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This case was last updated from Los Angeles County Superior Courts on 05/06/2021 at 01:02:24 (UTC).

BRIAN WHITAKER VS MGR PROPERTIES, LLC A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Case Summary

On 09/11/2020 BRIAN WHITAKER filed a Civil Right - Other Civil Right lawsuit against MGR PROPERTIES, LLC A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7729

  • Filing Date:

    09/11/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

WHITAKER BRIAN

Defendants

MGR PROPERTIES LLC A CALIFORNIA LIMITED LIABILITY COMPANY

THE VAN NUYS GROUP INC. A CALIFORNIA NONPROFIT CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

BALLISTER RAYMOND G.

Defendant Attorney

SAHELIAN ARA

 

Court Documents

Notice (name extension) - Notice OF ORDER ON DEMURRER

3/8/2021: Notice (name extension) - Notice OF ORDER ON DEMURRER

Reply (name extension) - Reply In Support of Defendants' Demurrer

3/15/2021: Reply (name extension) - Reply In Support of Defendants' Demurrer

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

3/15/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Exhibit List - Exhibit List

3/15/2021: Exhibit List - Exhibit List

Declaration (name extension) - Declaration OF RACHAEL LAVI IN SUPPORT OF DEMURRER

3/16/2021: Declaration (name extension) - Declaration OF RACHAEL LAVI IN SUPPORT OF DEMURRER

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

5/4/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Proof of Service by Mail - Proof of Service by Mail

3/1/2021: Proof of Service by Mail - Proof of Service by Mail

Reply (name extension) - Reply Brief In Support of Demurrer

3/2/2021: Reply (name extension) - Reply Brief In Support of Demurrer

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

12/9/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Notice (name extension) - Notice of Defendants' Demurrer

12/9/2020: Notice (name extension) - Notice of Defendants' Demurrer

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

12/10/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

11/10/2020: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

Proof of Personal Service - Proof of Personal Service

10/20/2020: Proof of Personal Service - Proof of Personal Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

10/13/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Complaint - Complaint

9/11/2020: Complaint - Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

9/11/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

Summons - Summons on Complaint

9/11/2020: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

9/11/2020: First Amended Standing Order - First Amended Standing Order

9 More Documents Available

 

Docket Entries

  • 09/15/2023
  • Hearing09/15/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 03/11/2022
  • Hearing03/11/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 03/16/2021
  • DocketDeclaration OF RACHAEL LAVI IN SUPPORT OF DEMURRER; Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 03/15/2021
  • DocketReply In Support of Defendants' Demurrer; Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 03/15/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 03/15/2021
  • DocketExhibit List; Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 03/08/2021
  • DocketNotice OF ORDER ON DEMURRER; Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant); As to: Brian Whitaker (Plaintiff)

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  • 03/04/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 05/04/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 03/04/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 03/04/2021
  • DocketOn the Court's own motion, Hearing on Demurrer - without Motion to Strike scheduled for 03/04/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Held - Continued was rescheduled to 05/04/2021 10:30 AM

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8 More Docket Entries
  • 10/20/2020
  • DocketProof of Personal Service; Filed by: Brian Whitaker (Plaintiff); As to: MGR Properties, LLC a California Limited Liability Company (Defendant); Service Date: 10/13/2020; Service Cost: 30.00; Service Cost Waived: No

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  • 10/13/2020
  • DocketProof of Service by Substituted Service; Filed by: Brian Whitaker (Plaintiff); As to: The Van Nuys Group, Inc., a California Nonprofit Corporation (Defendant); Proof of Mailing Date: 10/12/2020; Service Cost: 30.00; Service Cost Waived: No

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  • 09/11/2020
  • DocketNon-Jury Trial scheduled for 03/11/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/11/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/15/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/11/2020
  • DocketComplaint; Filed by: Brian Whitaker (Plaintiff); As to: MGR Properties, LLC a California Limited Liability Company (Defendant); The Van Nuys Group, Inc., a California Nonprofit Corporation (Defendant)

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  • 09/11/2020
  • DocketSummons on Complaint; Issued and Filed by: Brian Whitaker (Plaintiff); As to: MGR Properties, LLC a California Limited Liability Company (Defendant); The Van Nuys Group, Inc., a California Nonprofit Corporation (Defendant)

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  • 09/11/2020
  • DocketCivil Case Cover Sheet; Filed by: Brian Whitaker (Plaintiff); As to: MGR Properties, LLC a California Limited Liability Company (Defendant); The Van Nuys Group, Inc., a California Nonprofit Corporation (Defendant)

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  • 09/11/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/11/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 09/11/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC07729    Hearing Date: May 4, 2021    Dept: 25

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendants MGR Properties, LLC and The Van Nuys Group, Inc.

RESP. PARTY: Plaintiff Brian Whitaker

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants MGR Properties, LLC and The Van Nuys Group, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 1, 2021 [X] Late [ ] None

REPLY: Filed on March 2, 2021 [X] Late [ ] None

ANALYSIS:

I. Background

On September 11, 2020, Plaintiff Brian Whitaker (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants MGR Properties, LLC (“MGR”) and The Van Nuys Group, Inc. (“VNG”) (collectively, “Defendants”).

Defendants filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”) on December 9, 2020. Plaintiff filed a late opposition on March 1, and Defendants filed a late reply on March 2.

The initial March 4 hearing was continued because Defendants did not include a meet and confer declaration with their motion. (3/4/21 Minute Order.)

Defendants filed a second reply brief and exhibit list on March 15, 2021 and Defendant MGR’s counsel filed a supplemental declaration on March 16.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (3/16/21 Lavi Decl., ¶ 3.)

A. Violation of the Unruh Civil Rights Act

Defendants demur to the Complaint on the basis that it fails to allege sufficient facts under Code of Civil Procedure section 425.50. (Dem., p. 1:1-6.)

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; and (6) Plaintiff experienced difficulty, discomfort, or embarrassment due to the violations. (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.)

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.

(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.

(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.

(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.

(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.

(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.

(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.

(Code Civ. Proc., § 425.50, subd. (a).)

B. Plaintiff’s Allegations

Plaintiff alleges the following: (1) that Plaintiff is a quadriplegic; (2) that Plaintiff is a high-frequency litigant and has filed approximately 468 cases in the preceding 12-month period; (3) that Defendant MGR owns real property located at 8311 Beverly Blvd., Los Angeles CA (the “Property”); (4) that Defendant VNG owns the store Green Easy located at the Property; (5) that Plaintiff went to Green Easy on June 18, 2019 “with the intention to avail himself of its goods, motivated in part to determine if the [D]efendants comply with the disability access laws;” (6) that “Plaintiff was in the geographical area because he lives just 10 miles from the [Green Easy]” and that the Plaintiff “frequents this area on a regular basis”; (7) that, on the date of Plaintiff’s visit, “[D]efendants failed to provide wheelchair accessible paths of travel leading to the interior of the [Green Easy] in conformance with the ADA Standards as it relates to wheelchair users like the [P]laintiff”; (8) that “[t]hese barriers relate to and impact the [P]laintiff’s disability” and that he personally encountered these barriers; (9) that the lack of accessible facilities created difficulty and discomfort for Plaintiff; (10) that Defendants “failed to maintain in working and useable conditions those features required to provide ready access to persons with disabilities”; (11) that “failure to ensure that the accessible facilities were available and ready to be used by the [P]laintiff is a violation of the law.” (Compl., ¶¶ 1-24.)

Plaintiff’s allegations are insufficient under Section 425.50. Plaintiff concludes that Defendants did not provide wheelchair-accessible paths leading to the entrance of the store but did not allege any facts demonstrating how (e.g., the entrance was too narrow, stairs were present without an accessible ramp). In opposition, Plaintiff argues the parties know what this case is about. (Oppo., p. 2:8-10.) Regardless, Section 425.50 requires that Plaintiff specifically identify the access barrier in his Complaint. Notably, both parties submit exhibits and photographs but neither has requested judicial notice of the documents submitted. As is well-established, in ruling on a demurrer, a court does not consider evidence or other matter not subject to judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Defendants also argue Plaintiff has not sufficiently alleged the reason he was in the geographic area. (3/15/21 Reply, p. 4:2-7.) Plaintiff’s allegation that he was in the area because he lives “just 10 miles away” and because he frequents the area is insufficient and vague. (Compl., ¶ 9.)

Defendants further argue that Plaintiff did not sufficiently allege the reason he desired access to Defendants’ business. (Dem., p. 4:25-26.) However, Plaintiff did so. He alleges that he desired to access the business not only to avail itself of Green Easy’s goods, but also to assess Green Easy’s compliance with disability access laws. (Compl., ¶ 8.) The Court finds this to be sufficient.

Thus, the Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

IV. Conclusion & Order

For the foregoing reasons, Defendants MGR Properties, LLC and The Van Nuys Group, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party is ordered to give notice.

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