BRIAN WHITAKER VS BRAND BOULEVARD ASSOCIATES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Tentative Rulings

Case Number: 20STLC06534    Hearing Date: February 11, 2021    Dept: 26

Whitaker v. Brand Boulevard Associates, LP, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendants Brand Boulevard Associates LP, Sesan Corporation and United Lions Management Group’s Demurrer to the Complaint is OVERRULED. DEFENDANTS TO FILE AND SERVE THEIR ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Duplicative hearing on demurrer set for February 11, 2021 is advanced to this date and vacated.

ANALYSIS:

Plaintiff Brian Whitaker (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Brand Boulevard Associates LP, Sesan Corporation and United Lions Management Group (“Defendants”) on August 5, 2020. The Complaint alleges a single cause of action for Violation of the Unruh Civil Rights Act. On October 27, 2020, Defendants filed the instant Demurrer to the Complaint. Plaintiff filed an opposition on January 28, 2021.

Discussion

The Demurrer is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. Defendants are admonished for failing to comply with the statutory requirements and warned that future failures to meet and confer as required may result in the demurrer being placed off calendar until such compliance is shown.

Defendants demur to the Complaint for failure to allege facts insufficient to state a cause of action. The Court disregards Defendants’ arguments that raise facts outside of the pleadings. It has long been settled that a demurrer can be used only to challenge defects that appear on the face of the pleading under attack or that appear from matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court likewise disregards Defendants’ arguments regarding the number of lawsuits Plaintiff has filed, as this has no bearing on the sufficiency of the allegations in the instant Complaint.

The elements of a claim for 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; (5) the violations were personally encountered by Plaintiff on a particular occasion; (6) Plaintiff experienced difficulty, discomfort or embarrassment due to the violations; and (7) the discrimination was intentional unless premised exclusively upon a violation of the ADA. (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.)

The Complaint alleges that Plaintiff is a physically disabled individual who visited Defendants’ restaurant, The Famous, at 154 S. Brand Blvd., Glendale, California in November 2019. (Id. at ¶¶1, 3-6.) At the time of his visit, Plaintiff alleges the Famous failed to provide wheelchair accessible dining surfaces and bathrooms in conformance with the ADA Standards. (Id. at ¶¶8-12.) Plaintiff alleges that because he encountered these accessibility barriers, he was denied full and fair access to Defendants’ restaurant store. (Id. at ¶¶13-14.) Plaintiff also alleges he experienced difficulty and discomfort due to these accessibility barriers. (Id. at ¶15.) These allegations are sufficient to state a violation of the Unruh Act. It is not necessary for Plaintiff to allege evidentiary facts; California law only requires the pleading of ultimate facts as Plaintiff has done here. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098.)

Conclusion

Defendants Brand Boulevard Associates LP, Sesan Corporation, and United Lions Management Group’s Demurrer to the Complaint is OVERRULED. DEFENDANTS TO FILE AND SERVE THEIR ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Duplicative hearing on demurrer set for February 11, 2021 is advanced to this date and vacated.

Plaintiff to give notice.

Case Number: 20STLC06534    Hearing Date: February 10, 2021    Dept: 26

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendants Brand Boulevard Associates LP, Sesan Corporation and United Lions Management Group’s Demurrer to the Complaint is OVERRULED. DEFENDANTS TO FILE AND SERVE THEIR ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Duplicative hearing on demurrer set for February 11, 2021 is advanced to this date and vacated.

ANALYSIS:

Plaintiff Brian Whitaker (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Brand Boulevard Associates LP, Sesan Corporation and United Lions Management Group (“Defendants”) on August 5, 2020. The Complaint alleges a single cause of action for Violation of the Unruh Civil Rights Act. On October 27, 2020, Defendants filed the instant Demurrer to the Complaint. Plaintiff filed an opposition on January 28, 2021.

Discussion

The Demurrer is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. Defendants are admonished for failing to comply with the statutory requirements and warned that future failures to meet and confer as required may result in the demurrer being placed off calendar until such compliance is shown.

Defendants demur to the Complaint for failure to allege facts insufficient to state a cause of action. The Court disregards Defendants’ arguments that raise facts outside of the pleadings. It has long been settled that a demurrer can be used only to challenge defects that appear on the face of the pleading under attack or that appear from matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court likewise disregards Defendants’ arguments regarding the number of lawsuits Plaintiff has filed, as this has no bearing on the sufficiency of the allegations in the instant Complaint.

The elements of a claim for 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; (5) the violations were personally encountered by Plaintiff on a particular occasion; (6) Plaintiff experienced difficulty, discomfort or embarrassment due to the violations; and (7) the discrimination was intentional unless premised exclusively upon a violation of the ADA. (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.)

The Complaint alleges that Plaintiff is a physically disabled individual who visited Defendants’ restaurant, The Famous, at 154 S. Brand Blvd., Glendale, California in November 2019. (Id. at ¶¶1, 3-6.) At the time of his visit, Plaintiff alleges the Famous failed to provide wheelchair accessible dining surfaces and bathrooms in conformance with the ADA Standards. (Id. at ¶¶8-12.) Plaintiff alleges he encountered these accessibility barriers and as a result was denied full and fair access to Defendant’s store. (Id. at ¶¶13-14.) Plaintiff also alleged he experienced difficulty and discomfort due to these accessibility barriers. (Id. at ¶15.) These allegations are sufficient to state a violation of the Unruh Act. It is not necessary for Plaintiff to allege evidentiary facts; California law only requires the pleading of ultimate facts as Plaintiff has done here. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098.)

Conclusion

Defendants Brand Boulevard Associates LP, Sesan Corporation, and United Lions Management Group’s Demurrer to the Complaint is OVERRULED. DEFENDANTS TO FILE AND SERVE THEIR ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Duplicative hearing on demurrer set for February 11, 2021 is advanced to this date and vacated.

Plaintiff to give notice.