Judge Salvatore Sirna, Case 22PSCV00319 2023-01-24 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00319, Date: 2023-01-24 Tentative Ruling

Case Number: 22PSCV00319 Hearing Date: January 24, 2023 Dept: G

Defendant Haat Investments, LLC’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Joshua Hartley

TENTATIVE RULING

Defendant Haat Investments, LLC’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with twenty (20) days leave to amend.

BACKGROUND

This is a disability rights action. Plaintiff Joshua Hartley is a physically disabled individual who relies on mobility devices, including a wheelchair, to ambulate. Defendant Haat Investments, LLC owns commercial real property in Glendora.

On November 3, 2021, Plaintiff visited a liquor store on Defendant’s Glendora property to purchase a beverage. During the visit, Plaintiff alleges the following barriers to access existed: (1) a built-up curb ramp that projects from sidewalk into the access aisle in excess of maximum grade allowed by 2010 and 1991 ADA Standards for Accessible Design and (2) an obstructive wheel stop positioned within the access aisle. On August 9, 2022, a Certified Access Specialist (CASp) alleged additional barriers including: (1) van accessible space near liquor store that contains slope measuring as high as 4.3%, (2) van accessible space near liquor store with cross-hatching measuring 43 inches and no contrasting paint, (3) closest accessible space to liquor store contains slope measuring between 2.7% and 4.2%, (4) curb ramp from accessible aisle near liquor store contains slopes measuring as high as 2.8%, (5) van accessible space near laundromat has cross-hatching measuring between 37 inches and 43 inches, (6) accessible space closest to laundromat contains slope measuring between 3.6% and 15%, (7) accessible route from public right of way contains slope measuring 6.6% with no handrails at ramp adjacent to liquor store, (8) accessible route from public right of way contains cross-slope measuring between 2.3% and 2.8% between suite 344 and the Cleaners, (9) accessible route from public right of way contains slope measuring between 6.1% and 8.2% with no handrails at ramp adjacent to Salon Centric, (10) accessible route from public right of way contains slope measuring between 6.1% and 7.5% with no handrails at ramp adjacent to laundromat, (11) curb ramp maximum cross slope measuring between 3.2% and 4.7% on left ramp run, (12) curb ramp from accessible aisle closest to laundromat has slopes measuring between 3.7% and 6.3%, and (13) curb ramp from accessible aisle closest to laundromat contains slopes measuring as high as 3.4% on right ramp run.

On April 1, 2022, Plaintiff filed a verified complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA). On November 28, Plaintiff filed a First Amended Complaint (FAC) against the same defendants alleging the same cause of action.

On December 28, 2022, Defendant filed the present demurrer. Prior to filing the demurrer on December 16, Defendant’s counsel telephonically met and conferred with Plaintiff’s counsel but was unable to come to an agreement.

A hearing on the demurrer and case management conference are set for January 24, 2023.

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 (SKF Farms).) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

ANALYSIS

Defendant demurrers to Plaintiff’s FAC on the grounds that Plaintiff fails to allege sufficient facts to establish standing for an alleged violation of UCRA. For the following reasons, the court agrees.

“[A]n individual plaintiff has standing under [UCRA] if he or she has been the victim of the defendant's discriminatory act.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175.) “[UCRA] claims are thus ‘appropriate where the plaintiff was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship.’” (Smith v. BP Lubricants USA Inc. (2021) 278 Cal.App.5th 138, 149.) A plaintiff bringing a construction-accessibility claim must provide, in plain language, (1) an “explanation of the specific access barrier or barriers the individual encountered”; (2) “[t]he 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”; and (3) “[t]he date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.” (Code Civ. Proc., § 425.50, subd. (a)(1)-(3).)

When a plaintiff is a “high-frequency litigant,” the plaintiff must also state (1) plaintiff is a high-frequency litigant; (2) the number of complaints plaintiff has filed in the prior twelve months; (3) “the reason the individual was in the geographic area of the defendant's business”; and (4) “the reason why the individual desired to access the defendant's business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.” (Code Civ. Pro., § 425.50, subd. (a)(4)(A).)

In this case, Plaintiff does not dispute Plaintiff is a “high-frequency litigant” as defined by Code of Civil Procedure section 425.50 and alleges Plaintiff has filed 31 actions in the last twelve months. (FAC, ¶ 8.) Plaintiff alleges Plaintiff visited the liquor store on Defendant’s Glendora property on November 3, 2021, as a customer and purchased a beverage. (FAC, ¶ 11.) Plaintiff also claimed to be in the geographical area of Defendant’s Glendora property because Plaintiff “was visiting family.” (FAC, ¶ 12.) In response, Defendant argues Plaintiff did not adequately allege why Plaintiff visited the liquor store on Defendant’s Glendora property instead of other similar businesses nearby. However, Defendant provides no authority for this heightened pleading requirement and Plaintiff’s allegation that Plaintiff was in the area while visiting family is sufficient.

However, while Plaintiff pled the existence of barriers as required by Code of Civil Procedure section 425.50, subdivision (a), Plaintiff did not establish the way in which the barriers denied access or deterred Plaintiff. Instead, Plaintiff vaguely alleges Plaintiff “is substantially limited in performing one or more major life activities, including but not limited to: walking, standing, ambulating, bending, and sitting.” (FAC, ¶ 1.) Plaintiff also “often relies upon mobility devices, including a wheelchair, to ambulate.” (FAC, ¶ 1.) However, Plaintiff does not allege what type of mobility device Plaintiff utilized on the day of the visit to the liquor store. Furthermore, while Plaintiff alleges Plaintiff “personally encountered barriers” at Defendant’s property and experienced difficultly, Plaintiff does not plead facts establishing how the barriers denied Plaintiff full and equal access or deterred Plaintiff. (FAC, ¶ 21, 26.) Instead, Plaintiff vaguely alleges the barriers and conditions are “related to Plaintiff’s disability.” (FAC, ¶ 21-22.) Thus, the court finds Plaintiff has not sufficiently pled facts to meet the heightened pleading requirements pursuant to Code of Civil Procedure section 425.50.

Accordingly, the court SUSTAINS Defendant’s demurrer.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with twenty (20) leave to amend.