Judge: Virginia Keeny, Case: 22VECV01340, Date: 2023-01-20 Tentative Ruling
Case Number: 22VECV01340 Hearing Date: January 20, 2023 Dept: W
BRIAN WHITAKER v. HUGO BOSS RETAIL INC.
demurrer WITH MOTION TO STRIKE
Date of Hearing: January 20, 2023 Trial Date: None set.
Department: W Case
No.: 22VECV01340
Moving
Party: Defendant Hugo Boss
Retail, Inc.
Responding
Party: Plaintiff Brian Whitaker
Meet
and Confer: Yes. (Saniefar Decl. ¶2.)
BACKGROUND
This action arises from alleged violations of the Unruh Civil
Rights Act (“Unruh”) and the California Disabled Persons Act (“DPA”). Plaintiff Brian Whitaker is a quadriplegic who
uses a wheelchair for mobility and is an ADA tester. As an ADA tester,
Plaintiff has filed thousands of similar lawsuits, and alleges in the year
preceding this complaint alone, he filed approximately 322 lawsuits.
On May 18, 2022, Plaintiff visited one of Defendant Hugo Boss
Retail, Inc.’s retail stores located at 6600 Topanga Canyon Blvd., Canoga Park,
California. During his visit, Plaintiff observed that the sales counter was too
high and in violation of § 904. The operative verified complaint alleges two
causes of action: (1) violation of the Unruh Act and (2) violation of the DPA.
Plaintiff seeks injunctive relief, treble actual damages, and a statutory
minimum of $4000 (under Unruh) or $1000 (under the DPA) for each alleged violation
of each Act.
[Tentative] Ruling
Defendant Hugo Boss Retail, Inc.’s
Demurrer is OVERRULED. Defendant Hugo Boss Retail, Inc.’s Motion to Strike is
GRANTED WITH LEAVE TO AMEND.
REQUEST
FOR JUDICIAL NOTICE
In reply, Defendant requests this court
take judicial notice of the following documents: (1) Complaint filed in Thurston
v. Midvale Corp., Case Number BC663214, dated May 26, 2017 (Exh. A); (2) Memorandum
of Points and Authorities in Support of Motion for Summary Judgment or, in the
Alternative, Summary Adjudication filed by Midvale Corporation in Thurston
v. Midvale Corp., Case Number BC663214, dated March 2, 2018 (Exh. B); and
(3) Reply Memorandum of Points and Authorities in Support of Motion for Summary
Judgment or, in the Alternative, Summary Adjudication filed by Midvale
Corporation in Thurston v. Midvale Corp., Case Number BC663214, dated
May 11, 2018 (Exh. C).
The court grants the request for
judicial notice.
DISCUSSION
Demurrer
Defendant Hugo Boss Retail, Inc. demurs to the complaint on the
grounds the pleading does not state facts sufficient to constitute a cause of
action entitling Plaintiff to injunctive relief and, without entitlement to injunctive
relief, the only amount of controversy in this action is for a single statutory
violation of $4,000.00, which would require this case to be filed in Limited
Civil Jurisdiction.
However, “[a] demurrer cannot be lodged against a¿prayer for
relief because a¿demurrer tests the sufficiency of the factual allegations of
the complaint rather than¿the relief suggested in the prayer of the
complaint.”¿(See¿Venice Town Council, Inc. v. City of Los Angeles (1996)
47 Cal.App.4th 1547, 1562¿(citing to¿Siciliano v. Fireman's Fund Ins. Co.
(1976) 62 Cal.App.3d 745, 751;¿Grieves v. Superior Ct. (1984) 157
Cal.App.3d 159, 166, fn. 9¿(the prayer of a complaint is not subject to
demurrer).) Moreover, Defendant’s
demurrer does not dispose of an entire cause of action. “A demurrer does not
lie to only part of a cause of action (or to a particular type of damage or
remedy), and a cause will survive demurrer if there are sufficient allegations
that might entitle the pleader to relief.”¿(Kong v. City of Hawaiian Gardens
Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046;¿PH II, Inc. v.
Superior Court (1995) 33 Cal.App.4th 1680, 1682.) For these reasons, the court overrules the
demurrer.
Motion to Strike
As Defendant notes, Plaintiff has not filed an ADA claim and
expressly disavowed it is seeking injunctive relief under Civil Code section 55
(Compl. fn. 2), which would have allowed him to seek mandatory injunctive
relief. Instead, the complaint sets
forth a request for injunctive relief only under Civil Code Section 52. Defendant first moves to strike Plaintiff’s
requests for injunctive relief on the grounds a claim for injunctive relief
pursuant to Civil Code 52 requires
intentional discrimination and Plaintiff alleges no facts that support a
finding of any intentional discrimination based on “willful and affirmative”
misconduct by Defendant directed toward Plaintiff.
Civil Code section 52 provides in pertinent part:
(c) Whenever there is reasonable
cause to believe that any person or group of persons is engaged in conduct of resistance
to the full enjoyment of any of the rights described in this section, and that
conduct is of that nature and is intended to deny the full exercise of those
rights, the Attorney General, any district attorney or city attorney, or any
person aggrieved by the conduct may bring a civil action in the appropriate
court by filing with it a complaint. The complaint shall contain the
following:
…
(3) 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.
Defendant emphasizes that subdivision (c) of Civil Code section 52
includes the word “intended” and thus, injunctive relief is only available for
intentional discrimination.
The key case on interpreting the intent requirement under the
Unruh Act is Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 678. There the court examined the interplay
between Civil Code Section 51 and 52.
The court pointed out that the legislature had amended the Unruh Act
(Section 51(f)) to clarify that any violation of the ADA constitutes a
violation of the Unruh Act. The court
further held that a plaintiff asserting a violation of the ADA did not need to
allege or prove intentional discrimination in order to recover damages. The
court reached this decision in part because some lower and federal courts had read
into Section 52 the requirement that plaintiff prove intentional
discrimination to obtain damages, even though the word “intent” or
“intentional” was not used in Civil Code 52 subsection (a)(governing
damages). The court’s analysis in Munson
is not dispositive of the issue before us, as here the question turns on a separate provision:
Section (c) which governs requests for injunctive relief. That section was not analyzed in Munson,
and it clearly provides that injunctive relief is only available when
conduct “is intended to deny the
full exercise of those rights.” (Section
52 (c) (emphasis added).)
“As always in interpreting statutes, our goal is ‘to ascertain the
Legislature's intent so as to give effect to the law's purpose.’ (In re
Corrine W. (2009) 45 Cal.4th 522, 529, 87 Cal.Rptr.3d 691, 198 P.3d 1102.)
With regard to the Unruh Civil Rights Act particularly, we recently explained
that it “must be construed liberally in order to carry out its purpose” to ‘create
and preserve a nondiscriminatory environment in California business
establishments by “banishing” or “eradicating”’ arbitrary, invidious
discrimination by such establishments.’ (Angelucci v. Century Supper Club
(2007) 41 Cal.4th 160, 167, 59 Cal.Rptr.3d 142, 158 P.3d 718.) The Unruh Civil
Rights Act ‘serves as a preventive measure, without which it is recognized that
businesses might fall into discriminatory practices.’ (Ibid.)” (Munson, at p. 666.)
With these admonitions in mind, the court still must give full
effect to the language of the statute.
In Section 52, the legislature did not require intent to be proven in
order to obtain damages, but used distinctly different language in the provision
governing injunctive relief, set forth in subsection (c). “Where different words or phrases are used in
the same connection in different parts of a statute, it is presumed the
Legislature intended a different meaning.” (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1117, 81 Cal.Rptr.2d 471, 969
P.2d 564.)
Accordingly, the court agrees that as plead, plaintiff has not
adequately alleged entitlement to injunctive relief and the motion to strike
must be granted.
Defendant next moves to strike the request for injunctive relief
on the grounds Civil Code section 52(c) provides only preventive injunctive
relief. It does not provide for the type of affirmative or mandatory injunctive
relief sought by Plaintiff here. The court agrees.
Defendant argues although Civil Code section 52(c) does not define
“preventive relief,” it cannot include requiring a defendant to perform
affirmative or mandatory acts as it can only mean prohibiting certain acts. For
example, Civil Code section 3368 states that “[p]reventive relief is given by prohibiting
a party from doing that which ought not to be done.” (Emphasis added.) If a
word or phrase has a particular meaning in one part of the law, the court will
give it the same meaning in other parts of the law. (Scottsdale Ins. Co. v.
State Farm Mutual Automobile Ins. Co. (2005) 130 Cal.App.4th 890, 899; see
also Balasubramanian v. San Diego Community College Dist. (2000) 80
Cal.App.4th 977, 988 (“We must construe identical words in different parts of
the same act or in different statutes relating to the same subject matter as
having the same meaning.”).) Defendant further contends the California Supreme
Court has explained that “[a]s a general rule, we think we may say that when
the injunction merely grants preventive relief it is prohibitive, but when it
directly or indirectly grants affirmative relief it is mandatory.” (Ohaver
v. Fenech (1928) 206 Cal. 118, 122; see also Davenport v. Blue Cross of
California (1997) 52 Cal.App.4th 435, 446-447 (“[T]he general rule is that
an injunction is prohibitory if it requires a person to refrain from a
particular act and mandatory if it compels performance of an affirmative act
that changes the position of the parties.”).)
Plaintiff seeks Defendant to remove all presently existing
architectural barriers as required by the Americans with Disabilities Act and
the Unruh Civil Rights Act, obtain biennial Certified Access Specialist architectural
inspections of the subject facility to verify on-going ADA compliance and
follow those inspection’s recommendations of all readily achievable barrier
removal, and implementation of accessibility policies and requiring annual
employee training on providing full and equal access to clients or customers
with disabilities. (Compl. Prayer ¶¶1-3.) This is mandatory injunctive relief,
not preventive relief.
Accordingly, Defendant’s motion to strike Plaintiff’s request for
injunctive relief is GRANTED WITH LEAVE TO AMEND. If plaintiff is seeking injunctive relief, he
must plead intentional conduct and seek only preventive relief.
Reclassification
Defendant moves for an order to reclassify this case to limited
civil jurisdiction. Defendant argues
that without a claim for injunctive relief, the only remaining request for
relief is for statutory damage of $4000 which is less than the statutory limit
of $25,000 for unlimited civil jurisdiction.
At this time, the court denies Defendant’s request for
reclassification. If Plaintiff is unable to remedy the issues with their
complaint, the court, on its own motion, may reclassify a case at any time.
(See Stern v. Superior Court (2003) 105 Cal.App.4th 223, 230.)