This case was last updated from Los Angeles County Superior Courts on 10/18/2021 at 01:03:55 (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

  • 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 Attorneys

BALLISTER RAYMOND GEORGE JR

PRICE DENNIS JAY

BALLISTER RAYMOND G.

Defendant Attorney

SAHELIAN ARA

 

Court Documents

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

10/12/2021: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Notice of Ruling - Notice of Ruling

10/12/2021: Notice of Ruling - Notice of Ruling

Reply (name extension) - Reply in Support of Demurrer

10/4/2021: Reply (name extension) - Reply in Support of Demurrer

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

10/4/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

10/4/2021: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

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

10/4/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Opposition (name extension) - Opposition to Demurrer

9/23/2021: Opposition (name extension) - Opposition to Demurrer

Opposition (name extension) - Opposition to Motion to Strike

9/23/2021: Opposition (name extension) - Opposition to Motion to Strike

Declaration (name extension) - Declaration of Zachary Best

9/23/2021: Declaration (name extension) - Declaration of Zachary Best

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

9/24/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Motion re: (name extension) - Motion re: to Strike FAC

8/31/2021: Motion re: (name extension) - Motion re: to Strike FAC

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

8/31/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

8/31/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Memorandum (name extension) - Memorandum of Points and Authorities in Support of Defendants' Demurrer

8/31/2021: Memorandum (name extension) - Memorandum of Points and Authorities in Support of Defendants' Demurrer

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

8/31/2021: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

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

8/31/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Declaration (name extension) - Declaration of Rachael Lavi

8/31/2021: Declaration (name extension) - Declaration of Rachael Lavi

Declaration (name extension) - Declaration of Demurring Party In Support of Automatic Extension

7/26/2021: Declaration (name extension) - Declaration of Demurring Party In Support of Automatic Extension

33 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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  • 10/12/2021
  • DocketNotice of Ruling; Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 10/12/2021
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 10/12/2021
  • DocketUpdated -- Raymond George Ballister, Jr (Attorney): First Name changed from RAYMOND to Raymond; Last Name changed from BALLISTER to Ballister; Name Suffix: Jr; Middle Name changed from G. to George

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  • 10/12/2021
  • DocketAddress for Raymond George Ballister, Jr (Attorney) updated

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  • 10/12/2021
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 10/12/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/12/2021; Result Type to Held

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  • 10/04/2021
  • DocketMotion to Strike (not initial pleading); Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 10/04/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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  • 10/04/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: MGR Properties, LLC a California Limited Liability Company (Defendant)

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38 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

b"

Case Number: 20STLC07729 Hearing Date: October 12, 2021 Dept: 25

PROCEEDINGS: DEMURRER\r\nTO PLAINTIFF’S FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

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MOVING PARTY: Defendants\r\nMGR Properties, LLC and The Van Nuys Group, Inc.

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RESP. PARTY: Plaintiff Brian Whitaker

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DEMURRER

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(CCP § 430.10, et seq.)

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TENTATIVE RULING:

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(1) Defendants MGR Properties, LLC and\r\nThe Van Nuys Group, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED\r\nWITH 20 DAYS’ LEAVE TO AMEND.

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(2) Defendants’ Motion to Strike is\r\nalso GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

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SERVICE: \r\n

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[X] Proof of Service Timely\r\nFiled (CRC, rule 3.1300) OK

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[X] Correct Address (CCP §§\r\n1013, 1013a) OK

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

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Demurrer

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OPPOSITION: Filed on September 23,\r\n2021 [ ] Late [ ] None

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REPLY: Filed on October\r\n4, 2021 [ ] Late [ ] None

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Motion to Strike

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OPPOSITION: Filed on September 23,\r\n2021 [ ] Late [ ] None

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REPLY: Filed on\r\nOctober 4, 2021 [ ] Late [ ] None

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ANALYSIS:

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I. \r\nBackground

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On September 11, 2020, Plaintiff Brian Whitaker (“Plaintiff”)\r\nfiled an action alleging violations of the Unruh Civil Rights Act against\r\nDefendants MGR Properties, LLC (“MGR”) and The Van Nuys Group, Inc. (“VNG”)\r\n(collectively, “Defendants”).

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Defendants filed a demurrer to the Complaint on December\r\n9, 2020, which was sustained with 20 days’ leave to amend on May 4, 2021.\r\n(5/4/21 Minute Order.) Plaintiff filed his First Amended Complaint on May 21.

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Defendants filed the instant Demurrer and Motion to\r\nStrike the First Amended Complaint on August 31, 2021. Plaintiff filed\r\noppositions on September 23 and Defendants filed reply briefs on October 4.

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II. \r\nLegal\r\nStandard

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

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

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

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“A demurrer tests the legal sufficiency of the\r\nfactual allegations in a complaint.” (Ivanoff\r\nv. Bank of

\r\n\r\n

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

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

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

\r\n\r\n

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

\r\n\r\n

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

\r\n\r\n

factual allegations, facts that reasonably can be\r\ninferred from those expressly pleaded and matters of

\r\n\r\n

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

\r\n\r\n

however, assume the truth of contentions, deductions or\r\nconclusions of law. [Citation.]” (Durell\r\nv.

\r\n\r\n

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

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

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Leave to\r\namend must be allowed where there is a reasonable possibility of successful\r\namendment. (Goodman v. Kennedy (1976)\r\n18 Cal.3d 335, 348.) The burden is on\r\nthe complainant to show the Court that a pleading can be amended successfully.\r\n(Id.)

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Finally,\r\nCode of Civil Procedure section 430.41 requires that “[b]efore filing a\r\ndemurrer pursuant to this chapter, the demurring party shall meet and confer in\r\nperson or by telephone with the party who filed the pleading that is subject to\r\ndemurrer for the purpose of determining whether an agreement can be reached\r\nthat would resolve the objections to be raised in the demurrer.” (Code Civ.\r\nProc., § 430.41, subd. (a).) The parties are to meet and confer at least five\r\ndays before the date the responsive pleading is due. (Code Civ. Proc., §\r\n430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a\r\ndeclaration detailing their meet and confer efforts. (Code Civ. Proc., §\r\n430.41, subd. (a)(3).)

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III. \r\nDemurrer

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A. Legal Standard

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

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

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

\r\n\r\n

“A demurrer tests the legal sufficiency of the\r\nfactual allegations in a complaint.” (Ivanoff\r\nv. Bank of

\r\n\r\n

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

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

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“read passages from a complaint in isolation; in\r\nreviewing a ruling on a demurrer, we read the

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

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

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factual allegations, facts that reasonably can be\r\ninferred from those expressly pleaded and matters of

\r\n\r\n

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

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however, assume the truth of contentions, deductions or\r\nconclusions of law. [Citation.]” (Durell\r\nv.

\r\n\r\n

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

\r\n\r\n

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

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Leave to\r\namend must be allowed where there is a reasonable possibility of successful\r\namendment. (Goodman v. Kennedy (1976)\r\n18 Cal.3d 335, 348.) The burden is on\r\nthe complainant to show the Court that a pleading can be amended successfully.\r\n(Id.)

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\r\n\r\n

Finally,\r\nCode of Civil Procedure section 430.41 requires that “[b]efore filing a\r\ndemurrer pursuant to this chapter, the demurring party shall meet and confer in\r\nperson or by telephone with the party who filed the pleading that is subject to\r\ndemurrer for the purpose of determining whether an agreement can be reached\r\nthat would resolve the objections to be raised in the demurrer.” (Code Civ.\r\nProc., § 430.41, subd. (a).) The parties are to meet and confer at least five\r\ndays before the date the responsive pleading is due. (Code Civ. Proc., §\r\n430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a\r\ndeclaration detailing their meet and confer efforts. (Code Civ. Proc., §\r\n430.41, subd. (a)(3).)

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B. Discussion

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Defendants include a declaration from their attorneys\r\ndemonstrating the parties met and conferred regarding the FAC and a possible\r\nsecond amended complaint but were unable to come to a resolution. (Dem., Lavi\r\nDecl., ¶ 3.)

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Defendants demur to the Unruh Civil Rights Act violation\r\ncause of action alleged in the FAC on the basis that it fails to state\r\nsufficient facts. (Notice of Demurrer, p. 2.)

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Plaintiff alleges the following: (1) that Plaintiff is a\r\nparaplegic who suffers from a spinal cord injury and uses a wheelchair for\r\nmobility; (2) that Plaintiff is a high frequency litigant that has filed\r\napproximately 468 cases in the prior 12-month period; (3) that Defendant MGR\r\nowns, and has owned since June 2019, real property located at 8311 Beverly Blvd.,\r\nLos Angeles, CA (the “Subject Property”); (4) that Defendant VNG owns, and has\r\nowned since June 2019, the store “Green Easy” located on or about the Subject\r\nProperty; (5) that Plaintiff visited the store on June 18, 2019 “with the\r\nintention to avail himself of its goods, motivated in part to determine if the Defendants\r\ncomply with the disability access laws”; (6) that Plaintiff was in the\r\ngeographical area because lives only 10 miles from the Green Easy store; (7)\r\nthat he frequents the geographical area because “he enjoys shopping at the\r\nestablishments in the area on a regular basis”; (8) that on the date of\r\nPlaintiff’s visit, the “entrance to the store ha[d] a step that is in violation\r\nof the ADA” because “[a]s a wheelchair user, Plaintiff requires a properly an\r\naccessible ramp to access the interior of the store” [sic]; (9) that Plaintiff\r\npersonally encountered these barriers; and (10) that the lack of accessible\r\nfacilities created difficulty and discomfort for the Plaintiff.

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“California’s Unruh Civil Rights Act\r\nprovides: ‘All persons within the jurisdiction of this state are free and equal\r\nand no matter what their….disability… are entitled to the full and\r\nequal accommodations, advantages, facilities, privileges, or services in\r\nall business establishments of every kind whatsoever. (Civ. Code, § 51, subd.\r\n(b).) A violation of any\r\nindividual right under the Federal Americans with Disabilities Act (“ADA”) is\r\nalso a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under\r\nthe ADA, “[n]o individual shall be discriminated against on the basis of\r\ndisability in the full and equal enjoyment of the goods, services, facilities,\r\nprivileges, advantages, or accommodations of any place of public accommodation\r\nby any person who owns, leases (or leases to), or operates a place of public\r\naccommodation.” (42 U.S.C. § 12182(a).) Under the ADA, a place of public\r\naccommodation expressly includes establishments that serve food or drink. (42\r\nU.S.C. § 12181(7)(B).)

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The elements of a claim for\r\nconstruction-related violation of the Unruh Act are that: (1) Plaintiff is a\r\nqualified individual with a disability; (2) Defendant owned, leased, or\r\noperated a place of public accommodation; (3) the place of public accommodation\r\nwas in violation of one or more construction-related accessibility standards;\r\n(4) the violations denied Plaintiff full and equal access to the place of\r\npublic accommodation; and (5) the violations were personally encountered by\r\nPlaintiff or was deterred from accessing a place of public accommodation on a particular\r\noccasion. (Cal. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises (2011)\r\n192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168 Cal.App.4th\r\n414.) Intentional discrimination, however, need not be proved to obtain damages\r\nunder the Unruh Civil Rights Act when the plaintiff establishes a violation of\r\nthe ADA. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 665.)

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

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“(a) An allegation of a construction-related\r\naccessibility claim in a complaint, as defined in subdivision (a) of Section\r\n55.52 of the Civil Code, shall state facts sufficient to allow a reasonable\r\nperson to identify the basis of the violation or violations supporting the\r\nclaim, including all of the following:

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\r\n\r\n

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

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(2) The way in which the barrier denied the individual full\r\nand equal use or access, or in which it deterred the individual, on each\r\nparticular occasion.

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(3) The date or dates of each particular occasion on\r\nwhich the claimant encountered the specific access barrier, or on which he or\r\nshe was deterred.

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(4)(A) Except in complaints that allege physical injury\r\nor damage to property, a complaint filed by or on behalf of a high-frequency\r\nlitigant shall also state all of the following:

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(i) Whether the complaint is filed by, or on behalf of, a\r\nhigh-frequency litigant.

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(ii) In the case of a high-frequency litigant who is a\r\nplaintiff, the number of complaints alleging a construction-related\r\naccessibility claim that the high-frequency litigant has filed during the 12\r\nmonths prior to filing the complaint.

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(iii) In the case of a high-frequency litigant who is a\r\nplaintiff, the reason the individual was in the geographic area of the\r\ndefendant's business.

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(iv) In the case of a high-frequency litigant who is a\r\nplaintiff, the reason why the individual desired to access the defendant's\r\nbusiness, including the specific commercial, business, personal, social,\r\nleisure, recreational, or other purpose.

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(Code Civ. Proc., § 425.50, subd.\r\n(a).)

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Defendants argue that there is no\r\nplain language explanation of the specific access barriers Plaintiff\r\nencountered with enough information of the alleged barriers to enable a\r\nreasonable person to identify the barrier, that there is no explanation as to\r\nhow any alleged barrier denied Plaintiff full access or use on a particular\r\noccasion, and that there is no sufficiently specific allegation regarding why\r\nPlaintiff desired access to the Green Easy Store (Dem., pp. 5-7.)

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\r\n\r\n

There are currently no reported\r\nstate cases determining the sufficiency of allegations under the heightened\r\npleading standard set forth in Section 425.50. However, several federal cases\r\ndiscuss the sufficiency of allegations, including Whitaker v. Tesla Motors,\r\nInc. (2021) 985 F.3 1173, a 9th Circuit case, which this Court finds\r\npersuasive.

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In Tesla, which involves the same Plaintiff as\r\nthis action, the court considered whether the plaintiff’s allegations that the\r\ndefendant had violated Title III of the ADA and the Unruh Act were sufficiently\r\npleaded. (Id. at p. 1175.) The plaintiff alleged that he encountered\r\ninaccessible service counters that denied him full access to the Tesla\r\ndealership and created “difficulty and discomfort” as a result. (Id. at\r\np. 1174.) In affirming the lower court’s determination that the complaint\r\nfailed to allege sufficient facts, the 9th Circuit found the plaintiff’s\r\nallegations that the defendant “failed to provide accessible service counters,”\r\nthat he “personally encountered” those counters, and that he was denied full\r\nand equal access did little more than recite the elements of an ADA claim and\r\nfell short of putting the defendant on notice as to how the counters\r\nprevented the defendant from full and equal access to the facility. (Id.\r\nat p. 1177.) The Court stated, the “complaint failed to answer basic questions:\r\nWere the service counters too low? Or too high? Were they positioned in an area\r\nthat was inaccessible for another reason? Without this sort of detail, the\r\ndistrict court and Tesla were left in the dark about how the service counters\r\ndenied [the plaintiff] from full and equal enjoyment of the premises.” (Id.)\r\nIn a footnote, the 9th Circuit also stated that the Unruh Act is coextensive\r\nwith the ADA and thus, their analysis of the ADA claim applies equally to the\r\nUnruh Act claim. (Id. at p. 1175, fn. 2.)

\r\n\r\n

\r\n\r\n

Plaintiff’s factual allegations here are similarly\r\ninsufficient. Plaintiff’s only factual allegations related to the alleged\r\nbarrier are that (1) there was a step at the entrance of the store and (2) that\r\nPlaintiff needs a ramp to access the interior of the store. (FAC, ¶¶ 11.) However,\r\nPlaintiff does not clearly allege how the alleged barrier denied the individual\r\nfull and equal access to the Green Easy store. The fact that there is a step at\r\nthe entrance of the store does not automatically amount to a violation of the\r\nADA. While a change in level, such as a step, greater than inch\r\nmay be considered an ADA violation, it is not a violation if a ramp is also\r\navailable. (36 C.F.R. Pt. 1191, App. D, § 303.1-303.4.) (Emphasis added.)

\r\n\r\n

\r\n\r\n

Here, Plaintiff does not allege the absence of a ramp or\r\nthat the “step” was too high. His remaining allegations that (1) on the date of\r\nPlaintiff’s visit, Defendants failed to provide wheelchair-accessible paths of\r\ntravel leading to the interior of the Green Easy in conformance with ADA\r\nstandards, (2) that Defendants failed to provide accessible facilities, (3)\r\nthat Defendants denied Plaintiff full and equal access; and (4) that Defendants\r\n“failed to maintain in working and useable conditions those features required\r\nto provide ready access to persons with disabilities” are legal conclusions,\r\nnot facts.

\r\n\r\n

\r\n\r\n

Defendants argue Plaintiff’s allegations that he was in\r\nthe geographical area because he lives just 10 miles from the Green Easy and that\r\nhe frequents the area because he enjoys shopping at the establishments in the\r\narea regularly are insufficient to meet the heightened pleading requirements. (Dem.,\r\npp. 6-7.) They further argue that Plaintiff is under a duty to allege with\r\ngreater specificity the reason he was in the neighborhood or the unique product\r\nor service the neighborhood is known for. (Id.) However, Defendants cite\r\nno case law demonstrating this is necessary. The Court finds Plaintiff’s\r\nallegations regarding the reason he was in the geographical area to be\r\nsufficient.

\r\n\r\n

\r\n\r\n

Further,\r\nDefendants argue that Plaintiff failed to allege the reason he desired access\r\nto the Green Easy store given that there are several marijuana dispensaries\r\nnear his place of residence. (Dem., p. 2.) This argument was raised by\r\nDefendants in their prior demurrer and overruled. (5/4/21 Minute Order.) Again,\r\nPlaintiff alleged he wanted to access the goods Green Easy offered and to\r\nassess Green Easy’s compliance with disability access laws. (FAC, ¶ 8.) This is\r\nsufficient. Defendant has not cited any authority demonstrating otherwise.

\r\n\r\n

\r\n\r\n

Thus, the Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO\r\nAMEND.

\r\n\r\n

\r\n\r\n

IV. \r\nMotion\r\nto Strike

\r\n\r\n

\r\n\r\n

A. Legal Standard

\r\n\r\n

\r\n\r\n

California law authorizes a party’s motion to strike\r\nmatter from an opposing party’s pleading if it is irrelevant, false, or\r\nimproper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target\r\npleadings or parts of pleadings that are not filed or drawn in conformity with\r\napplicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).)

\r\n\r\n

\r\n\r\n

However, motions to strike in limited jurisdiction courts\r\nmay only challenge pleadings on the basis that “the damages or relief sought\r\nare not supported by the allegations of the complaint.” (Code Civ. Proc. § 92,\r\nsubd. (d).) The Code of Civil Procedure\r\nalso authorizes the Court to act on its own initiative to strike matters,\r\nempowering the Court to enter orders striking matter “at any time in its\r\ndiscretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

\r\n\r\n

\r\n\r\n

Finally, Code of Civil Procedure section 435.5 requires\r\nthat “[b]efore filing a motion to strike pursuant to this chapter, the moving\r\nparty shall meet and confer in person or by telephone with the party who filed\r\nthe pleading that is subject to the motion to strike for the purpose of\r\ndetermining whether an agreement can be reached that resolves the objections to\r\nbe raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

\r\n\r\n

\r\n\r\n

B. Discussion

\r\n\r\n

\r\n\r\n

Defendants argue that Plaintiff’s unverified FAC must be\r\nstricken because, under Code of Civil Procedure section 425.50, subdivision\r\n(b)(1), a complaint alleging a construction-related disability claim must be\r\nverified. (Mot., p. 1.) They further argue that because the federal claims were\r\npreviously dismissed and because a demurrer was previously sustained with leave\r\nto amend, the Court must now strike the FAC without leave to amend. (Notice of\r\nMot., p. 1; Mot., pp. 1-2.)

\r\n\r\n

\r\n\r\n

The Court disagrees. This is an easily correctible error\r\nthat does not warrant an order depriving Plaintiff of the opportunity to amend.\r\nIn his opposition, Plaintiff admits the FAC was not verified due to a clerical\r\nerror and requests that leave to amend be granted so that this error may be\r\nremedied. (Oppo. to Mot. to Strike, pp. 1-2, Best Decl., ¶ 1.)

\r\n\r\n

\r\n\r\n

Thus, the Motion to Strike is GRANTED with 20 days’ leave\r\nto amend.

\r\n\r\n

\r\n\r\n

V. \r\nConclusion\r\n& Order

\r\n\r\n

\r\n\r\n

For the foregoing reasons, (1)\r\nDefendants MGR Properties, LLC and The Van Nuys Group, Inc.’s Demurrer to the\r\nFirst Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

\r\n\r\n

\r\n\r\n

(2) Defendants’ Motion to Strike is\r\nalso GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

\r\n\r\n

\r\n\r\n

Moving parties are ordered to give\r\nnotice.

\r\n\r\n

"

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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