BRIAN WHITAKER VS PACHANGA MEXICAN GRILL, A CALIFORNIA CORPORATION

Tentative Rulings

b'

Case Number: 20STLC03367 Hearing Date: September 8, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

\r\n\r\n

\r\n\r\n

MOVING PARTY: Plaintiff\r\nBrian Whitaker

\r\n\r\n

RESP. PARTY: Defendant Pachanga Mexican Grill

\r\n\r\n

\r\n\r\n

MOTION FOR SUMMARY JUDGMENT OR,\r\nIN THE ALTERNATIVE, SUMMARY ADJUDICATION

\r\n\r\n

(CCP § 437c)

\r\n\r\n

\r\n\r\n

TENTATIVE RULING:

\r\n\r\n

\r\n\r\n

Plaintiff Brian Whitaker’s Motion for\r\nSummary Judgment or, in the Alternative, Summary Adjudication, is DENIED.

\r\n\r\n

\r\n\r\n

SERVICE: \r\n

\r\n\r\n

\r\n\r\n

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

\r\n\r\n

[X] Correct Address (CCP 1013,\r\n1013a) OK

\r\n\r\n

[X] 75/80 Day Lapse (CCP 12c\r\nand 1005 (b)) OK

\r\n\r\n

\r\n\r\n

OPPOSITION: Filed on July 19, 2021 [X] Late [ ] None

\r\n\r\n

REPLY: Filed on July\r\n22, 2021 [ ] Late [ ] None

\r\n\r\n

SUR-REPLY: Filed on August 16,\r\n2021 [ ] Late [ ] None

\r\n\r\n

\r\n\r\n

ANALYSIS:

\r\n\r\n

\r\n\r\n

I. \r\nBackground\r\n

\r\n\r\n

\r\n\r\n

On April 15, 2020, Plaintiff Brian Whitaker (“Plaintiff”)\r\nfiled an action against Defendant Pachanga Mexican Grill (“Defendant”) alleging\r\nviolations of the Unruh Civil Rights Act.

\r\n\r\n

\r\n\r\n

Defendant filed a demurrer to the Complaint on August 4,\r\n2020, which was overruled by this Court on February 24, 2021. (2/24/21 Minute\r\nOrder.)

\r\n\r\n

\r\n\r\n

Plaintiff filed the instant Motion for Summary Judgment or,\r\nin the Alternative, Summary Adjudication (the “Motion”) on March 18, 2021. Two\r\ndays later, on March 20, Defendant filed its Answer. Defendant filed an\r\nopposition to the Motion on July 19 and Plaintiff filed a reply on July 22.

\r\n\r\n

\r\n\r\n

At the initial July 29 hearing, the found that Plaintiff\r\nhad filed and served additional evidence as well as a request for judicial\r\nnotice with his reply papers. (7/29/21 Minute Order.) Because of this, the\r\nCourt was required to give Defendant an opportunity to respond, it continued\r\nthe hearing. (Id.)

\r\n\r\n

\r\n\r\n

Defendant filed a sur-reply brief on August 16.

\r\n\r\n

\r\n\r\n

II. \r\nRequest\r\nfor Judicial Notice

\r\n\r\n

\r\n\r\n

Defendant requests judicial notice of the complaint filed\r\nin federal district court by Plaintiff in Whitaker v. Pachanga, Case No.\r\n2:20-cv-01820-RGK-RAO (the “Federal Action”). (Oppo., RJN, Exh. L.) Defendant’s\r\nrequest is GRANTED. (Evid. Code, § 452, subd. (d).)

\r\n\r\n

\r\n\r\n

Plaintiff requests judicial notice of (1) the federal\r\ncourt’s order declining to exercise supplemental jurisdiction in the Federal Action;\r\nand (2) the federal court’s order granting default judgment and awarding\r\ndamages and attorney’s fees in Arroyo v. Doublz Par, Inc., Case no.\r\n2:19-cv-02331-RGK-MRW. (Reply, RJN, Exhs. 1, 3.) Plaintiff’s request is\r\nGRANTED. (Evid. Code, § 452, subd. (d).)

\r\n\r\n

\r\n\r\n

III. \r\nLegal\r\nStandard

\r\n\r\n

\r\n\r\n

A party seeking summary judgment has the burden of\r\nproducing evidentiary facts sufficient to entitle him/her to judgment as a\r\nmatter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an\r\naffirmative showing that he/she is entitled to judgment irrespective of whether\r\nor not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

\r\n\r\n

\r\n\r\n

When a Defendant or Cross-Defendant seeks summary\r\njudgment, he/she must show either\r\n(1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete\r\ndefense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When\r\na Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce\r\nadmissible evidence on each element of each cause of action on which judgment\r\nis sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s\r\n“affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’\r\nfacts” and be strictly construed. (Scalf\r\nv. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d\r\n629, 639.)

\r\n\r\n

\r\n\r\n

The opposing party on a motion for\r\nsummary judgment is under no evidentiary burden to produce rebuttal evidence\r\nuntil the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999)\r\n75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden\r\nshifts to the opposing party to show, with admissible evidence, that there is a\r\ntriable issue requiring the weighing procedures of trial. (Code Civ. Proc., §\r\n437c, subd. (p).) The opposing party may not simply rely on his/her allegations\r\nto show a triable issue but must present evidentiary facts that are substantial\r\nin nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any\r\nalternative request for summary adjudication of issues, such alternative relief\r\nmust be clearly set forth in the Notice of Motion and the general\r\nburden-shifting rules apply but the issues upon which summary adjudication may\r\nbe sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A\r\nmotion for summary adjudication shall be granted only if it completely disposes\r\nof a cause of action, an affirmative defense, a claim for damages, or an issue\r\nof duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

\r\n\r\n

\r\n\r\n

IV. \r\nDiscussion\r\n

\r\n\r\n

\r\n\r\n

With this Motion, Plaintiff moves for summary judgment,\r\nor adjudication in the alternative, to be entered in his favor and for an award\r\nof $4,000.00 in damages arguing no genuine dispute of material fact exists as\r\nto Defendant’s violation of the Unruh Civil Rights Act. (Notice of Mot., p.\r\n2.)

\r\n\r\n

\r\n\r\n

1. Unruh Civil Rights Act Violation

\r\n\r\n

\r\n\r\n

“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).)

\r\n\r\n

\r\n\r\n

A\r\nplaintiff can recover under the Unruh Civil Rights Act on two alternate\r\ntheories: (1) a violation of the ADA (§ 51, subd. (f)); or (2) denial of\r\naccess to a business establishment based on intentional discrimination.\r\n[Citations.]” (Martinez v. San Diego County Credit Union (2020) 50\r\nCal.App.5h 1048, 1059.) (Emphasis added.)

\r\n\r\n

\r\n\r\n

Under the ADA, discrimination includes “a failure to\r\nremove architectural barriers…, in existing facilities…, where such removal is\r\nreadily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)

\r\n\r\n

\r\n\r\n

Statutory penalties are available for\r\nconstruction-related accessibility violations of the Unruh Act only if a patron is denied full and\r\nequal access to the place of public accommodation on a particular occasion.\r\n(Cal. Civ. Code, § 55.56, subd. (a).) (Emphasis added.)

\r\n\r\n

\r\n\r\n

Under the statute, a plaintiff is denied full and equal\r\naccess only if the plaintiff\r\npersonally encounters the violation on a particular occasion or she or he is\r\ndeterred from accessing a place of public accommodation on a particular\r\noccasion. (Civ. Code, § 55.56 subd. (b).) “A violation personally encountered\r\nby a plaintiff may be sufficient to cause a denial of full and equal access if\r\nthe plaintiff experienced difficulty, discomfort, or embarrassment because of\r\nthe violation.” (Cal. Civ. Code, § 55.56, subd. (c).) A plaintiff cannot\r\nrecover statutory damages absent evidence that the violation caused him\r\ndifficulty, discomfort, or embarrassment. (Mundy v. Pro-Thro Enterprises\r\n(2011) 192 Cal.App.4th Supp. 1, 6.)

\r\n\r\n

\r\n\r\n

To demonstrate a plaintiff was deterred from accessing a\r\nplace of public accommodation, she or he must demonstrate both: “(1) [t]he\r\nplaintiff had actual knowledge of a violation of violations that prevented or\r\nreasonably dissuaded the plaintiff from accessing a place of public\r\naccommodation that the plaintiff intended to use on a particular occasion [and]\r\n(2) [t]he violation or violations would have actually denied the plaintiff full\r\nand equal access if the plaintiff had accessed the place of public\r\naccommodation on that particular occasion.” (Civ. Code, § 55.56, subd. (d).)

\r\n\r\n

\r\n\r\n

Failure to remove a physical element of the property that\r\ndoes not meet the ADA Accessibility Guidelines for Buildings and Facilities\r\n(“ADAAG”) amounts to discrimination under the ADA. (42 U.S.C., § 12182, subd.\r\n(b)(2)(A)(iv).) Any barrier that does not meet the standards set forth in the\r\nADAAG is considered a barrier to access. (Skaff v. Rio Nido Roadhouse (2020)\r\n55 Cal.App.5th 522, 534.)

\r\n\r\n

\r\n\r\n

Under the ADAAGs, where dining surfaces are provided for\r\nthe consumption of food and drink, at least five percent (5%) of the seating\r\nand standing spaces for dining must comply with section 902. (36 C.F.R. Pt.\r\n1191, App. B, § 226.1.) Under the ADAAGs, facilities must provide a toe\r\nclearance depth of a minimum of 17 inches and a maximum of 25 inches and must\r\nprovide a clearance width of a minimum of 30 inches. (36 C.F.R. Pt. 1191, App.\r\nD, §§ 902.1, 902.2.) In addition, sales counters and service counters must be\r\nat a maximum of 36 inches long and 36 inches high. (36 C.F.R. Pt. 1191, App. D,\r\n§§ 904.1, 904.4.) Further, walking surfaces must be a minimum of 36 inches\r\nwide. (36 C.F.R. Pt. 1191, App. D, § 403.5.)

\r\n\r\n

\r\n\r\n

In summary, the elements of a claim\r\nfor construction-related violation of the Unruh Act are that: (1) Plaintiff is\r\na qualified 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\r\nparticular occasion. (Cal. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises\r\n(2011) 192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168\r\nCal.App.4th 414.) Intentional discrimination, however, need not be proved to\r\nobtain damages under the Unruh Civil Rights Act when the plaintiff establishes\r\na violation of the ADA. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at\r\np. 665.)

\r\n\r\n

\r\n\r\n

2. Plaintiff’s Burden on Summary Judgment

\r\n\r\n

\r\n\r\n

The following facts are undisputed: (1) that Plaintiff\r\nhas a spinal cord injury; (2) that Plaintiff’s ability to walk and use his\r\nhands and arms is limited and uses his wheelchair for mobility; (3) that\r\nDefendant owns Pachanga Mexican Grill, a restaurant located at 1590 Rosecrans\r\nAve., Manhattan Beach, CA (the “Restaurant”) and did so in January 2020; (4)\r\nthat the dining area, service counter, and restrooms are public spaces. (Def.,\r\nSep. Stmt, UMF Nos. 1-4.)

\r\n\r\n

\r\n\r\n

As to the remaining elements, Plaintiff presents his\r\ndeclaration and a copy of a receipt to show that, on January 29, 2020, he\r\nvisited the Restaurant as well as several pictures of dining tables with center\r\npedestals and the inside of a restroom. (Mot., Whitaker Decl., ¶¶ 3-4, 12, Exhs.\r\n2, 3.) He states that, once inside, he noticed the sales counter was very high\r\nand did not see any lowered portion. (Id. at ¶ 5.) Plaintiff states that\r\nhandling transactions at anywhere between 30-36 inches is ideal for him, that\r\ntransacting at a greater height increases his difficulty because he has to\r\nengage at chest level or higher, forcing his arms higher, and that transacting\r\nat the Restaurant’s higher counter “was difficult and discomforting” for him. (Id.\r\nat ¶ 6.) He also found that the condiment counters were “very high,” did not\r\nsee any lowered portion, and states he “ended up having a difficult time reaching\r\nfor the items [he] needed.” (Id. at ¶ 7.) Plaintiff does not provide any\r\ndetails and to what items he needed. (Id.) Plaintiff further states that\r\nafter purchasing his meal, he saw several dining tables but all had center\r\npedestals and did not provide sufficient toe and knee clearance for his\r\nwheelchair. (Id. at ¶ 8.) Lastly, Plaintiff states that he needed to use\r\nthe restroom but when he attempted to do so, found that the passage leading\r\nthere was “very narrow” making it difficult to navigate. (Id. at ¶ 9.)

\r\n\r\n

\r\n\r\n

Plaintiff also presents the declaration of Evens Louis,\r\nan investigator. (Mot., Louis Decl., ¶ 1.) Louis states that, on February 13,\r\n2020, he went to the Restaurant and measured all the dining tables and found\r\nthey had “approximately” 3 to 15 inches of toe clearance and 7 to 19 inches of\r\nknee clearance. (Id. at ¶ 4.) He also measured the paths of travel and\r\nfound that some pathways narrowed to 16 inches between tables. (Id. at ¶ 5.) Additionally, he measured\r\nthe sales and condiment counters and found them to be “approximately” 40 inches\r\nand 55 inches high, respectively. (Id.\r\nat ¶ 6.) Louis also took several pictures on the day of his visit depicting\r\nseveral tables, paths of travel and sales and condiment counters. (Id. at ¶ 8, Exh. 5.) The photographs do\r\nnot include Louis’ actual measurements. (Id.)

\r\n\r\n

\r\n\r\n

Lastly, the Motion is supported by the declaration of\r\nSoyoung Ward, a Certified Access Specialist (“CASp”). (Mot., Ward Decl., ¶ 2.)\r\nWard visited the Restaurant on March 22, 2021 but, due to the pandemic, dine-in\r\nservices were not yet being offered. (Id.\r\nat ¶¶ 7-9, Exh. 7.) On the date of her investigation, she found the Restaurant\r\nhad 14 chairs and 4 tables, which were the appropriate height and had\r\nsufficient knee and toe clearance. (Id.)\r\nShe also found the sales counter measured 33 inches and was 37 inches long,\r\nallowing for a parallel approach. (Id.\r\nat ¶ 10.) Although the self-service condiment counter was empty on the date of\r\nher visit due to COVID-19 restrictions, it measured 33 ½ inches above the\r\nfloor. (Id. at ¶ 11.) Further, Ward\r\nmeasured the paths of travel inside the restaurant, which were all at least 36\r\ninches wide. (Id. at ¶ 12.) Ward\r\nsubmitted a detailed report of her findings with pictures of the elements and\r\nmeasurements discussed above. (Id. at\r\n¶¶ 8, 12, Exh. 7.)

\r\n\r\n

\r\n\r\n

First, although Louis states he took measurements of the\r\ntables, paths of travel, and sales and condiment counters, he provides no\r\ndocumentary evidence like Ms. Ward of these measurements other than his own\r\nstatement providing “approximate” measurements. As such, the Court cannot\r\nconfirm the measurements or conclude these elements violated the ADAAGs on the\r\ndate of his visit.

\r\n\r\n

\r\n\r\n

In addition, discussed above, an essential element of\r\nthis action is Plaintiff’s state of mind, specifically, his embarrassment,\r\ndiscomfort, or difficulty that resulted from the alleged barrier. Pursuant to\r\nCode of Civil Procedure section 437c, subdivision (e), even when a party is\r\notherwise entitled to summary judgment, it may be denied “if the only proof of\r\na material fact offered in support of the summary judgment is an affidavit or\r\ndeclaration made by an individual who was the sole witness to that fact; or, if\r\na material fact is an individual’s state of mind, or lack thereof, and that\r\nfact is sought to be established solely by the individual’s affirmation\r\nthereof.”

\r\n\r\n

\r\n\r\n

Here, Plaintiff’s declaration about his embarrassment and\r\ndifficulty is too limited. Plaintiff admits he is a high-frequency litigant\r\nhaving filed more than 500 construction-related accessibility claims in the\r\npast 12 months. (Compl. ¶ 2.) Thus, Plaintiff visits businesses quite often.\r\nHowever, his explanation regarding how the alleged violations present at this Restaurant caused him difficulty\r\nand discomfort are quite generic with few specific details. Notably, the Court\r\nhas the discretion to deny summary judgment even when a declaration attesting\r\nto the subject state of mind has not been controverted. Here, it is too\r\ndifficult to determine whether and to what degree Plaintiff experienced difficulty,\r\ndiscomfort, or embarrassment at the subject Restaurant.

\r\n\r\n

\r\n\r\n

Alternatively, Plaintiff also argues that he was denied full\r\nand equal access because he was deterred from returning to the Restaurant.\r\n(Mot., pp. 12-13.) Specifically, he states that, on February 13, 2020, he was\r\n“in the area where the Restaurant is located to shop nearby at Manhattan\r\nVillage” and wanted to eat at the Restaurant again but was deterred from doing\r\nso due to his “experience with multiple access issues.” (Id., Whitaker\r\nDecl., ¶ 10-12.) This statement about Plaintiff’s state of mind and intentions\r\nis likewise too vague to support this Motion for Summary Judgment. Further,\r\nPlaintiff’s declaration does not demonstrate he had actual knowledge of\r\nthe alleged ADA violations. Although Plaintiff claims to be “very familiar”\r\nwith the elements, he does not demonstrate that he actually measured the\r\nelements and confirmed a violation existed.

\r\n\r\n

\r\n\r\n

The Court finds Plaintiff has not carried his burden to\r\nshow no triable issue of material fact exists and thus is not entitled to\r\nsummary judgment.

\r\n\r\n

\r\n\r\n

For the same reasons discussed above, summary\r\nadjudication as to (1) Defendant’s violation of Plaintiff’s rights under\r\nSection 51, subdivision (f), and/or (2) Plaintiff’s entitlement to a statutory\r\naward of $4,000.00 under Civil Code section 55.56 is DENIED.

\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, Plaintiff\r\nBrian Whitaker’s Motion for Summary Judgment or, in the Alternative, Summary\r\nAdjudication, is DENIED.

\r\n\r\n

\r\n\r\n

Moving party is ordered to give\r\nnotice.

\r\n\r\n

\r\n\r\n

'

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.