BRIAN WHITAKER VS PACHANGA MEXICAN GRILL, A CALIFORNIA CORPORATION

Tentative Rulings

Case Number: 20STLC03367    Hearing Date: February 24, 2021    Dept: 25

HEARING DATE: Wed., February 24, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Whitaker v. Pachanga Mexican Grill COMPL. FILED: 04-15-20

CASE NUMBER: 20STLC03367 DISC. C/O: 09-23-21

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendant Pachanga Mexican Grill

RESP. PARTY: Plaintiff Brian Whittaker

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Pachanga Mexican Grill’s Demurrer to Plaintiff’s Complaint is OVERRULED.

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 December 29, 2020 [ ] Late [ ] None

REPLY: Filed on February 17, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On April 15, 2020, Plaintiff Brian Whitaker (“Plaintiff”) filed this verified complaint for violations of the Unruh Civil Rights Act against Defendant Pachanga Mexican Grill (“Defendant”).

Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”) on August 4, 2020. Plaintiff filed an Opposition on December 29, 2020 and Defendant filed a Reply on February 17, 2021.

1. 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).)

1. Request for Judicial Notice

Defendant requests judicial notice of (1) the complaint Plaintiff filed in federal district court entitled Whitaker v. Pachanga Mexican Grill Case No. 2:20-cv-01820-RGK-RAO (the “Federal Action”) and (2) the Joint Stipulation for Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(ii) filed in Case No. 2:20-cv-01820-RGK-RAO. (Dem., RJN, p. 2.)

Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

1. Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a).

A. Violations of the Unruh Civil Rights Act

Plaintiff alleges the following: (1) that he is a California resident with physical disabilities who uses a wheelchair for mobility; (2) that Defendant owns a restaurant located at 1590 Rosecrans Ave., Manhattan Beach, CA (the “Restaurant”); (3) that the Restaurant is open to the public and a place of public accommodation; (4) that Plaintiff went to the Restaurant on January 29, 2020 to eat but was unable to because Defendant’s Restaurant did not offer wheelchair-accessible dining surfaces, wheelchair-accessible sales counters, wheelchair-accessible condiments counters, or wheelchair-accessible paths of travel; (5) that Plaintiff encountered these barriers, which created difficulty and discomfort ; (6) that Plaintiff first filed a federal action on February 6, 2020; (7) that the federal claim was settled, but the state claim was not. (Compl., ¶¶ 1, 3, 7, 9-16, 19.)

Defendant demurs to Plaintiff’s Complaint on the basis that a prior settlement agreement between the parties operates as a retraxit, thus barring any further litigation on the matter. (Notice of Dem., pp. 1-2.) “At common law, a ‘retraxit’ was ‘an open and voluntary renunciation of the suit in open court.’[Citation.]” (Rice v. Crow (2000) 81 Cal.App.4th 725, 733.) “A dismissal with prejudice is the modern name for a common law retraxit. [Citation.]” (Id.) “Since a retraxit ‘invok[es] the principles of res judicata,’ it of course follows that a retraxit only bars claims dismissed with prejudice between the same parties or their privies.” [Citation.] (Id. at p. 735; Torrey Pines Bank v. Superior Court, 216 Cal.App.3d 813, 820 [stating that “[a] retraxit is equivalent to a judgment on the merits and as such bars further litigation on the same subject matter between the parties”].)

The complaint filed in the Federal Action, which has been judicially noticed, was based on the same incident as this action. In federal court, Plaintiff sought relief for a federal claim under the Americans with Disabilities Act and for a state claim under the Unruh Civil Rights Act. (Dem., RJN, Exh. A.) In Opposition, Plaintiff submits a copy of the federal court’s order dated March 23, 2020. (Oppo., Handy Decl., ¶ 3, Exh. B.) Notably, Defendant did not request judicial notice of this document. As noted above, the Court can only consider the pleadings and matters which have been judicially noticed, not any extrinsic evidence, in issuing a ruling on the demurrer. (Harris, supra, 56 Cal.4th p. 240.) The Court may take judicial notice of this document sua sponte, but only if the opposing party has an opportunity to respond to the matter. (Evid. Code, §§ 450; 455, subd. (a).) As this document was filed with Plaintiff’s December 29, 2020 Opposition, and because Defendant did not object to, and indeed references, this document in Reply, the Court takes judicial notice of the March 23, 2020 federal court order sua sponte.

The March 23, 2020 order explains the federal court’s decision not to exercise supplemental jurisdiction over Plaintiff’s state Unruh Act claim. (Oppo., Handy Decl., ¶ 3, Exh. B.) The federal court stated: “Exercising the Court’s discretion to decline supplemental jurisdiction does not deprive plaintiff of any remedies. Nor does it allow an ADA claim for injunctive relief to go unaddressed. The ADA claim remains pending in this Court.” (Id.) (Emphasis added.) Thus, the only claim that remained pending in federal court as of March 23, 2020 was the federal ADA claim.

The federal action was thereafter dismissed pursuant to the parties’ Joint Stipulation dated July 2, 2020, which states in its entirety:

“Pursuant to F.R.CIV.P.41 (a)(1)(A)(ii), IT IS STIPULATED by and between the parties hereto that this action may be dismissed with prejudice as to all parties; each party to bear his/her/its own attorneys’ fees and costs. This stipulation is made as the matter has been resolved to the satisfaction of all parties.” (Dem., RJN, Exh. 2.)

As the only pending claim was the federal ADA claim, the dismissal with prejudice applied only to the federal ADA claim, not the state law claim which had already been dismissed.

Defendant provides a copy of an Offer of Judgment, dated March 24, 2020, in which Defendant offered to allow the entry of judgment against them in the Federal Action. (Dem., Sahelian Decl., ¶ 4, Exh. 4.) The Offer of Judgment states, in pertinent part:

“1. A judgment in favor of Plaintiff, and against Defendants, jointly and severally, in the sum of $3,750 (Three Thousand Seven Hundred Fifty Dollars). This amount shall be the total amount paid by Defendants in relation to any liability claimed in the action, including all costs and attorney’s fees, otherwise recoverable in the action by Plaintiff.” (Dem., Sahelian Decl., ¶ 4, Exh. 4.)

However, Defendant did not request judicial notice of this document. Even if judicial notice had been requested, the Court could not take judicial notice of the Offer of Judgment under Evidence Code section 452, subdivision (d) because it was never filed with the federal court. (Dem., p. 3:13-17.) Nor does it fall within any other category of permissible judicial notice. Thus, the Court cannot take the Offer of Judgment into consideration in ruling on this Demurrer. Notably, the July 2, 2020 Joint Stipulation to dismiss the Federal Action does not mention the Offer of Judgment or that the matter would be settled for $3,750. Thus, Defendant has not demonstrated Plaintiff’s Unruh Civil Rights Act claim was dismissed with prejudice.

Relying on Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, Defendant argues that Plaintiff’s state action is barred he because chose to proceed with his federal claim in federal court and forego the state claim rather than dismissing his federal action and re-filing both claims in state court. (Dem., pp. 14:5-15:12.) In Mattson, the Court held that “because [the] plaintiff had elected to proceed in the face of the federal court’s refusal to exercise pendent jurisdiction, his state action was merged in and barred by [a] federal judgment.” (Id.)

In Opposition, Plaintiff cites Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 227, a more recent case, arguing that a federal court’s refusal to exercise pendent jurisdiction over state law claims is not a bar to a subsequent state law claim. (Oppo., pp. 4:15-6:21.) In Lucas, a plaintiff filed both state law and federal law claims. (Lucas v. County of Los Angeles, supra, 47 Cal.App.4th at p. 277.) The federal court noted that the plaintiff was required to prove deliberate indifference to, and subjective knowledge of, a prisoner’s serious illness or injury while the state law claim only required actual or constructive knowledge to prevail. (Id.) The court of appeals stated:

“A federal court’s discretionary refusal to exercise pendent jurisdiction over a state law claim does not bar further litigation of the state claim in state court. [Citation.] The correct question recognized by the trial court is not whether a state claim could be brought but rather the effect that must be accorded a conclusion of law in a related case on the same facts. That is a question of collateral estoppel. Collateral estoppel ‘…means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ [Citations.] (Id. at p. 286.)

Collateral estoppel requires “(1) that the issue sought to be precluded must be identical to that decided in a former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) it must have been necessarily decided in the former proceeding; (4) the prior decision must be final and on the merits; and (5) the party against whom preclusion is sought must be the same or in privity with the party in the prior proceeding. [Citation.]” (Id.) Collateral estoppel applies to issues litigated, even though some factual matters or legal arguments which could have been raised were not. (Id.)

Here, Plaintiff’s state law claim is based on the same set of facts as his federal law claim, that is, Defendant’s alleged violation of the Americans with Disabilities Act. However, the issue of whether Defendant’s Restaurant violated the ADA was not actually litigated in Federal Action. Thus, the Court cannot find that collateral estoppel applies. Notably, Defendant’s Reply does not address Plaintiff’s argument based on the Lucas case.

Accordingly, the Demurrer is OVERRULED.

1. Conclusion & Order

For the foregoing reasons, Defendant Pachanga Mexican Grill’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Moving party is ordered to give notice.