (4) the discriminating party refused to make this
accommodation.” (Auburn Woods I Homeowners Assn. v. Fair Employment
& Housing Com. (2004) 121 Cal.App.4th 1578, 1592 (“Auburn Woods”).) Moreover, “[t]he
legislature sought to make the FEHA ‘ “substantially equivalen[t]” to the
Federal Fair Housing Act [(the FHA)] and its amendments (Konig v. Fair
Employment and Housing Com’s (2002) 28 Cal.4th 743, 749; see also Broadmoor
San Clemente Homeowners Assn. v. Nelson (1994) 25 Cal.App.4th 1, 6-7, 8.)
As such, “[c]ourts often look to cases construing the FHA,…when interpreting
FEHA.”(Auburn Woods, supra, 121 Cal.App.4th at 1591.) Demurring
Defendants fail to cite to any case law that establishes that Defendant need
cite to actual discrimination in order to maintain a cause of action for
violation of FEHA for failure to provide reasonable accommodation. In fact even
the one case cited to by Demurring Defendants under this section, Auburn
Woods, involved a facially neutral law, but did not even consider this
issue when analyzing the FEHA related claims, as “actual discrimination” is not
part of the analysis.
Elevator
Here, Demurring Defendants argues that Plaintiffs’ FAC fails
to state sufficient facts to show actual discrimination. Demurring Defendants
contend that the FAC is riddled with conclusory statements, but lacks
sufficient facts to show that Defendants have refused to provide plaintiffs
with the same advantages, privileges, and services as any other tenant on the
Subject Property, and fails to establish that any of the Plaintiffs are treated
differently from other tenants because of their disability. Specifically, with
the elevator, Demurring Defendants argue that failing to maintain a proper
elevator is not in itself discriminatory, and instead is a habitability issue.
Demurring Defendants also assert that Plaintiffs have failed to provide
sufficient facts to show how an inoperable elevator amounts to conduct intended
to discriminate against Plaintiffs and that their disabilities were the motivating
factor of this conduct.
Demurring Defendants’ argument that the failure to maintain
working elevators in an alleged multi-story apartment building fails to allege actual
discrimination is not persuasive to this Court. A FEHA claim can be stated without actual
discrimination but can be alleged for failure to provide reasonable
accommodation. If one of the plaintiffs were wheel-chair
bound and lived on the 4th story of the building, California law and
the federal FHA would require the landlord or property owner to make an
accommodation to account for such a plaintiff’s inability to ascend stairs such
as relocating that plaintiff to a ground-floor unit. As noted above, the requirements to state a
claim for failure to provide reasonable accommodations are: (1) Plaintiff
suffers from a disability as defined in FEHA, (2) the discriminating party knew
of, or should have known of, the disability, (3)¿accommodation is necessary to
afford an equal opportunity to use and enjoy the dwelling, and (4) the
discriminating party refused to make this accommodation.” (Auburn Woods, supra,
121 Cal.App.4th at 1592.) A plaintiff can meet the burden to show discrimination
for denial of an accommodation based on a disability by showing “a failure to
remove architectural barriers ... in existing facilities ... where such removal
is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv); see Medina-Rodriguez
v. Farmacia Medina Inc. (D.P.R. 2017) 302 F.Supp.3d 479, 484.) Arguably, the lack
of a functional elevator in a multi-story building is akin to an architectural barrier to access, but plaintiff must allege
and prove removal or the barrier is “readily achievable” and, if not readily
achievable because of great difficulty or expense, must adopt alternative
methods” for making access by disabled individuals achievable. (See Californians for Disability Rights v.
Mervyn's LLC (2008) 165 Cal.App.4th 571, 577.) Do plaintiffs contend this case is akin to a
retail store architectural barrier case?
A recent unpublished Second District decision appears to have applied a similar
analysis to a claim of an inoperable elevator in a multi-story medical office
building. (See Camden Systems, LLC v.
Young (Cal. Ct. App., Jan. 10, 2024, No. B321117) 2024 WL 106910, at *5 (allegations
that owner of 2-story office building knew elevator was inoperable where repair
was readily achievable may state a claim under the ADA brought by disabled person.) A recent federal district court case upheld a
disabled plaintiff’s claim for discrimination under the ADA on the federal equivalent
of a demurrer upon allegations that the defendant’s employee (a court clerk)
calendared the Plaintiff lawyer’s appearance on the 4th floor of the
courthouse despite allegedly knowing there was no elevator access to the 4th
floor after the plaintiff appeared at the Clerk’s office on crutches. (Barrilleaux v. Mendocino County (N.D.
Cal. 2014) 61 F.Supp.3d 906, 916-17.)
A physical disability includes “having any physiological
disease, disorder, condition, cosmetic disfigurement, or anatomical loss that
does both of the following: (A) Affects one or more of the following body
systems: neurological,
immunological, musculoskeletal, special sense organs, respiratory, including
speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic
and lymphatic, skin, and endocrine; and (B) Limits a major life activity.”
(Gov. Code § 12926(m), et seq.) Limits on major life activities include “[a] physiological
disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits
a major life activity if it makes the achievement of the major life activity
difficult.” (Gov. Code § 12926(m)(ii).) Further, the statute notes that the
term “major life activities” shall be broadly construed and includes physical,
mental, and social activities and working. (Gov. Code § 12926(m)(ii).)
Here,
Plaintiffs’ FAC establishes that each Plaintiff, including Plaintiffs’ Rose and
Saba Sr. (who predominantly apply to the discrimination regarding the elevator)
have alleged that they suffer from a physical disability under FEHA that
significantly impair their major life activities. (FAC, ¶¶ 6, 8, 51, 82, 209.)
Plaintiffs also allege that Defendant knew of their disabilities as counsel for
Plaintiffs have notified Defendants of elevator malfunctions and their impacts
on Rose and Saba Sr, and other tenants with disabilities. (FAC, ¶¶ 90, 97, 108,
113.) The Plaintiffs allege they have requested reasonable accommodations, but the
FAC does not allege what the requested “accommodations” were. (FAC, ¶¶ 6, 113.)
Additionally, Plaintiffs assert that these accommodations are necessary to
afford them equal opportunity to use and enjoy the dwelling. (FAC, ¶ 116.) Plaintiffs
allege Defendants failed to provide reasonable accommodations for Plaintiffs
Rose and Saba Sr., and other tenants with disabilities if the elevators are out
of service. (FAC, ¶¶ 115, 210, 214.)
However, neither Saba Sr. nor Rose is specifically
alleged to be unable to ascend or descend stairs because of their alleged disabilities,
other than in Paragraph 82 which vaguely alleges that being forced to walk up
the stairs “has been a danger of [Rose and Saba Jr.’s] health and welfare.” Amended Paragraph 86 and its sub-paragraphs allege
impacts they have suffered during elevator outages, and paragraph 90 vaguely alleges
that “plaintiffs and their counsel gave notice to Defendants” of the effect
that a non-functional elevator had on their medical conditions, that Defendants
had notice that being forced to walk upstairs was dangerous to their health or
welfare, but not that any of them sought an accommodation regarding the
elevator outages. Do plaintiffs contend
that the “accommodation” request was notice to “take steps to provide a
functional elevator system” as stated in FAC, at 17:28-18:3? How
is that an “accommodation?”
Plaintiffs’ cause of action for violation
of FEHA via failure to provide reasonable accommodation as to the elevator use suffers
from these shortcomings, i.e. that a FEHA-like request for an accommodation was
ever made as distinct from notice of a problem that needed correction. The Court will entertain oral argument as to whether
Plaintiffs believe an accommodation cause of action can be alleged if the plaintiff
only alleges notice to fix or remedy the claimed policy or practice.
Nonetheless, the Court would be remiss in
not making a brief comment as to the demurring papers’ arguments that elevator
functionality affects all tenants alike and that use of stairs is a form of
exercise that is beneficial to all individuals. Such flippant factual assertions are outside the
four corners of the Complaint as well as being insensitive to persons with
ambulation disabilities.
Pool Access
Next, Demurring Defendants argues that Plaintiffs’ FAC fails
to state sufficient facts to show actual discrimination as to (specifically)
Marquan Pikes’ use of the pool. Demurring Defendants contend that the FAC is
riddled with conclusory statements, but lacks sufficient facts to show that
Defendants have refused to provide plaintiffs with the same advantages,
privileges, and services as any other tenant on the Subject Property, and fails
to establish that any of the Plaintiffs are treated differently from other
tenants because of their disability. Specifically, with the pool access,
Demurring Defendants argue that taking away access to the pool that was
accessible at move-in is another habitability issue, and that the FAC fails to
allege facts to show that only Plaintiffs were affected or that the pool
closure was done solely to prevent Marquan’s access. As noted above, the Court
is not persuaded by these arguments and their lack of legal support.
Here, the FAC alleges that Marquan Pikes suffers from
paranoid schizophrenia, a disability covered under FEHA, which limits his major
life activities. (FAC, ¶¶ 9, 51, 82.) Plaintiffs also allege that Defendants
knew of his disability (FAC,
¶¶ 104), through his mother and co-Plaintiff Fleming’s repeated information to
Defendant, Padilla of this fact. (FAC, ¶ 104.) Plaintiffs also allege that
Marquan’s mother informed Defendants of his needed access to the pool as an
accommodation. (FAC, ¶ 104, 119.) Plaintiffs assert that this is a reasonable
accommodation because Plaintiff, Marquan Pikes requires access to a pool to
improve positive and manage negative symptoms, increase quality of life and
cognition as a person living with schizophrenia. (FAC, ¶ 102.) Nonetheless,
Plaintiffs contend that Defendant ignored the complaints, and continued the
pool closure (FAC, ¶ 105) in retaliation against Plaintiffs.
As with respect to the elevator use, the Court is puzzled as
to whether the FAC actually alleges any request for a FEHA-like accommodation
as opposed to a demand to re-open access to the pool. The Court invites argument as to whether the FEHA
cause of action as to the elevator and pool issues is or is not an
accommodation cause of action, which is a separate ground for a FEHA claim form
a direct or actual discrimination claim, and whether the Complaint alleges a
pre-litigation request for a reasonable accommodation as distinct from a
request to remedy a facility or utility in need of repair.
Accessible Parking
Demurring
Defendants do not demur as to this issue regarding taking away Saba Sr.’s
accessible parking (near the elevator).
Extended Move-Out Time
Demurring Defendants allege that the
FAC lacks sufficient facts to prove Defendants did not provide a reasonable
accommodation to extend the 60-day move-out date for certain plaintiffs. The
FAC states Plaintiffs were served with notices to quit in retaliation for their
complaints about the uninhabitable conditions. (FAC, ¶ 106.) Each Plaintiff
alleges that they requested reasonable accommodation by begging and pleading
with Defendants to give them additional time to move because of their
disabilities and medical conditions. (FAC, ¶ 107.) On the face of the FAC,
Plaintiffs include quotations from letters written by Defendant Saba Sr.
requesting additional time to move out because of his and his son’s (Saba Jr.)
disabilities. (FAC, ¶¶ 109-112.) Plaintiffs assert that this additional time to
move was a reasonable accommodation request on account of their handicaps.
(FAC, ¶ 119.) However, Plaintiffs assert that Defendants, through their
actions, have coerced, intimidated, harassed, retaliated against, threatened,
or interfered with Plaintiffs in the exercise or enjoyment of their protected
rights.
Plaintiffs have alleged in
conclusory way their request for time extensions were denied. The Demurrer asserts Plaintiffs are still
living in the premises. The Demurrer’s
factual allegations that Plaintiffs have not yet moved out is beyond the four
corners of the FAC, but it appears the Opposition concedes this factual
point. As such, it does not seem as
though the accommodation was denied (a required element on a FEHA cause of
action.) Plaintiffs argue in the Opposition that they need not allege they
moved as part of their accommodation claim. While the Court agrees, the Court
disagrees that the pleading is uncertain and requires amendment to state a
valid cause of action. Paragraph 111 alleges a concession by Saba Sr. that
Bryan engaged in an interactive process and asked Plaintiff to suggest a
move-out date. Paragraph 112 alleges
that Plaintiff’s counsel requested a 12-month extension, which may stretch the
limits of what might be considered a “reasonable” accommodation request beyond a
60-day notice period. The only
allegation that may support this issue is Plaintiffs’ 131 paragraph stating
Defendants initiated a retaliatory eviction action against the Fleming/Pikes
and Saba/Rowland households.
The Court requires oral argument as
to whether this allegation, and the allegations on the face of the FAC are
sufficient to maintain a cause of action for violation of FEHA as to this
issue.
Violation of
the Unruh Civil Rights Act
“The
Unruh Act provides: ‘All persons within the jurisdiction of this state . . . no
matter what their . . . disability . . . are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.’ (Civ. Code, § 51, subd. (b).) In
order “[t]o prevail on [a] disability discrimination claims under [§ 51(b) of]
the Unruh Civil Rights Act, [a] plaintiff must establish that: (1) he was
denied the fill and equal accommodation, advantages, facilities, privileges, or
services in a business establishment; (2) his disability was a motivating
factor for this denial; (3) defendants denied plaintiff the full and equal
accommodations, advantages, facilities, privileges, or services; and (4)
defendants’ wrongful conduct caused plaintiff to suffer injury, damage, loss or
harm.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 667-72 (“Munson”).)‘A
plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a
violation of the ADA (Civ. Code, § 51, subd. (f)); or (2) denial of access to a
business establishment based on intentional discrimination.’” (Martinez v.
Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1035, review denied (Nov.
9, 2022), quoting Martinez v. San Diego County Credit Union (2020) 50
Cal.App.5th 1048, 1059.)
“Civil
Code section 51, subdivision (f) states: ‘A violation of the right of any
individual under the federal [ADA] shall also constitute a violation of this
section.’ The ADA provides in pertinent part: ‘No individual shall be
discriminated against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who …
operates a place of public accommodation.’ 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, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations.’” (Baughman v. Walt Disney
World Co. (2013) 217 Cal.App.4th 1438, 1446.)
A
plaintiff bringing a claim under the Unruh Civil Rights Act generally, “must
‘plead and prove intentional discrimination in public accommodations in
violation of the terms of the Act.’” (Greater L.A. Agency on Deafness, Inc.
v. Cable News Network, Inc., (9th Cir. 2014) 742 F.3d 414, 425)(quoting, Munson,
supra, 46 Cal.4th at 668.) As such, “a plaintiff must therefore allege, and
show, more than the disparate impact of a facially neutral policy.” (Ibid.)
In rejecting a disparate impact test under the Unruh Act, the California
Supreme Court has held that the language of the statute and its treble damages
provision “imply willful, affirmative misconduct on the part of those who
violate the Act.” (Koebke v. Bernardo Heights Country Club (2005) 36
Cal.4th 824, 853.)
Demurring
Defendants argue
that the FAC lacks sufficient allegations that they intentionally discriminated
against Plaintiffs. Here, the Court observes the following allegations that
allege intentional discrimination: (1) “The discriminatory actions of
Defendants were intentional, willful, and taken in disregard of the laws of the
State of California because Defendants were put on notice, orally and in
writing, about Plaintiffs’ disabilities and medical conditions.” (FAC, ¶ 121);
(2) “The discriminatory actions of Defendants were intentional, willful, and
taken in disregard of California ad federally protected rights of Plaintiffs…”
(FAC, ¶ 129); (3) “Defendants also discriminated against Plaintiffs because for
a prolonged period, Defendants unreasonably and intentionally prohibited
Plaintiff Marquan Pikes from using the pool knowing full well that being in the
pool was required to manage his disability and medical condition.” (FAC, ¶
211); (4) “The acts and omissions of Ocean Ten LLC and BD Management constitute
intentional discrimination against Plaintiffs under the Unruh Civil Rights
Act.” (FAC, ¶ 229); and (5) “Ocean Ten LLC and BD Management have been on
notice of the disabilities of Saba Sr., Rose, and Marquan at least since
December 2021. Ocean Ten LLC and BD Management acted either with intent to
violate Plaintiffs’ rights or with deliberate indifference to those rights.”
(FAC, ¶ 228.)
Demurring Defendants rely on Coronado
v. Cobblestone Village Community Rentals, 163 Cal.App.4th 831 (“Coronado”).
Demurring Defendants
assert that Coronado is instructive as the plaintiff there had an injury
more egregious to the Plaintiff in this case, and the Court still ruled no
Unruh Violation. The Court in Coronado found that there was no Unruh
violation where a plaintiff-tenant was
wheelchair-bound and a quadriplegic who sued his apartment complex alleging
“that the existence of the particular structural barrier (i.e., lack of a curb
ramp) on the pathway outside the apartment denied his right to full and equal
access to public accommodation.” (Coronado, supra, 163 Cal.App.4th at
840.) Plaintiff alleged, in support of his Unruh Act cause of action, that the
defendants violated section 51 because certain statutes required defendants to
install the wheelchair ramp as a modification. (Id. at 841.) The
California Court of Appeal held that the plaintiff could not establish an Unruh
Act claim, but only because each specific statute applied only to places of
public accommodation, and not to residential apartment complexes. (See id. at 845-51 (“[A]
plaintiff seeking to establish a cause of action under the Unruh Civil Rights
Act or the Disabled Persons Act based solely on the existence of a structural
barrier must be able to show that the failure to remove the barrier constituted
a violation of a structural access standard set forth in other provisions of
law. In the instant case, none of the statutes that were referred to by
plaintiff as the source of such structural access standards was applicable to
the residential and common areas of the apartment complex.”). This Court notes,
the California Court of Appeal in Coronado did not hold that a
plaintiff may never plead an Unruh Act claim for reasonable accommodations
against a residential landlord, but instead, concluded that the specific
statutes on which the plaintiff relied did not permit structural access claims
against a residential housing unit. As such, the Court does not find Demurring
Defendants’ arguments based on Coronado to be particularly persuasive.
Further, as
noted above, Demurring Defendants have argued that Plaintiffs’ FAC lacks
allegations of intentional discrimination. In Plaintiffs’ opposition, they do
not dispute this argument, but instead, reference the exception to the rule,
outlined in Civil Code § 51(f) stating: “A violation of the right of any
individual under the [ADA] shall also constitute a violation of this section.”
Based on this, Plaintiffs argue that intentional discrimination is not required
for Unruh Act claims involving violations of the ADA. However, the FAC does not
contain any causes of action for violation of the ADA, and does not even
mention the ADA by name anywhere in the pleading. Instead, the only reference
of potential ADA claims are the fact that on seven (7) occasions, Plaintiffs
included a citation to a code section of the ADA at the end of a sentence in
reference to Defendants’ alleged discriminatory housing practices. (FAC, ¶¶ 49,
50, 52, 82, 114, and 130.) However, none of these citations appear in the
Plaintiffs’ causes of action, and remain only in generalized statements of the
general allegations of Plaintiffs’ FAC. Plaintiffs’ Seventh Cause of Action for
Violation of the Unruh Civil Rights Act clearly indicates in the only
identified subsection cited to is section 51(b), and not 51(f).
In the Court’s
view, it is not enough to merely allege facts in a conclusory manner and tack
on citations to ADA code sections. As such, these inclusions, on their own, do
not bar Plaintiffs from alleging intentional discrimination under the Unruh
Civil Rights Act. This Court notes that to establish a violation of
California’s Unruh Civil Rights Act independent of a claim under the Americans
with Disabilities Act (“ADA”), a plaintiff(s) must plead and prove intentional
discrimination in public accommodations in violation of the terms of the Act. (Greater
Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir.
2014) 742 F.3d 414.) Moreover, Plaintiffs’ claim need not be brought under
section 51(f) in order to be successful. Federal District Courts have recognized that
section 51(b) can encompass a claim for intentional discrimination in the form
of a failure to provide accommodation to a person with a disability. For example, in Gutierrez v.
Gonzalez, No. 2:17-cv-01906-CAS(Ex), 2017 WL 1520419, at *6 (C.D. Cal. Apr.
26, 2017), the district court found that the plaintiff-tenant sufficiently
pleaded a section 51(b) claim based on allegations that “defendants
actively retaliated against him because of his disability” when they served the
plaintiff with a 30-day notice to vacate in response to the plaintiff's request
for a companion animal as an accommodation for his disability. Id. The
district court explained that “[s]uch conduct constitute[d] ‘willful, affirmative
misconduct’ on the basis of plaintiff's protective status.” Id. (quoting Greater
Los Angeles Agency on Deafness, Inc., 742 F.3d at 425).
Further, in Wilkins-Jones v. County of
Alameda, 859 F. Supp. 2d 1039, 1049 (N.D. Cal. 2012), the plaintiff was a
pre-trial criminal detainee with mobility issues. She sued the private prison
in which she jailed, alleging that she was denied full and equal access to
accommodations, facilities, and services in violation of the Unruh Act. (Wilkins,
supra, 859 F. Supp. 2d at 1051.) Specifically, the plaintiff pleaded facts
showing that as a result of the defendants' actions, she had difficulties
accessing the jail's facilities, such as beds, toilets, showers, walkways, and
benches. (Ibid.) The court found that the plaintiff alleged a
denial of full and equal accommodations, facilities or services as required
by section 51(b). (Id. at 1050.) However, the court
ultimately dismissed the section 51(b) claim because the plaintiff
could not plead sufficient facts to establish an inference of intentional
discrimination on the facts of that case. (Id. at 1051-53.)
Here, Plaintiffs are not barred from
moving on a cause of action for violation of the Unruh Civil Rights Act for intentional
discrimination over failure to accommodate. However, based on the facts
alleged, Plaintiffs’ conclusory allegations of “intentional discrimination” do
not suffice when the complained of actions apply to tenants generally.
Plaintiffs note in their FAC that Defendants’ residential housing provided
approximately 170 apartment-style units. (FAC, ¶ 2.) It appears, based on the
face of the FAC, that the elevators and pool were inoperable or closed to the
tenants who occupy the other 170 apartment-style units as well as Plaintiffs.
The FAC does not allege that only Plaintiffs use of the elevator or pool was
prohibited. Without
allegations that Defendants closed the pool or failed to maintain the elevators
because of Plaintiffs’ disabilities, Plaintiffs may not maintain a cause of
action for Violation of the Unruh Civil Rights Act based on access to the elevators
or pool. As such, the demurrer as to this cause of action for this claimed
intentional discrimination is SUSTAINED with twenty (20) days leave to amend.
Accessible Parking & Extended Move Out
Time
As with the Demurrer to the Sixth Cause of Action, Demurring
Defendants do not appear to raise any arguments on demur as to this issue
regarding taking away Saba Sr.’s accessible parking (near the elevator). Demurring Defendants also do not bring up an
argument with respect to the seventh cause of action as it pertains to extended
move out time.