Judge Thomas Falls, Case 22PSCV00642 2023-01-31 Tentative Ruling

RE: GABRIELA CABRERA vs KEEPLAND LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (22PSCV00642)

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DEFENDANT’S DEMURRER TO PLAINTIFF’S FAC is SUSTAINED with 20 days leave to

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.[2] CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

Defendant demurs to Plaintiff’s first and only cause of action for violations of the Unruh Act.

“California’s Unruh Civil Rights Act provides: ‘All persons within the jurisdiction of this state are free and equal and no matter what their….disability… are entitled to the full and equal¿accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, § 51, subd. (b).) A violation of any individual right under the Federal Americans with Disabilities Act (“ADA”) is also a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under the ADA, “[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).) Under the ADA, a place of public accommodation expressly includes establishments that serve food or drink. (42 U.S.C. § 12181(7)(B).)

The elements of a claim for construction-related violation of the Unruh Act are that: (1) Plaintiff is a qualified individual with a disability; (2) Defendant owned, leased, or operated a place of public accommodation; (3) the place of public accommodation was in violation of one or more construction-related accessibility standards; (4) the violations denied Plaintiff full and equal access to the place of public accommodation; and (5) the violations were personally encountered by Plaintiff or was deterred from accessing a place of public accommodation on a particular occasion. (Cal. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168 Cal.App.4th 414.) Intentional discrimination, however, need not be proved to obtain damages under the Unruh Civil Rights Act when the plaintiff establishes a violation of the ADA. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 665.)

As to construction-related disability actions, Code of Civil Procedure section 425.50 provides as follows:

“(a) An allegation of a construction-related accessibility claim in a complaint, as defined in subdivision (a) of Section 55.52 of the Civil Code, shall state facts sufficient to allow a reasonable person to identify the basis of the violation or violations supporting the claim, including all of the following:

(1) A plain language explanation of the specific access barrier or barriers the individual encountered, or by which the individual alleges he or she was deterred, with sufficient information about the location of the alleged barrier to enable a reasonable person to identify the access barrier.[3]

(2) The 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.[4]

(3) The date or dates of each particular occasion on which the claimant encountered the specific access barrier, or on which he or she was deterred.[5]

(4)(A) Except in complaints that allege physical injury or damage to property, a complaint filed by or on behalf of a high-frequency litigant shall also state all of the following:

(i) Whether the complaint is filed by, or on behalf of, a high-frequency litigant.[6]

(ii) In the case of a high-frequency litigant who is a plaintiff, the number of complaints alleging a construction-related accessibility claim that the high-frequency litigant has filed during the 12 months prior to filing the complaint.[7]

(iii) In the case of a high-frequency litigant who is a plaintiff, the reason the individual was in the geographic area of the defendant's business.[8]

(iv) In the case of a high-frequency litigant who is a plaintiff, the reason why the individual desired to access the defendant's business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose.[9]

Defendant argues that there is no plain language explanation of the specific access barriers Plaintiff encountered with enough information of the alleged barriers to enable a reasonable person to identify the barrier and that there is no explanation as to how any alleged barrier denied Plaintiff full access or use on a particular occasion.

There are currently no reported state cases determining the sufficiency of allegations under the heightened pleading standard set forth in Section 425.50. However, several federal cases discuss the sufficiency of allegations, including Whitaker v. Tesla Motors, Inc. (2021) 985 F.3 1173, a 9th Circuit case, which this Court finds persuasive. (Demurrer pp. 18-19.)[10]

In Tesla, the court considered whether the plaintiff’s allegations that the defendant had violated Title III of the ADA and the Unruh Act were sufficiently pleaded. (Id. at p. 1175.) The plaintiff alleged that he encountered inaccessible service counters that denied him full access to the Tesla dealership and created “difficulty and discomfort” as a result. (Id. at p. 1174.) In affirming the lower court’s determination that the complaint failed to allege sufficient facts, the 9th Circuit found the plaintiff’s allegations that the defendant “failed to provide accessible service counters,” that he “personally encountered” those counters, and that he was denied full and equal access did little more than recite the elements of an ADA claim and fell short of putting the defendant on notice as to how the counters prevented the defendant from full and equal access to the facility. (Id. at p. 1177.) The Court stated, the “complaint failed to answer basic questions: Were the service counters too low? Or too high? Were they positioned in an area that was inaccessible for another reason? Without this sort of detail, the district court and Tesla were left in the dark about how the service counters denied [the plaintiff] from full and equal enjoyment of the premises.” (Id) (emphasis added). In a footnote, the 9th Circuit also stated that the Unruh Act is coextensive with the ADA and thus, their analysis of the ADA claim applies equally to the Unruh Act claim. (Id. at p. 1175, fn. 2.)

Here, Plaintiff’s factual allegations here are similarly insufficient. Plaintiff’s only factual allegations related to the alleged barrier are that (1) The van accessible space contains slopes measuring between 2.3% and 4.0%, caused by an uneven surface, (2) The van accessible space's access aisle contains slopes measuring between 2.7% and 5.2%, caused by an uneven surface, (3) The van accessible space contains an abrupt change in level measuring as high as 5/8", (4) The cross hatching of the access aisle belonging to the accessible space contains a cross hatching within the accessible aisle measuring between 39 to 40 1/2, (5), “Cross-slope within the accessible route measures between 2.5% and 7.7%, in excess of the maximum allowed (Section 403.3), and (6) The clear width of the identified accessible route is blocked intermittently by fuel trucks and other vehicles that need water/air (Section 403.5.1; 35.130; 35.150; 35.302; 35.304). (FAC, ¶14.)

However, Plaintiff does not allege how the alleged ADA violations denied her full and equal access to the gas station. After all, “Plaintiff does not even specify where the deviation occurs, [and] whether it was in her path of travel or not.” (Demurrer p. 14) (emphasis added). Or, Plaintiff repeatedly references the van accessible space’s inaccessibility, yet does not state whether she even arrived in a vehicle such that she would need to use the van accessible space. (See Demurrer p. 14 [“If Plaintiff arrived from a public sidewalk, for instance, there would be no reason for Plaintiff to traverse across the van accessible space. The allegation that she experienced difficulty defies logic.”].) Or how does a route that is not stable, firm, and slip resistant affect her disability when she alleges to use a wheelchair. (Demurrer p. 14 [“In other words, how was she denied full and equal access to the Business as a result of this alleged deviation? The allegation defies logic. How can a 350-pound wheelchair slip and slide?”].) Or how did the cross hatching’s allegedly unlawful measurements impede on her access to the business? (Demurrer p. 15.) Or how was a potential route blocked by other vehicles the vehicle of the business owner? (Demurrer p. 16 [“Plaintiff does not specify if this was a temporary event and whether it was caused by a customer. What is clear is that the Complaint does not allege it was a vehicle owned by the owner of the business that interfered with the path of travel.”].) Or finally, as to any cross-slope measurements, Plaintiff does not even allege that she had to ride along those cross-slopes for it amount to a barrier. (Demurrer p. 16.)

To the extent that Plaintiff opposes Defendant’s contention that Plaintiff fails to state how she was denied full and equal access and how she was deterred, Plaintiff merely cites to the FAC and case law, essentially arguing that because Plaintiff is a paraplegic, any barriers Plaintiff encounters relate to her mobility limitations, and therefore, violations exist. (Opp. p. 5, see also FAC 23, quoting Chapman v. Pier 1 Imports Inc. 631 F.3d 939, 950 (9th Cir. 2011). While it is true that an ADA plaintiff suffers an “injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability,” here, as articulated above, Plaintiff has failed to plead the basic threshold of how the alleged ADA violations deprived her of full and equal enjoyment when purchasing the goods from the gas station.

Based on the foregoing—notably that the FAC is nothing more than measurements of paths, parking space, and routes without an explanation of how such alleged ADA violations amounted to a barrier—fails to satisfy the requirements set forth in CCP section 425.50. Therefore, the demurrer is sustained, with 20 days leave to amend.

[1] The FAC properly denotes that the action is subject to a supplemental fee pursuant to Government Code Section 70616.5 as Plaintiff is a high-frequency litigant.

[2] For this reason, the court will not reference the Exhibit List that Defendant provided because it goes beyond the pleading.

[3] This requirement is not met.

[4] This requirement is not met.

[5] This requirement is met. (See FAC ¶11 [June 18, 2022].)

[6] This requirement is met as denoted in the FAC’s caption.

[7] This requirement is met as Plaintiff pleads that she has filed 73 complaints in the last 12 months.

[8] This requirement is met. Defendant argues that Plaintiff’s allegation that she visited the business because “she was on her way to visit her brother nearby” is insufficient. (FAC ¶12.) However, as Defendant cites no case law demonstrating more specificity is required as to the reason as to why she was in the geographical location, the court finds Plaintiff’s allegations sufficient.

[9] This requirement is met. Defendant argues that “Plaintiff continues to fail to allege the reason why she chose this particular gas station over dozens of others near her place of residence.” (Demurrer p. 17.) However, Plaintiff has made such an allegation: “Plaintiff went to the business . . . to purchase a snack cake and gum, which are items sold at Defendant’s Business Establishment.” (FAC ¶11.) Therefore, absent citation to authority that requires a more particularized reason, the court finds the allegation sufficient.

[10] Plaintiff’s Opposition does not address any of the federal cases Defendant provided.