Judge Stephen Morgan, Case Number: 23AVCV00124, Date: 2023-07-11 Tentative Ruling

This is an action centered around the Americans with Disabilities Act (“ADA”) and Unruh Civil Rights Act (“UCRA”). Plaintiff David Marc Greenstein (“Plaintiff”) alleges that on January 24, 2023 he went to the real property known as 4732 W. Ave M4, Quartz Hill, California 93536 (the “Property”) to visit Laurel Greenstein (“Laurel”[1]) where he encountered conditions that denied him safe access to the property, including but not limited to uneven paving and loose rocks in the parking area, no safe transition from the parking area to the house, and no ramp in the parking area. Plaintiff presents that: (1) defendant Chris Wade (“Wade”) was the owner of the Property at the time of the incident, (2) defendant Patrick J. Hunt (“Hunt” and collectively “Defendants”) was responsible for maintenance of the Property at the time of the incident, and (3) Defendants were aware of the ADA and the UCRA, but took no actions to correct the violations. Plaintiff seeks general damages for each time he had to deal with the violation, special damages to proof, injunctive relief requiring correction of all the conditions referenced so as to the bring the Property into compliance with all California and federal laws regarding access for persons with disabilities, attorneys fees, and any other relief allowed by law.

On February 02, 2023, Plaintiff filed his Complaint, alleging two causes of action. Both appear to be related to both ADA and UCRA violations.

On June 13, 2023, Defendants filed this Motion for Judgment on the Pleadings (“MJOP”).

On July 03, 2023, Plaintiff filed a Sur-Reply. There is no provision in the Code of Civil Procedure for a reply-to-a-reply, i.e., a "sur-reply." Thus, unless leave of court has been sought and granted to file a sur-reply, the procedurally correct way to deal with a sur-reply brief is to object and ask the court to disregard it. However, ultimately consideration of the sur-reply brief is within the discretion of the court. (See Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 703; City of Arcadia v. State Water Resources Control Bd. (2010) 191 Cal.App.4th 156, 180.) The Court, in its discretion, does not consider Plaintiff’s Sur-Reply. The Court also notes that had it elected to consider Plaintiff’s Sur-Reply, the filed document contains only a title page.

On July 11, 2023, the Court continued the MJOP, filing an Order After Hearing/Statement of Decision ordering supplemental briefing regarding the Property by September 01, 2023.

On August 28, 2023, Defendants filed their supplemental briefing regarding the Property.

On August 29, 2023, Plaintiff filed his supplemental briefing regarding the Property.

Standard for MJOP – A defendant may move for judgment on the pleadings only when: a motion for judgment on the pleadings may only be made on one of the following grounds: (1) the court has no jurisdiction of the subject of the cause of action alleged in the complaint; or (2) the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc. § 438(c)(1).)

A motion for judgment on the pleadings challenges the legal sufficiency of a pleading’s allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Thus, a motion for judgment on the pleadings is the functional equivalent of a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198; see also Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”].)

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22.) The parties’ ability to prove their respective claims is of no concern. (Cloud, supra, 67 Cal.App.4th 995 at 999.) Though the Court must accept the allegations of the complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions, speculation, or allegations contrary to law or [judicially noticed] facts….” (Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc. (2006) 138 Cal.App.4th 1215, 1219–20.)

Defendants’ Request for Judicial Notice No. 1 [County of Los Angeles Assessor's Parcel Map, Tract No. 11761, a true and correct copy which is attached to the Decl. of Dan T. Danet (“Danet”) as Exh. A] – GRANTED.

Defendants’ Request for Judicial Notice No. 2 [Los Angeles County Assessor Portal Summary, Assessor Identification Number 3101-024-057, a true and correct copy which is attached to the Decl. of Danet as Exh. B] – GRANTED.

Defendants’ Request for Judicial Notice No. 3 [Aerial image of 4732 W. Ave M4, Quartz Hill, California 93536 as depicted on the Los Angeles on the Los Angeles County Assessor Portal, a true and correct copy which is attached to the Decl. of Danet as Exh. C] – GRANTED.

Defendants’ Request for Judicial Notice No. 4 [County of Los Angeles, Department of City Planning, Generalized Summary of Zoning Regulations (Updated March 2020), a true and correct copy which is attached to the Decl. of Danet as Exh. C]: GRANTED.

Application – Defendants bring this MJOP as both a statutory MJOP and a common law motion for judgment on the pleadings. Common law motions may be made at any time prior to trial and even at trial. (See Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650, as modified (Aug. 7, 2002); Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 482 n.2.). The Court finds that the motion is timely.

Defendants bring three main arguments: (1) to state a claim under the ADA and UCRA, the Property must be a public accommodation; (2) Plaintiff’s Complaint fails to state with particularity any qualifying disability affording Plaintiff standing under the ADA or UCRA; and (3) Plaintiff’s Complaint fails to state with particularity any applicable code section under the 2010 ADA standards and/or California Building Code for accessible design.

Defendants first present that “[t]o state a claim under the ADA, the plaintiff must allege ‘(1) that [he or she] is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide.’ [Citation].” (MJOP 4:22-26 [citing Camarillo v. Carrols Corp. (2d Cir. 2008) 518 F.3d 153, 156].) Defendants direct the Court to United States Code (“USC”), Title 42, §12181(7) which provides a comprehensive list of places considered a “public accommodation.” Defendants assert that the Property is a “a private standalone one-bedroom apartment rental leased by Plaintiffs former spouse.” (MJOP 6:3-4.) Defendant does not provide a citation or request for judicial notice for this assertion. Likewise, Defendants present that “[t]o sustain a construction-related accessibility claim under UCRA, such as a lack of an accessible parking area, the claim must be brought in relation to a ‘place of public accommodation’ [Citation]” and that “place of public accommodation” under UCRA has the same meaning as in USC, Title 42, §12181(7). (MJOP 6:12-17 [citing Cal. Civ. Code §§ 55.52(a)(1) and (a)(7)].) Again, Defendants assert that the Property is a “a private standalone one-bedroom apartment rental leased by Plaintiff’s former spouse” without a reference. (MJOP 6:19-21.)

The Court notes that Plaintiff has provided a declaration which states that “[he] must submit on the pleadings on this motion” as he cannot make the hearing on July 11, 2023 as he will be on an airplane and defense counsel refused to provide an extension. (See Decl. Greenstein [generally].) However, despite this presentation, Plaintiff has filed an Opposition. The Court will consider Plaintiff’s Opposition.

Plaintiff presents that, while Defendants cite correct laws, they have not presented anything on the face of the complaint or otherwise (i.e., evidence, facts, or law) to show support for their positions. Thus, Plaintiff argues that this MJOP must fail as Defendants are simply presenting conclusions.

Defendants’ Reply reiterates the arguments in their moving papers: (1) Plaintiff’s Complaint fails to set forth a basis for standing as Plaintiff has not pled any qualifying disability to pursue a claim under the ADA or UCRA; (2) Plaintiff has not presented an applicable code section under the 2010 ADA Standards and/or California Building Code for accessible design, and the Property is not a public accommodation and, thus, a fatal fact exists that cannot be cured.

On an MJOP, like a demurrer, the Court may only consider the pleading and judicially noticeable matters. Defendants attach no documents and request no judicial notice of any record related to the Property. As such, Defendants’ argument that the Property is not a public accommodation relies on facts and/or evidence outside of the Complaint and for which judicial notice was not requested. However, it appears from the presentation of the parties that the determination of whether the Property is a public accommodation is of substantial consequence to the determination of the action. The Court continued the MJOP to allow for supplemental briefing regarding the Property.

Defendants reiterate the elements of a claim under the ADA and provide a list of entities that are considered “public accommodations under Section 12181(7) of Title 42 of the I United States Code: an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; a restaurant, bar, or other establishment serving food or drink; a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; an auditorium, convention center, lecture hall, or other place of public gathering; a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; a terminal, depot, or other station used for specified public transportation; a museum, library, gallery, or other place of public display or collection; a park, zoo, amusement park, or other place of recreation; a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. (See 42 U.S. Code § 12181(7).) Defendants emphasize that in order to be a place of public accommodation, a facility must fall within one of the 12 enumerated categories, citing 28 CFR Appendix C to Part 36. Defendants further present that to sustain a construction-related accessibility claim under UCRA, such as Plaintiff’s, the claim must be brought in relation to a place of accommodation under Cal. Civ. Code § 55.52(a)(1) and “a place of accommodation” has the same meaning as that of “public accommodation under 42 U.S. Code § 12181(7). (See Cal. Civ. Code § 55.52(a)(7).) Defendants concede that a private home could be considered a public accommodation so long as it is used as a facility that falls within one of the 12 enumerated categories, but presents that, as used here as a personal residence for Laurel Greenstein, such an exception does not apply.

Defendants next present that the Property is a detached single-family dwelling unit and the lot that the Property is located contains three other detached single-family dwelling units. Based on this Defendants argue that the Property does not qualify as one of the enumerated categories of public accommodations. Defendants’ presentation of the Property is supported by Defendants’ request for judicial notice as well as Wade’s declaration.

It appears that Defendants also argue that Plaintiff has conceded that the Property is not a place of public accommodation in an email. The email is attached as Exh. G to Wade’s declaration; however, the declaration itself does not discuss the email or present that it is a true copy under the penalty of perjury. As such, the Court does not take this argument into consideration.

Plaintiff opines that the Court cannot decide if the Property is/was a public accommodation for the purposes of the ADA since such a determination involves a question of fact or law and no admissible evidence has been presented in any form. Plaintiff contends that Defendants have not requested judicial notice. Plaintiff argues that, currently, there is no clear, exact, and finite definition in Title III of the ADA as to what constitutes a public accommodation. That is, there are many examples, but no specifics as to what does not constitute a public accommodation. As such, Plaintiff believes that a trier of fact should decide whether the Property is a public accommodation. Plaintiff directs the Court to Brown v. Board of Education, arguing that the Court can look at law and interpret the current facts in a new or expanded way. Plaintiff argues that the Court should apply the duck test” (i.e., if it looks like a duck, quacks like a duck, and walks like a duck, it is presumed that it is a duck) and that an application shows that the Property is: a lot not subdivided to allow for single living units, an apartment style mailbox system, there is only one street address for the lot and individual house numbers were placed by Defendants to make it appear as though the dwellings are separate units, there is an apartment style dumpster, there is only one line and meter for water paid for by Wade, there is only one disposal line, there is only one gas line, and there are no designated parking spaces.

First, Defendants have requested judicial notice. The Court granted the request for judicial notice, ante. For clarity, the Court provides the reasoning here. Exh. A, B, and D are considered “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States” as they are actions taken by the County of Los Angeles, either by the Los Angeles County Assessor or the Los Angeles County Department of City Planning. (See Cal. Code Civ. Proc. § 452(c).) All exhibits of which judicial notice has been requested are “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See id. at (h).) Further, Cal. Code Civ. Proc. § 453 mandates judicial notice of any matter specified in Cal. Code Civ. Proc. § 452 if a party requests it and (1) gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (2) furnishes the court with sufficient information to enable it to take judicial notice of the matter. Due to the time limit imposed for supplemental briefing, Plaintiff had four days to respond to the request for judicial notice via filed briefing; however, Plaintiff responded the day after the service and filing of Defendants’ brief, presenting that no request for judicial notice was made. Plaintiff still had 21 calendar days, or 14 court days to prepare oral argument on the matter. The requests for judicial notice provided the Court with sufficient information to enable it to take judicial notice of the matter.

The definition of place of public accommodation incorporates the 12 categories of facilities represented in the statutory definition of public accommodation in section 301(7) of the ADA:

In order to be a place of public accommodation, a facility must be operated by a private entity, its operations must affect commerce, and it must fall within one of these 12 categories. While the list of categories is exhaustive, the representative examples of facilities within each category are not. Within each category only a few examples are given. The category of social service center establishments would include not only the types of establishments listed, day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies, but also establishments such as substance abuse treatment centers, rape crisis centers, and halfway houses. As another example, the category of sales or rental establishments would include an innumerable array of facilities that would sweep far beyond the few examples given in the regulation. For example, other retail or wholesale establishments selling or renting items, such as bookstores, videotape rental stores, car rental establishment, pet stores, and jewelry stores would also be covered under this category, even though they are not specifically listed.

Even if a facility does not fall within one of the 12 categories, and therefore does not qualify as a place of public accommodation, it still may be a commercial facility as defined in § 36.104 and be subject to the new construction and alterations requirements of subpart D.

Many facilities, however, are mixed use facilities. For example, in a large hotel that has a separate residential apartment wing, the residential wing would not be covered by the ADA because of the nature of the occupancy of that part of the facility. This residential wing would, however, be covered by the Fair Housing Act. The separate nonresidential accommodations in the rest of the hotel would be a place of lodging, and thus a public accommodation subject to the requirements of this final rule. If a hotel allows both residential and short-term stays, but does not allocate space for these different uses in separate, discrete units, both the ADA and the Fair Housing Act may apply to the facility. Such determinations will need to be made on a case-by-case basis. Any place of lodging of the type described in paragraph (1) of the definition of place of public accommodation and that is an establishment located within a building that contains not more than five rooms for rent or hire and is actually occupied by the proprietor of the establishment as his or her residence is not covered by the ADA. (This exclusion from coverage does not apply to other categories of public accommodations, for example, professional offices or homeless shelters, that are located in a building that is also occupied as a private residence.)

The requests for judicial notice show that the Property is one of four units on designed as 0110 (0 - residential, 1 - single-family residence, 1 - floor or wall heat, 0 – unused or unknown code (no meaning)), but used as with a subpart as 0400 – ( 0 – residential, 4 – four units (any combination), 0 – four stories or less, 0 – unused or unknown code (no meaning)). (Exh. B.) Under the explanation of 42 U.S. Code § 12181(7) in 28 CFR Appendix C to Part 36, the ADA does not apply as these units are residential.

Plaintiff would like the property to be treated as an apartment complex. Likewise, the ADA would not apply to an apartment complex under the explanation of 42 U.S. Code § 12181(7) in 28 CFR Appendix C to Part 36. While Plaintiff would like the Court to expand the definition of a public accommodation, this trial court is bound by California case precedent. California case precedent holds that the ADA does not apply to apartments and condominiums is persuasive. (See Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1553; Carolyn v. Orange Park Community Assn. (2009) 177 Cal. App. 4th 1090 [“. . .purely residential areas of a common interest development are not public accommodations. (See Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831, 850 [77 Cal. Rptr. 3d 883] (Coronado) [holding residential apartment complex, including path from apartment to parking area, was not public accommodation and noting ‘ADA does not apply to residential facilities such as … condominiums’], disapproved on other grounds in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 678 [94 Cal. Rptr. 3d 685, 208 P.3d 623]; Independent Housing Services v. Fillmore Center (N.D.Cal. 1993) 840 F.Supp. 1328, 1344 [‘The residential portions of Fillmore Center (the only portions at issue in this suit) do not themselves fall within the bounds of the ADA, since apartments and condominiums do not constitute public accommodations within the meaning of the Act.’].) Persuasive authority, such as federal cases, hold the same. (See Arceneaux v. Marin Hous. Auth. (N.D.Cal. May 26, 2015, No. 15-cv-00088-MEJ) 2015 U.S. Dist. LEXIS 67930 at 20-21 [“Title III of the ADA provides that ‘[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.’ 42 U.S.C. § 12182(a). Section 12181(7)(A) includes within the definition of public accommodation ‘an inn, hotel, motel, or other place of lodging.’ 42 U.S.C. § 12181(7)(A). However, apartment complexes do not constitute ‘public accommodations’ within the meaning of the ADA. See Indep. Hous. Servs. of S.F. v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1344 & n.14 (N.D. Cal. 1993) (finding that ‘the legislative history of the ADA clarifies that “other place of lodging” does not include residential facilities” such as apartments and condominiums[’]); Smith v. Powdrill, 2013 U.S. Dist. LEXIS 154485, 2013 WL 5786586, at *11 (C.D. Cal. Oct. 28, 2013) (‘[T]he ADA's reasonable accommodations requirement does not extend to residential housing.’); McColm v. Anber, 2006 U.S. Dist. LEXIS 92576, 2006 WL 3645308, at *5 (N.D. Cal. Dec. 12, 2006) (‘residential portions of housing developments do not fall within the bounds of the ADA’).”].)

Under the UCRA, “ ‘[p]lace of public accommodation’ has the same meaning as ‘public accommodation,’ as set forth in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.” (Cal. Civ. Code § 55.52(a)(7).) The Court incorporates its analysis, ante, for Plaintiff’s UCRA claims.

The Property is not subject to either ADA compliance or UCRA. Thus, Plaintiff may not maintain a suit against Defendants related to his visit to Laurel Greenstein’s residential dwelling. (See Complaint 4:3-6.)

[1] Plaintiff and Laurel Greenstein share the same surname. For purposes of clarity, the Court addresses Laurel Greenstein individually by her first name. No disrespect is meant.