Judge: William A. Crowfoot, Case: 22AHCV00879, Date: 2023-01-19 Tentative Ruling

Case Number: 22AHCV00879    Hearing Date: January 19, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.         BACKGROUND

On October 18, 2022, plaintiff Orlando Garcia (“Plaintiff”) brought this action against defendants Irene Mota, Adolfo Mota, and Magpie Grill, Inc. (“Defendants”), asserting causes of action for violations of the Unruh Civil Rights Act and California Disabled Persons Act. Plaintiff has Cerebral Palsy and uses a wheelchair. Plaintiff alleges on July 18, 2022, he went to Mota’s Mexican Restaurant located at 2397 Lincoln Ave., Altadena, California, (“the Restaurant”) but the facility failed to comply with ADA standards as it related to wheelchair users. Defendant Magpie Grill, Inc. allegedly owns the restaurant. Defendants Irene Mota and Adolfo Mota allegedly own the real property where the Restaurant is located.

On November 18, 2022, Defendants filed this motion to strike portions of Plaintiff’s complaint. On January 5, 2023, Plaintiff filed an opposition. On January 10, 2022, Defendants filed a reply along with a request for judicial notice.

II.        LEGAL STANDARD

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike 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.)

III.      REQUEST FOR JUDICIAL NOTICE

          Defendants request the Court take judicial notice of the legislative history of AB 2702, which amended Civil Code section 52(b).

“Judicial notice may be taken of…Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code § 452(c).) “Legislative committee reports and analyses, including statements pertaining to the bill's purpose, are properly the subject of judicial notice [citation], as are digests of the Legislative Counsel. [Citation.] Also appropriate for judicial notice are prior versions of a bill as well as analyses of such earlier versions, which shed light on how the Legislature arrived at the ultimately enacted statute. [Citations.]” (People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1532.)

Accordingly, Defendants’ request for judicial notice is GRANTED.

IV.      DISCUSSION

          Defendants move to strike the following portions of Plaintiff’s complaint:

1.   Page 5, lines 6-15: “25. Given the obvious and blatant nature of the barriers and violations alleged herein, the Plaintiff alleges that Defendants have failed to take the necessary steps to ensure removal of non-compliant architectural barriers as required by 42 U.S.C. § 12182(2)(A)(iv) and on information and belief, alleges that there are other violations and barriers on the site that relate to his disability. Plaintiff will amend the complaint to provide proper notice regarding the scope of this lawsuit once he conducts a site inspection. Plaintiff seeks to have all barriers related to his disability remedied. See Doran v. 7-Eleven, 524 F.3d 1034 (9th Cir. 2008) (holding that once a plaintiff encounters one barrier at a site, he can sue to have all barriers that relate to his disability removed regardless of whether he personally encountered them).”

2.   Page 9, lines 24-26: “1. For injunctive relief, compelling Defendants to remove all presently existing architectural barriers as required by the Americans with Disabilities Act and the Unruh Civil Rights Act.”

3.   Page 10, lines 1-5: “2. For injunctive relief requiring that Defendants obtain biennial Certified Access Specialist (‘CASp’) architectural inspections of the subject facility to verify on-going ADA compliance and follow those inspection's recommendations of all readily achievable barrier removal.”

4.   Page 10, lines 6-8: “For injunctive relief requiring implementation of accessibility policies and requiring annual employee training on providing full and equal access to clients or customers with disabilities.”

Defendants are essentially moving to strike Plaintiff’s claim for injunctive relief. Defendants bring their motion on grounds that the Unruh Civil Rights Act (Civil Code section 52, or “Section 52”) only provides for preventive relief. According to Defendants, Plaintiff may seek an affirmative injunction on his claims only under the California Disabled Persons Act (Civil Code section 55, or “Section 55”). Defendants note, however, that Section 55 allows for attorney fees to a prevailing defendant whereas section 52 provides only one-way attorney fees for the plaintiff. Defendants argue this is the likely reason Plaintiff seeks an injunction under Section 52 and not Section 55.

In opposition, Plaintiff offers case law for the proposition that Section 52 provides for affirmative injunctive relief. (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th. 634.) Plaintiff notes Section 55 has a lower burden of proof and standing requirement, and argues this is the reason why Section 55 allows for attorney fees to a prevailing defendant.

In reply, Defendants offer excerpts from the legislative history of Section 52 indicating that Section 52 was not intended to impose additional requirements for construction or alteration of facilities beyond those required by other laws.

Thurston is dispositive. In Thurston, a blind individual sued a restaurant under Section 52, alleging the restaurant’s website ordering system did not satisfy ADA accessibility requirements. (Thurston, 39 Cal.App.5th. at 636.) The restaurant did not contest a plaintiff’s ability to obtain an injunction under Section 52 in general. Rather, the restaurant contested whether the trial court, under Section 52, could enforce a specific type of injunction—in that case, compliance with WCAG 2.0 guidelines. (Id. at 648.) Citing federal case law, the Court of Appeal ruled the trial court could, stating “[a] court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” (Ibid.)

The facts in Thurston are analogous to the facts here. Like Thurston, Plaintiff is seeking an injunction under Section 52 for per se violations of the ADA. Just as the trial court in Thurston could order the restaurant in that case to take specific, affirmative action to comply with ADA requirements, Plaintiff may seek an injunction from this Court ordering the Restaurant in this case to take affirmative action to comply with ADA requirements. Whether Plaintiff proves his claims and ultimately obtains an injunction is a matter yet to be determined. But Plaintiff may pray for such relief in his complaint.

Defendants argue Thurston does not establish injunctive relief under Section 52, quoting the following language: “Appellant has not cited any cases discussing the requirements for an injunction under the Unruh Civil Rights Act and suggests no such case exists.” (Thurston, 39 Cal.App.5th. at 652, fn. 7.) However, in stating this the Court of Appeal was not speaking to whether Section 52 provides for injunctive relief—it was speaking to the requirements for an injunction under Section 52. In fact, one sentence later the Thurston Court stated, “appellant does not discuss the language, legislative intent or purpose of the Unruh Civil Rights Act or Civil Code section 52, which authorizes ‘any person aggrieved’ to seek an injunction. (Ibid, emphasis added.)

Defendants further argue the issue here is a matter of first impression, and advance several arguments relating to statutory interpretation and the legislative history of Civil Code section 52. The Court acknowledges Defendants’ arguments, but simply notes that it is bound by precedent. California appellate courts have affirmed an aggrieved disabled person’s right to seek injunctive relief under Section 52, and thus interpreting the language and legislative history of Section 52 is beyond this Court’s province.

Accordingly, Defendants’ motion to strike is DENIED.

V.        CONCLUSION

          Defendants Irene Mota, Adolfo Mota, and Magpie Grill, Inc.’s motion to strike is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.