This case was last updated from Los Angeles County Superior Courts on 10/16/2020 at 01:03:36 (UTC).

DARNELL HINES VS AVIANO, LLC

Case Summary

On 01/23/2019 DARNELL HINES filed a Civil Right - Other Civil Right lawsuit against AVIANO, LLC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0685

  • Filing Date:

    01/23/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

HINES DARNELL

Defendant

AVIANO LLC

Attorney/Law Firm Details

Plaintiff Attorney

MEHRBAN MORSE

15720 Ventura Blvd. Suite 228

Encino, CA 91436

Defendant Attorney

CHANDLER PAUL

 

Court Documents

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

10/7/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

7/9/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Declaration (name extension) - Declaration of Reginald Carlton

4/9/2020: Declaration (name extension) - Declaration of Reginald Carlton

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

12/4/2019: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

10/2/2019: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

9/25/2019: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Declaration (name extension) - Declaration re Automomatic 30 Day Extension of Time to File Responsive Pleading

7/22/2019: Declaration (name extension) - Declaration re Automomatic 30 Day Extension of Time to File Responsive Pleading

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

6/17/2019: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Notice of Ruling - Notice of Ruling

6/17/2019: Notice of Ruling - Notice of Ruling

Amended Complaint - Amended Complaint First

6/18/2019: Amended Complaint - Amended Complaint First

Reply (name extension) - Reply to Plaintiff's Opposition to Defendant's Demurrer

6/11/2019: Reply (name extension) - Reply to Plaintiff's Opposition to Defendant's Demurrer

Declaration (name extension) - Declaration of Paul W. Chandler re Defendant's Good Faith Attempt to Meet and Confer

4/15/2019: Declaration (name extension) - Declaration of Paul W. Chandler re Defendant's Good Faith Attempt to Meet and Confer

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

5/16/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Summons - Summons on Complaint

1/23/2019: Summons - Summons on Complaint

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

1/23/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Civil Case Cover Sheet - Civil Case Cover Sheet

1/23/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

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

1/23/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

Complaint - Complaint

1/23/2019: Complaint - Complaint

12 More Documents Available

 

Docket Entries

  • 06/08/2021
  • Hearing06/08/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 10/07/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 10/07/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/26/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 10/07/2020

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  • 10/07/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 10/14/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 06/08/2021 08:30 AM

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  • 07/09/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 07/09/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 07/22/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 10/14/2020 08:30 AM

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  • 04/09/2020
  • DocketDeclaration of Reginald Carlton; Filed by: Darnell Hines (Plaintiff)

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  • 12/30/2019
  • DocketAnswer; Filed by: Aviano, LLC (Defendant)

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  • 12/12/2019
  • DocketNotice of Entry of Judgment or Order; Filed by: Darnell Hines (Plaintiff); As to: Aviano, LLC (Defendant)

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  • 12/04/2019
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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22 More Docket Entries
  • 01/23/2019
  • DocketComplaint; Filed by: Darnell Hines (Plaintiff); As to: Aviano, LLC (Defendant)

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  • 01/23/2019
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 01/23/2019
  • DocketCivil Case Cover Sheet; Filed by: Darnell Hines (Plaintiff); As to: Aviano, LLC (Defendant)

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  • 01/23/2019
  • DocketSummons on Complaint; Issued and Filed by: Darnell Hines (Plaintiff); As to: Aviano, LLC (Defendant)

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  • 01/23/2019
  • DocketRequest to Waive Court Fees; Filed by: Darnell Hines (Plaintiff)

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  • 01/23/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 01/23/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 01/23/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk

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  • 01/23/2019
  • DocketNon-Jury Trial scheduled for 07/22/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 01/23/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/26/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 19STLC00685    Hearing Date: December 04, 2019    Dept: 94

Hines v. Aviano, LLC

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.10, et seq., 435, 436)

TENTATIVE RULING:

Defendant Aviano, LLC’s Demurrer to the First Amended Complaint is OVERRULED.

ANALYSIS:

Plaintiff Darnell Hines (“Plaintiff”) commenced this action against Defendant Aviano, LLC (“Defendant”) on January 23, 2019 alleging a single cause of action for violation of the Unruh Civil Rights Act as embodied in Civil Code section 51. On May 16, 2019, Defendant filed a demurrer as to Plaintiff’s Complaint for failure to allege facts sufficient to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e). The Court sustained Defendant’s demurrer with leave to amend on June 17, 2019, finding that Plaintiff’s Complaint failed to allege required facts as to the factors of a construction-related accessibility claim under Code of Civil Procedure section 425.50. Specifically, the Court found that Plaintiff did not state whether the Complaint was filed by, or on behalf of, a high-frequency litigant.

Plaintiff filed the operative First Amended Complaint (“FAC”) on June 18, 2019, which was amended to add a statement declaring that the Complaint is not filed by a high-frequency litigant. Defendant filed the instant demurrer on August 21, 2019, and Plaintiff opposed on August 23, 2019. Defendant has not filed a reply.

Legal Standard

Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10 subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10 subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. “In ruling on a demurrer, a court may consider facts of which it has taken judicial notice.” (Code Civ. Proc., § 430.30, subd. (a).)

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).)

Discussion

The demurrer is accompanied by a meet and confer declaration. (See Demurrer, Chandler Decl., ¶4.) The Court notes that while the meet and confer statute requires the parties to meet and confer in person or by telephone, defense counsel’s effort consisted only of an email and a letter sent to Plaintiff’s counsel. (Ibid.) Regardless, the Court is satisfied with the meet and confer effort given the history of this case. The parties have gone through one round of the demurrer process already and are familiar with the issues in dispute regarding Plaintiff’s allegations. For this reason, the Court finds the meet and confer effort adequate.

Cause of Action for Violation of the Unruh Civil Rights Act (Civil Code section 51)

The instant Demurrer is brought pursuant to Code of Civil Procedure section 430.10, subdivision (e) for

failure to allege facts sufficient to state a cause of action. It is also brought pursuant to Code of

Civil Procedure sections 425.50 and 425.55, and Civil Code sections 55.54 and 55.3, subdivision

(b) for failure to comply with the requirements for high-frequency litigants. Based on the foregoing, the Court finds that Plaintiff has complied with the pleading requirements for the present action.

An action for a construction-related accessibility claim must allege:

  1. Whether the complaint is filed by, or on behalf of, a high-frequency litigant.

  2. 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.

  1. 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.

  1. 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)(4)(A).) For purposes of Code of Civil Procedure section 425.50, subject to certain exceptions, a “high-frequency litigant” is defined as the following:

  1. A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.

  2. An attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation

(Code Civ. Proc. § 425.55, subd. (b)(1)-(2).) A determination of whether an attorney is a high-frequency litigant “shall be made solely on the basis of the verified complaint and any other publicly available documents.” (Code Civ. Proc., § 425.50, subd. (f).)

Here, Plaintiff amended his original Complaint to include a statement alleging that the action is not filed by, or on behalf of, a high-frequency litigant. (Plaintiff’s FAC, ¶ 8.) Defendant asserts that this allegation is false, and that Plaintiff and/or his attorney Morse Mehrban qualify as high-frequency litigants because they have filed more than thirty Civil Rights Discrimination cases in the past 12 months prior to filing the initial complaint in the present action. (Def.’s Demurrer, p. 6.) To support this argument, Defendant attached records from the Los Angeles Superior Court website showing Civil Rights Discrimination cases either filed by Plaintiff while represented by Mr. Morse or by other plaintiffs where Mr. Morse is the attorney of record. (Chandler Decl. ¶ 3, Exh. A – C.)

In his Opposition, Plaintiff contends that Defendant has presented no evidence that as of the filing of the FAC, either Plaintiff or his attorney have met the definition of “high-frequency litigant.” (Plaintiff’s Opp., p.1-2.) Further, Plaintiff argues that it is insufficient for Defendant to show, via the court records, that Mr. Morse was the attorney of record in other lawsuits alleging a construction-related accessibility violation within a 12-month period immediately preceding the current action. (Id. at 2.)

The Court finds that the case filing documents from the Los Angeles Superior Court website included in Defendant’s Demurrer are subject to judicial notice under Code of Civil Procedure section 430.30. Upon review of the documents, the Court notes that the records, while voluminous, do not indicate whether the actions were based on construction-related accessibility claims. The majority of case documents attached designate the case type as “Civil Rights/Discrimination Limited Jurisdiction” without further detail as to what was alleged in the Complaint. Under Code of Civil Procedure section 425.55, the determinations of whether a plaintiff or attorney is a high-frequency litigant are based exclusively on complaints alleging construction-related accessibility violations. Based on the pleadings and judicially noticed facts as presented, Defendant has not sufficiently demonstrated that Plaintiff’s First Amended Complaint is defective on the ground that Plaintiff and/or his attorney is a high-frequency litigant.

Substance of Complaint

The Court finds that the substance of Plaintiff’s discrimination claim has been sufficiently alleged. Defendant argues that the First Amended Complaint does not allege specifically how the accessibility barriers at Defendant’s location caused Plaintiff’s injury and that the First Amended Complaint merely includes a “laundry list” of broad allegations. The Court agrees that such generalized allegations would be insufficient to allege an injury-in-fact. (See Chapman v. Pier 1 Imports (U.S.), Inc. (9th Cir. 2011) 631 F.3d 939, 954.) However, the First Amended Complaint here alleges that Plaintiff could not see his reflection in the bathroom mirror or extract a toilet seat cover from its dispenser because both were out of his range. (FAC, ¶ 5-6.)

Conclusion

Plaintiff bears the burden of showing that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) With the addition of the statement in the First Amended Complaint alleging that Plaintiff is not a high-frequency litigant, the Court finds that Plaintiff has met his burden.

Based on the foregoing, Defendant’s Demurrer to the First Amended Complaint is OVERRULED.

Moving party to give notice.