Judge: Salvatore Sirna, Case: 23PSCV01109, Date: 2023-08-14 Tentative Ruling

Case Number: 23PSCV01109    Hearing Date: September 25, 2023    Dept: G

Defendant Irwindale 4th Street Associates LLC’s Motion to Strike Portions of the Complaint

Respondent: Plaintiff James Rutherford

TENTATIVE RULING

Defendant Irwindale 4th Street Associates LLC’s Motion to Strike Portions of the Complaint is GRANTED with ten (10) days leave to amend.

BACKGROUND

This is a disability rights action. Plaintiff James Rutherford is physically disabled and relies on mobility devices such as wheelchairs to ambulate. Defendants Garden Grove Petroleum Services (Garden Grove Petroleum) and Irwindale 4th Street Associates LLC (Irwindale 4th Street) own property located in Irwindale upon which an O Poke & Greens is located. On January 25, 2023, Rutherford visited O Poke & Greens for the purpose of making a purchase and conducting disability access testing. Rutherford alleges the parking spaces did not comply with ADA standards.

On April 14, 2023, Rutherford filed a complaint against Garden Grove Petroleum, Irwindale 4th Street, and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA).

On June 6, 2023, Rutherford dismissed Garden Grove Petroleum from this action.

On July 3, 2023, Irwindale 4th Street filed the present motion. On August 14, the court continued a hearing on Irwindale 4th Street’s motion for parties to further meet and confer. On August 16, Irwindale 4th Street’s counsel met and conferred telephonically with Rutherford’s counsel. (Link Suppl. Decl., ¶ 3.)

A hearing on the motion to strike is set for September 25, 2023, along with a case management conference.

REQUESTS FOR JUDICIAL NOTICE

Irwindale 4th Street’s request for judicial notice of the California State Legislature’s records is GRANTED pursuant to Evidence Code section 452, subdivision (c). Rutherford’s request for judicial notice of the operative complaint in Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Exhibit 5) is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Rutherford’s request for judicial notice of other trial court decisions is DENIED as they are neither precedent nor binding authority for this court. (B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 627, fn. 2.)

ANALYSIS

Irwindale 4th Street moves to strike portions of Rutherford’s Complaint requesting injunctive relief on the grounds that Rutherford is only entitled to preventive injunctive relief pursuant to Civil Code section 52. For the following reasons, the court GRANTS Irwindale 4th Street’s motion.

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.)

Discussion

In the request for injunctive relief at issue, Rutherford seeks a preliminary and permanent injunction enjoining Irwindale 4th Street and others from further violating the ADA and Civil Code section 51. (Complaint, prayer, ¶ 2.) Rutherford alleges Irwindale 4th Street and others have violated the ADA and UCRA by failing to provide ADA-compliant parking spaces and failing to remove architectural barriers to access. (Complaint, ¶ 12-14.) Rutherford limits the request for injunctive relief to Civil Code section 52 by disclaiming any relief pursuant to the Disabled Persons Act (DPA), including Civil Code sections 54 and 55. (Complaint, prayer, ¶ 2.)

Pursuant to Civil Code section 52, subdivision (c)(3), Rutherford may file a “[a] request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.” Irwindale 4th Street argues this “preventive relief” is limited to injunctions that are prohibitive and claims Rutherford cannot seek injunctive relief that would compel Irwindale 4th Street to take affirmative action in remediating the alleged ADA violations.

Irwindale 4th Street notes there is no case law interpreting the definition of preventive relief pursuant to Civil Code section 52, subdivision (c)(3). Rutherford argues there is controlling authority on this issue in the opinion of Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston).  However, Thurston only dealt with whether a plaintiff had standing to seek injunctive relief. (Id., at p. 651.)

In addition to not defining preventive relief, the court in Thurston also recognized the appellant failed to make sufficient argument and analyze the language or legislative intent of Civil Code section 52. (Id., at p. 652.) Unlike the appellant in Thurston, Irwindale 4th Street makes specific arguments regarding the statutory construction and interpretation of Civil Code section 52, subdivision (c)(3). Thus, the court finds Thurston inapposite to the present case, and now turns to the statutory interpretation of “preventive relief” in Civil Code section 52, subdivision (c)(3)

Statutory Interpretation of “Preventive Relief”

“In construing a statute, a court’s objective is to ascertain and effectuate legislative intent. [Citation.] To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) The court “give[s] the words their usual and ordinary meaning [Citation], while construing them in light of the statute as a whole and the statute’s purpose [Citation].” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529-530.) “If there is no ambiguity in the language, [the court] presume[s] the Legislature meant what it said and the plain meaning of the statute governs.” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) “Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) There is also a “general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.)

Because the UCRA does not define “preventive relief,” Irwindale 4th Street points the court to the division of the Civil Code that governs injunctions. Civil Code section 3368 states “[p]reventive relief is given by prohibiting a party from doing that which ought not to be done.” In contrast, “[s]pecific relief is given: [(1.)] [b]y taking possession of a thing, and delivering it to a claimant; [(2.)] [b]y compelling a party himself to do that which ought to be done; or, [(3.)] [b]y declaring and determining the rights of parties, otherwise than by an award of damages.” (Civ. Code, § 3367.) Based on this definition, Irwindale 4th Street argues “preventive relief” pursuant to Civil Code section 52, subdivision (c)(3) is limited to prohibitions and does not include compelling Irwindale 4th Street to make modifications to the Irwindale property.

Rutherford responds by arguing this interpretation is inconsistent with the statutory interpretation doctrine of in pari materia. Pursuant to this doctrine, “[i]dentical language appearing in separate provisions dealing with the same subject matter should be accorded the same interpretation.” (Walker v. Superior Court (1988) 47 Cal.3d 112, 132.) This doctrine applies to separate statutes “when they relate to the same person or thing, or class of persons or things, or have the same purpose or object.” (Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 175.) Rutherford argues this doctrine is inapplicable to Civil Code section 3368 as it was enacted 150 years ago and is not part of the UCRA, instead dealing with injunctive relief in general.  The court is not persuaded by this distinction.

Both sections deal with injunctive relief as Civil Code section 3368 provides a general definition, while Civil Code section 52 provides a specific application for this type of injunctive relief in UCRA actions.  This relation is supported by Civil Code section 3366 which states “[s]pecific or preventive relief may be given as provided by the laws of this state.” Because this provision contemplates the defined types of injunctive relief that will be utilized in other provisions, the court finds this definition applies to the same term used in Civil Code section 52, subdivision (c)(3). And as detailed below, the court finds the context of Civil Code section 52, subdivision (c)(3) provides further support for applying the definition in Civil Code section 3368.

Irwindale 4th Street argues its interpretation of “preventive relief” is supported by Civil Code section 51, subdivision (d) and section 52, subdivision (g). While prohibiting discrimination on the basis of protected characteristics including disability, Civil Code section 51, subdivision (d) states as follows:

“Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor shall anything in this section be construed to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.” (Civ. Code, § 51, subd. (d).)

In providing a means for the enforcement of Civil Code section 51, Civil Code section 52, subdivision (g) contains similar language that states as follows:

“This section does not require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor does this section augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.” (Civ. Code, § 52, subd. (g).)

Pointing to the first clause of each provision, Irwindale 4th Street argues these provisions establish that injunctions pursuant to Civil Code section 52 are limited to prohibiting a defendant from acting to violate the UCRA and do not allow injunctions that order defendants to affirmatively remove or deconstruct barriers to access. In opposition, Rutherford argues this remedy is allowed by the second clause of these provisions as removal of the alleged barriers are “otherwise required by other provisions of law” in the form of the ADA. Because the meaning of these clauses is unclear and ambiguous, the court must consider the legislative history of these provisions. (See Hellinger v. Farmers Group, Inc. (2001) 91 Cal.App.4th 1049, 1057 [holding courts will “examine the history and background of the statutory provision in order to ascertain the most reasonable interpretation of the measure.”].)

In 1987, the California Legislature amended Civil Code section 52 through A.B. 181 to add a subdivision (g) which stated as follows:

“Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever to any new or existing establishment, facility, building, improvement, or any other structure, or to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other provisions of the law. Nothing in this section shall require any person renting, leasing, or otherwise providing real property for compensation to modify his or her property in any way, or provide a higher degree of care for a blind or other physically disabled person than for a person who is not physically disabled.” (Compare Stats. 1986, ch. 244, § 1, with Stats. 1987, ch. 159, § 4.)

When A.B. 181 was initially proposed in the State Assembly, it did not include subsection (g). (Irwindale 4th Street RJN, Ex. 7, p. 3.) But during an April 22, 1987 hearing before the State Assembly’s Committee on the Judiciary, the California Hotel and Motel Association opposed the bill on the grounds that it was concerned A.B. 181 “may require rebuilding ‘hotels in the state to accommodate all forms of physical disabilities.’” (Irwindale 4th Street RJN, Ex. 7, p. 16.) In response to these concerns, the committee record stated “[t]he author and the proponents are reviewing amendments aimed at addressing the opponent’s concern and have stated that they will continue their efforts to reach any reasonable resolution of the problems.” (Irwindale 4th Street RJN, Ex. 7, p. 16.)

On May 27, 1987, subdivision (g) was added to A.B. 181 through amendments in the State Senate. (Irwindale 4th Street RJN, Ex. 7, p. 6-7.) In 1998, the State Legislature amended Civil Code section 52, subdivision (g) to add the language “beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law.” (Stats. 1998, ch. 195, § 4.) According to a report by the State Assembly’s Committee on the Judiciary, the purpose of this amendment was to cure confusion over the previous wording of subdivision (g) with the report stating as follows:

“This language was added when the Act was amended to reference the requirements of the Americans with Disabilities Act. It was intended to indicate that the Unruh Act itself imposed no additional requirements for construction or alteration of facilities beyond those required by other laws. However, some have misinterpreted this language to mean that under no circumstances are entities required to make structural alterations. The bill simply clarifies that while the Unruh Act itself does not require construction or alteration to any facility, building, etc., such construction or alteration may still be required by other provisions of law.” (Irwindale 4th Street RJN, Ex. 1, p. 21.)

Based on the legislative history review set forth above, the legislative intent behind UCRA was to prevent discrimination, and limiting injunctive relief to preventive relief comports with that intent. Furthermore, the court finds the interplay between the DPA and UCRA provides additional support for this interpretation. “[S]tatutory language is to be understood in context, with the whole of a statute considered when attempting to construe each part.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.) Additionally, “the Legislature does not engage in idle acts, and no part of its enactments should be rendered surplusage if a construction is available that avoids doing so.” (Ibid.)

In prohibiting discrimination based on protected characteristics like disability, UCRA incorporates the ADA and allows plaintiffs to obtain UCRA’s remedies for ADA violations. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 (Jankey).) UCRA remedies include injunctive relief, actual damages, and statutory penalties of $4,000 per violation. (Ibid.) The DPA “substantially overlaps with and complements” the UCRA by guaranteeing “people with disabilities equal rights of access ‘to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation.’” (Id, at p. 1044-1045, quoting Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674, fn. 8.) Like UCRA, the DPA also incorporates the ADA and remedies pursuant to the DPA are limited to actual damages of at least $1,000. (Id., at p. 1045.) “Recognizing the overlap between the [UCRA] and the [DPA], the Legislature expressly foreclosed double recovery.” (Ibid.)

Although Civil Code section 55 is part of the DPA, “it offers an independent basis for relief.” (Ibid.) It allows any person who is “aggrieved or potentially aggrieved” by a violation of the DPA or specific provisions of the Government Code and Health and Safety Code to obtain injunctive relief. (Ibid, citing Civ. Code, § 55.)  Unlike the damage provisions of the DPA, injunctive relief pursuant to Civil Code section 55 “is available as a cumulative remedy” in an UCRA action. (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 792.) One main difference between Civil Code section 55 and other UCRA or DPA provisions, however, is the fact that the award of attorney fees is not limited to a prevailing plaintiff and must be awarded to any party who prevails. (Jankey, supra, 55 Cal.4th at p. 1047.)

Unlike Civil Code section 52, subdivision (c)(3), injunctive relief pursuant to Civil Code section 55 is not limited to preventive relief. But, Rutherford’s interpretation would render this provision superfluous as Rutherford could simply enjoin and seek affirmative remediation of technical ADA violations pursuant to Civil Code section 52, subdivision (c)(3) without the risk of incurring Irwindale 4th Street’s attorney fees if Rutherford fails. Ultimately, the specific accessibility protections and availability of injunctive relief in the DPA provide further support for finding Civil Code section 52’s preventive relief is limited to prohibiting violations.

Lastly, the court acknowledges UCRA’s protections are to be broadly interpreted. The court notes that Civil Code section 52, subdivision (c)(3) allows preventive relief “as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.” This broad language, however, does not allow the court to rewrite the plain language of the statute. In this case, the court cannot ignore the fact that the Legislature used a previously defined form of injunctive relief. And as noted above, this interpretation is consistent with the other provisions of the UCRA and DPA. Thus, the court finds “preventive relief” in Civil Code section 52, subdivision (c)(3) is prohibitory and does not include specific and affirmative relief.

Availability of Preventive Relief

In opposition to Irwindale 4th Street’s motion, Rutherford contends the type of relief requested in this case is preventive and that Irwindale 4th Street’s motion is premature. The court disagrees.

“An injunction is prohibitory if it merely has the effect of preserving the subject of the litigation in status quo, while generally it is mandatory if it has the effect of compelling performance of a substantive act and necessarily contemplates a change in the relative rights of the parties at the time injunction is granted.” (Dosch v. King (1961) 192 Cal.App.2d 800, 804.) The status quo in litigation “is defined as ‘the last actual peaceable, uncontested status which preceded the pending controversy.’” (People v. Hill (1977) 66 Cal.App.3d 321, 331, quoting United Railroads v. Superior Court (1916) 172 Cal. 80, 87.)

In this case, Rutherford contends the status quo was “an accessible facility as required by law” and that preventive relief is required “to prevent the business establishment from avoiding its obligation to remove barriers.” But while Rutherford tries to artfully word this as “preventing” Irwindale 4th Street from acting, ordering Irwindale 4th Street to fulfill its obligations by removing barriers is not preventative. An order is not merely prohibitory when it “calls for the performance of an affirmative act — ripping out a building or other improvement [Citation] say, or firing one worker and rehiring another [Citation].” (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1046.) Accordingly, an order for Irwindale 4th Street to remedy alleged ADA violations by removing barriers to access does not qualify as preventative relief.

Last, Rutherford contends this motion is premature on the grounds that the specific parameters of an injunction against Irwindale 4th Street are presently unknown. The court is not persuaded by this argument, finding it lacks merit insofar as Rutherford’s Complaint does not seek to enjoin any specific conduct by Irwindale 4th Street. Instead, Rutherford’s only allegations involve the presence of noncompliant parking spaces and architectural barriers to access. (Complaint, ¶ 12-14.) Thus, as presently alleged, Rutherford’s Complaint does not support an injunction for preventive relief pursuant to Civil Code section 52, subdivision (c)(3).

Accordingly, the court GRANTS Irwindale 4th Street’s motion to strike.

CONCLUSION

Based on the foregoing, Irwindale 4th Street’s motion to strike is GRANTED.  Plaintiff shall have ten (10) days leave to amend.