Judge: Salvatore Sirna, Case: 22PSCV00319, Date: 2023-05-23 Tentative Ruling

Case Number: 22PSCV00319    Hearing Date: May 23, 2023    Dept: G

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

Respondent: Plaintiff Joshua Hartley

TENTATIVE RULING

Defendant Haat Investments, LLC’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED with ten (10) 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 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 January 24, 2023, the court sustained a demurrer by Defendant to Plaintiff’s FAC with leave to amend.

On February 17, 2023, Plaintiff filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action. On April 17, Defendant filed the present demurrer. Prior to filing the demurrer on March 22, Defendant’s counsel telephonically met and conferred with Plaintiff’s counsel but was unable to come to an agreement. (Sahelian Decl., ¶ 3.)

A hearing on the demurrer is set for May 23, 2023, with a case management conference set for June 13.

ANALYSIS

Defendant demurs to Plaintiff’s SAC 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 SUSTAINS Defendant’s demurrer to Plaintiff’s SAC with leave to amend.

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.) “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.)

“[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).)

Discussion

The court previously sustained Defendant’s demurrer to Plaintiff’s FAC on the grounds that (1) Plaintiff failed to allege the type of mobility device used during the visit to the liquor store and (2) Plaintiff failed to allege how the barriers denied Plaintiff access to the liquor store. (1/24/2023 Ruling, p. 2-3.)

The court notes that Plaintiff’s SAC still fails to identify Plaintiff’s mobility device and Plaintiff’s opposition admits Plaintiff inadvertently failed to include this fact.

Accordingly, Defendant’s demurrer to Plaintiff’s SAC is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s SAC is SUSTAINED with ten (10) days leave to amend.