Judge Salvatore Sirna, Case 22PSCV01189 2023-01-24 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV01189, Date: 2023-01-24 Tentative Ruling

Case Number: 22PSCV01189 Hearing Date: January 24, 2023 Dept: G

Defendant Cogsram Inc.’s Motion to Strike Complaint for Damages

Respondent: Plaintiff Antonio Fernandez

TENTATIVE RULING

Defendant Cogsram Inc.’s Motion to Strike Complaint for Damages is DENIED.

BACKGROUND

This is a disability rights action. Plaintiff Antonio Fernandez is a physically disabled individual who uses a wheelchair for mobility. Defendant Cogsram Inc. owns and operates a Chevron gas station in El Monte. On July 26, 2022, Plaintiff visited Defendant’s gas station to “avail himself of its goods, services, privileges, or advantages.” During the visit, Plaintiff alleges the paths of travel inside the gas station’s store were narrowed to less than 36 inches wide in some places.

On October 10, 2022, Plaintiff filed a complaint against Defendant, alleging (1) violation of the Unruh Civil Rights Act (UCRA) and (2) violation of the California Disabled Persons Act (DPA).

On December 27, 2022, Defendant file the present motion. Prior to filing, Defendant’s counsel attempted to contact Plaintiff’s counsel to meet and confer via telephone on November 18, November 21, November 22, November 23, and November 25 but was unable to obtain a response. (Smith Decl., ¶ 3-7.)

A hearing on the motion is set for January 24, 2023. A case management conference and OSC Re: Failure to File Proof of Service are also set for February 22.

LEGAL STANDARD

Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

An immaterial or irrelevant allegation includes “(1) An allegation that is not essential to the statement of a claim or defense,” “(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense,” or “(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10.)

ANALYSIS

Defendant seeks to strike Plaintiff’s complaint on the grounds that Plaintiff lacks standing to bring a cause of action pursuant to UCRA or the DPA. For the following reasons, the court disagrees.

As an initial matter, the court addresses Defendant’s contention that Plaintiff’s opposition was not properly served. However, when a party files an opposition or reply that addresses the merits, that party waives the right to challenge the notice of the respective moving papers or opposition. (See Carlton v. Quint (2000) 77 Cal.App.4th 844, 697-698.) Thus, because Defendant’s reply addresses the arguments raised in Plaintiff’s opposition, Defendant has waived any challenge to notice.

“[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.) To establishing standing under the DPA, a plaintiff “must establish that he ‘presented himself’ to a ‘public place’ with the intent of ‘utilizing its services in the manner in which those . . . services are typically offered to the public and was actually denied’ admission or enjoyment (or had his admission or enjoyment interfered with) on a particular occasion.” (Ruiz v. Musclewood Investment Properties, LLC (2018) 28 Cal.App.5th 15, 24, quoting Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1224.)

In this case, Defendant argues Plaintiff failed to plead a bona fide intent to use services at Defendant’s gas station as required by Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299 (Thurston). However, like the plaintiff in Thurston, Defendant here has conflated standing requirements with the merits of Plaintiff’s claim. (Id., at p. 309.) As the court noted, “[b]eyond the pleading stage, if a plaintiff wants to prevail on an [UCRA] claim, he or she must present sufficient evidence to overcome the online defendant's argument that he or she ‘did not actually possess a bona fide intent to sign up for or use its services.’” (Id., at p. 307, quoting White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032.) At the pleading stage, a plaintiff can establish standing by simply alleging an intent to use Defendant’s services. (Id., at p. 309.)

Here, Plaintiff alleged an intent to “avail himself of [Defendant’s] goods, services, privileges, or advantages.” (Complaint, ¶ 8.) Because grounds for a motion to strike must appear from the face of the pleadings, Plaintiff’s allegation is sufficient to establish standing and Defendant’s challenge to Plaintiff’s actual intent or motivations is not proper at this stage.

Accordingly, the court DENIES Defendants’ motion to strike.

CONCLUSION

Based on the foregoing, Defendants’ motion to strike Plaintiff’s complaint is DENIED.