CHRISTOPHER MARTINEZ VS GELSON'S MARKETS

Tentative Rulings

Case Number: 20STLC03319    Hearing Date: August 24, 2020    Dept: 25

HEARING DATE: Mon., August 24, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Martinez v. Gelson’s Markets COMPL. FILED: 04-14-20

CASE NUMBER: 20STLC03319 DISC. C/O: 09-12-21

PROCEEDINGS: DEMURRER TO COMPLAINT

MOVING PARTY: Defendant Gelson’s Markets

RESP. PARTY: Plaintiff Christopher Martinez

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Defendant Gelson’s Markets’ 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 June 22, 2020 [ ] Late [ ] None

REPLY: Filed on August 17, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

Plaintiff Christopher Martinez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Gelson’s Markets (“Defendant”) on April 14, 2020.

On June 3, 2020, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an opposition on June 22, 2020, and Defendant filed a reply on August 17, 2020.

1. Request for Judicial Notice

Defendant’s request for judicial notice of Appendix C to Part 36 of 28 C.F.R. is GRANTED. (Evid. Code, § 452, subd. (b).)

Defendant’s request for judicial notice of an article titled “Effective Communication” published by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section and available at https://www.ada.gov/effective-comm.htm is GRANTED. (Evid. Code, § 452, subd. (c).)

Defendant’s request for judicial notice of Encino Market Co.’s Articles of Incorporation and Defendant’s Statement of Information filed with the Secretary of State are DENIED. (People v. Thacker (1985) 175 Cal.App.3d 594, 598-99 [finding that documents prepared by a private person on file with the Secretary of State and not previously part of the Court record cannot be judicially noticed].) In addition, it is unclear to the Court why the Articles of Incorporation for Encino Market Co., an entity not a party to this action, are relevant. Only relevant matters are judicially noticeable. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 (citing Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds).)

Lastly, the request for judicial notice of a print out from Defendant’s website is DENIED. Defendant argues this printout is not reasonably subject to dispute, and therefore judicially noticeable under Evidence Code section 452, subdivision (h), because Plaintiff relied on the website to support his position that the Demurrer should be overruled. (Dem., RJN, p. 2, ¶ 5.) However, facts contemplated by subdivision (h) generally include “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The print-out of Defendant’s webpage represents no such widely accepted matter. In addition, “[t]he contents of Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)

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 v. City of Santa Monica, 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.)

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. Discussion

A. Service of the Opposition

As an initial matter, the Court addresses Defendant’s argument regarding service of the Opposition. Defendant argues it never received a copy of Plaintiff’s Opposition, and even if it had, service was improper as it was served by mail, not electronically. (Reply, p. 1:17-28.) On this basis, Defendant requests that the Court exercise its discretion to strike the Opposition in its entirety. (Id.)

Defendant relies on Local Rule 3.4, which requires represented parties to file documents with the Court electronically using an approved electronic service provider. (Super Ct. L.A. County, Local Rules, rule 3.4, subd. (a).) However, this rule does not require electronic service between the parties. (See id.) Defendant also cites California Rules of Court, rule 2.251, which requires electronic service pursuant to a local court rule or order. (Cal. Rules of Court, rule 2.251, subd. (c).) Los Angeles Superior Court has no such local rule. In addition, because Defendant filed a Reply on the merits of Plaintiff’s Opposition, it has waived any challenges based on deficiencies in notice. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 [“It is well-settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion”].)

B. Merits

Defendant’s Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Hyun Decl., ¶¶ 2-5.) Defendant demurs to Plaintiff’s Complaint on the basis that it does not state sufficient facts to constitute a cause of action. (Notice of Dem., p. 2:2-7.)

Plaintiff alleges Defendant discriminated against him on the basis of disability and thereby violated the Americans with Disabilities Act and the Unruh Civil Rights Act. (Compl., ¶ 2-6.)

The Unruh Civil Rights Act states, in pertinent part, that all persons, no matter their disability, are “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 5 1, subds. (a), (b).) A violation under the federal Americans with Disabilities Act of 1990…shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).) The Americans with Disabilities Act provides that discrimination by public accommodations includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C.A. § 12182, subd. (b)(2)(A)(iii).) Similarly, 28 C.F.R. section 36.303, subdivisions (a) and (c)(1), require that public accommodations take necessary steps so that no individual is denied access to a public accommodation due to the absence of auxiliary aids and services, and require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” Public accommodations include concert halls or other places of exhibition or entertainment. (42 U.S.C.A. § 12181, subd. (7)(B).)

Here, Plaintiff alleges the following: that he suffers from partial hearing loss; that he has difficulty hearing without an assistive listening device; that Defendant operated a live entertainment venue at 2725 Hyperion Ave., Los Angeles, CA 90027 (the “Venue”); that Plaintiff patronized the Venue on or about March 26, 2019, and requested an assistive listening device but none was provided for him; that the Venue did not have any signage appraising Plaintiff of the availability of an assistive listening device; that as a result of being denied an assistive listening device, Plaintiff was unable to enjoy a live music performance; that live music performances are part of the “goods, services, facilities, privileges, advantages, and accommodations” provided for the “benefit, entertainment, use, and enjoyment of patrons;” and that Plaintiff was “excluded, denied services, segregated, and otherwise treated differently” due to the absence of auxiliary aids. (Compl., ¶¶ 2-5.)

Defendant argues that a discrimination claim must be based on a denial of services a public accommodation normally offers. (Dem., p. 6:17-20.) Relying on the Articles of Incorporation for Encino Market, Co., the Statement of Information describing it as a “retail grocery” business, and a print out of its webpage, Defendant argues that it is not in the live entertainment business, but rather in the grocery business. (Id. at p. 7:1-3.) However, as noted above, the Court denied judicial notice of the Articles of Incorporation, Defendant’s webpage, and Defendant’s Statement of Information. Even if the Court was permitted to take judicial notice of the Articles of Incorporation or Statement of Information, the Court would not be able to take judicial notice of any factual matters stated therein, i.e., that Defendant is in the retail grocery business. (See Poseidon Development, Inc. v. Woodland Lane Estates (2007) 152 Cal.App.4th 1106, 1117 [“[T]he fact that a court may take judicial notice of a recorded deed, or similar document, does not mean that it may take judicial notice of factual matters stated therein”].) Thus, the Court cannot make a finding as to the types of goods and services Defendant offers.

Defendant also argues that a discrimination claim based on the absence of auxiliary services “must allege that the auxiliary aids were necessary to ensure effective communication and the failure to provide those auxiliary aids resulted in a denial of service.” (Dem., p. 8:11-15.) It further argues that there must be a nexus between the goods and services normally offered by the business and the auxiliary aids in question. (Id.)

Here, Plaintiff alleges Defendant is a live entertainment venue. (See Compl., ¶ 3.) Because Defendant has not submitted any judicially noticeable matter that may permit the Court to conclude otherwise, the Court takes Plaintiff’s allegation as true. (Harris v. City of Santa Monica, supra, 56 Cal.4th p. 240.) An auxiliary device for the enjoyment of a live musical performance is directly related to the types of goods and services, i.e., live entertainment, Plaintiff alleges Defendant provides. Indeed, “one is denied full and equal enjoyment of goods, services, and the like when, due to a disability and the lack of auxiliary aids, there is an absence of effective communication relating to those good and services.” (Martinez v. California Pizza Kitchen, Inc. (2018) 30 Cal.App.5th Supp. 14, 21.) (Italics added.)

Thus, because Plaintiff alleges he has a disability, that Defendant’s facility is a place of public accommodation, and that he was denied full and equal treatment on a particular occasion, the Court finds he has properly stated a cause of action for violation of the Unruh Civil Rights Act. Accordingly, the Demurrer is OVERRULED.

1. Conclusion & Order

For the foregoing reasons, Defendant Gelson’s Markets’ Demurrer to Plaintiff’s Complaint is OVERRULED.

Moving party is ordered to give notice.