Judge Salvatore Sirna, Case 22PSCV00731 2023-01-18 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00731, Date: 2023-01-18 Tentative Ruling

Case Number: 22PSCV00731 Hearing Date: January 18, 2023 Dept: G

Defendant Be Liquor Inc’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Gabriela Cabrera

TENTATIVE RULING

Defendant Be Liquor Inc’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendant to file its answer to the First Amended Complaint within twenty (20) days.

BACKGROUND

This is a disability rights action. Plaintiff Gabriela Cabrera is wheelchair-bound individual and disability rights advocate. Be Liquor Inc. (Defendant) owns and operates a liquor store in Pomona on property owned by the David and Shirlee Roberts Family Trust U/D/T Dated January 3, 1992 (Roberts Family Trust). David B. Roberts and Shirlee M. Roberts (collectively, the Roberts) are trustees of the Roberts Family Trust.

On July 9, 2022, Plaintiff visited Defendant to purchase grocery items and a lottery scratch card. During the visit, Plaintiff alleges the following barriers to access existed: (1) lack of accessible route from public right-of-way, (2) inadequately marked access aisle, and (3) an obstructive post in the access aisle. On September 3, 2022, a Certified Access Specialist (CASp) alleged additional barriers including: (1) no compliant accessible parking signage, (2) slope measurement of 2.5% in accessible space, (3) slope measurement of 8.9% in accessible aisle, (4) abrupt change in level throughout accessible space that exceeds 3/8 inch, and (5) abrupt change in accessible route from public right of away measuring ½ inch deep and excessive gaps measuring 2 ½ inches wide.

On July 15, 2022, Plaintiff filed a verified complaint against Defendant, the Roberts individually and as trustees of the Roberts Family Trust, and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA). On September 6, Defendant and the Roberts filed a demurrer to Plaintiff’s complaint. Plaintiff responded by filing a First Amended Complaint (FAC) on September 19.

On October 19, 2022, Defendant filed the present demurrer. The court continued the hearing on November 30 to give Defendant’s counsel more time to adequately meet and confer.

A hearing on the demurrer, case management conference, and OSC Re: Failure to File Proof of Service are set for January 18, 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 disagrees.

As an initial matter, the court notes that counsel for Defendant has failed to comply with the court’s order dated November 30, 2022. On that date, the court continued the hearing on the present demurrer because the court found Defendant’s counsel did not meet and confer in good faith. In both the minute order and adopted tentative order filed the same date, the court ordered Defendant’s counsel to (1) meet and confer with Plaintiff’s counsel regarding the demurrer and (2) file a supplemental declaration describing such meet and confer efforts on or before January 9, 2023. Despite the court’s directive, Defendant’s counsel has failed to file a timely supplemental declaration. While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, the court notes this deficiency in overruling Defendant’s demurrer on the merits.

Accordingly, the court admonishes Defendant’s counsel to adhere to deadlines set by the court and California Rules of Court. The court also admonishes Defendant’s counsel to avoid substance-irrelevant personal attacks in counsel’s moving papers. (Reply, p. 3:1-17.)

“[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. Pro., § 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 78 actions in the last twelve months. (FAC, ¶ 10.) Plaintiff alleges Plaintiff visited Defendant’s store on July 9, 2022, as a customer and purchased grocery items and a lottery scratch card. (FAC, ¶ 11.) Plaintiff also claimed to be in the geographical area of Defendant’s store because Plaintiff’s brother “lives nearby.” (FAC, ¶ 14.) In response, Defendant argues Plaintiff did not adequately allege why Plaintiff visited Defendant’s store over “hundreds of similar businesses” in the area and “dozens of others in the Pomona area.” However, Defendant provides no authority for this heightened pleading requirement and Plaintiff’s allegation that Plaintiff was in the area due to its proximity to Plaintiff’s brother is sufficient.

Plaintiff also pleads the existence of barriers as required by Code of Civil Procedure section 425.50, subdivision (a). First, on Plaintiff’s July 9 visit, Plaintiff alleges the lack of an accessible route from the public right-of-way, an inadequately marked access aisle, and an obstructive post in the access aisle. (FAC, ¶ 15.) On September 3, Plaintiff’s alleges a CASp inspection revealed no compliant accessible parking signage, a 2.5% slope in the accessible space, an 8.9% slope in the accessible aisle, an abrupt change in the accessible space exceeding 3/8 of an inch, an abrupt change in level in the accessible route from public right-of-way measuring ½ of an inch deep and gaps measuring 2 ½ inches wide. (FAC, ¶ 16.) Plaintiff alleges these barriers force Plaintiff into “dangerous vehicular lanes” and result in “obstructions in paths of travels, rough terrain, and excessive slopes” that cause Plaintiff difficulty and deny equal access to a place of public accommodation. (FAC, ¶ 24.)

Although Defendant is correct that Plaintiff does not plead facts establishing the exact route Plaintiff took to get to Defendant’s store and whether that route was from a public right-of-way or via automobile, Plaintiff’s allegations establish barriers to full accessibility exist either way. Furthermore, to the extent Defendant attempts to contradict Plaintiff’s allegations with comparisons to other individuals with disabilities (Reply, p. 3:1-28), claims that Plaintiff’s allegations “defy logic” (Reply, p. 6:16-7:2), attempts to introduce extraneous evidence and opinion about Plaintiff’s wheelchair (Reply, p. 7:4-8:8), and introduces evidence of measurements taken by Defendant (Demurrer, p. 14:14-25), the court will not consider these arguments as the court does not weigh evidence or consider matters outside the complaint and judicially noticeable facts when reviewing a demurrer. (SKF Farms, supra, 153 Cal.App.3d at p. 905.)

Accordingly, the court OVERRULES Defendant’s demurrer.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendant to answer the First Amended Complaint within twenty (20) days.