GERALD CROSBY VS INNOVATE PASADENA, ET AL.

Tentative Rulings

Case Number: 18STLC14226    Hearing Date: January 14, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendants’ Demurrer on the ground that Plaintiff has alleged facts to support a cause of action is SUSTAINED with 20 days’ leave to amend.

ANALYSIS:

1. Background

On November 26, 2018, Plaintiff Gerald Crosby (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants Innovate Pasadena (“Innovate”) and DB Coworking Holdings Corp. (“DB Coworking”) (collectively, “Defendants”). On January 10, 2019, Plaintiff filed a First Amended Complaint (“FAC”). On April 19, 2019, Defendant DB Coworking filed a cross-complaint against Innovate and AI LA Community, Inc. (“AI LA”). On April 29, 2019, Plaintiff substituted a Doe defendant for AI LA. On August 14, 2019, Plaintiff substituted a Doe defendant for Todd Terrazas (“Terrazas”).

On October 8, 2019, default was entered against Terrazas. (10/8/19 Request for Entry of Default.) On November 11, 2019, Plaintiff and Terrazas signed a stipulation to set aside entry of default and allow Terrazas to respond to the FAC. (11/7/19 Joint Stipulation.)

On November 19, Terrazas filed the instant Demurrer to First Amended Complaint (the “Demurrer”) and a Request for Judicial Notice in Support of Demurrer to First Amended Complaint (the “Judicial Notice Request”). On December 9, 2019, Plaintiff filed an Opposition. On January 7, 2020, Terrazas filed a Reply brief.

1. Judicial Notice

Terrazas requests that judicial notice be taken of AI LA’s Articles of Incorporation.

Judicial notice may be taken of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (Evid. Code, § 452, subd. (c).) Courts may take judicial notice of articles of incorporation under Evidence Code, sections 452, subdivision (c) and 459. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1480.)

Thus, Terrazas’ request for judicial notice is GRANTED.

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.)

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

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Newman Decl., ¶ 2.)

1. Failure to State Sufficient Facts to Constitute a Cause of Action

Terrazas argues that Plaintiff improperly added him to the action because he is not liable under Title III of the ADA and thus has no liability under the Unruh Civil Rights Act, and because Plaintiff does not allege any facts to impose alter ego liability against Terrazas. (Mot., p. 2.)

The Unruh Civil Rights Act states that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their…disability…are entitled to the full and equal accommodations advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Code Civ. Proc., § 51(b).) A violation of any individual right under the federal Americans with Disabilities Act is also a violation under this section.” (Civ. Code § 51, subd. (f).)

California courts have held that individuals cannot be a defendant to an ADA action. (Gallo v. Board of Regents of University of California (S.D. Cal. 1995) 916 F.Supp. 1005, 1009.) Other federal courts have similarly found the ADA does not impose individual liability. In U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd. (7^th Cir. 1995) 55 F.3d 1276, 1281.), the court concluded that Congress never intended to impose individual liability because at the time it was enacted, “employer,” as defined in the ADA, “Congress granted only remedies that an employing entity, not an individuals, could provide.”

However, some courts have imposed liability on an individual owner of a corporation liable where he was the sole owner, director, and president of the corporation and where he was charged directly the alleged violation. (United States v. Morvant, 843 F.Supp. 1092 (E.D. La. 1994).) In contrast, Courts have found that when executive officers of a corporation are subject to the control of the corporation’s directors, that executive officer cannot be found to have the sole control over the ability to operate the corporation or the ability to act to remedy the alleged violation. (Civil Rights Educ. And Enforcement Center v. Sage Hospitality Resources, Inc., 222 F.Supp. 3d 934 (D. Colo. 2016).)

Here, Plaintiff added Terrazas as a Defendant, who is the President of AI LA. (Mot., p. 5.) AI is a California Corporation that has a board of directors. (Jud. Notice, Exh. 1.)

Plaintiff argues that there is “no inconsistency between [Terrazas’ alleged capacity as owner, operator, or lessee of the public accommodation and his judicially-noticeable capacity as president, chief executive officer, and general manager or [AI LA].” (Oppo., p. 3.) However, individual liability cannot be imposed on Terrazas merely because he is an executive officer of a corporate defendant. Individual liability requires that the individual be the one and the same with the corporation, that the individual commit the alleged act of discrimination, that the individual have sole control over the corporation, or that the individual be able to act to remedy the alleged violation. (See United States v. Morvant, 843 F.Supp. 1092 (E.D. La. 1994)); (Civil Rights Educ. And Enforcement Center v. Sage Hospitality Resources, Inc., 222 F.Supp. 3d 934 (D. Colo. 2016).) The Court finds that, as alleged, Plaintiff’s FAC is insufficient to constitute a cause of action against Defendant Terrazas.

1. Conclusion & Order

Accordingly, Defendant Todd Terrazas’ Demurrer SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Case Number: 18STLC14226    Hearing Date: November 18, 2019    Dept: 94

Crosby v. Innovate Pasadena, et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES

AND REQUEST FOR SANCTIONS

(CCP § 2030.290)

TENTATIVE RULING:

Plaintiff Gerald Crosby’s Motion Compelling Defendant DB Coworking Holdings Corp. To Respond To Special Interrogatories, Set One, is PLACED OFF CALENDAR AS MOOT. Plaintiff’s request for sanctions is GRANTED JOINTLY AND SEVERALLY AGAINST DEFENDANT DB COWORKING HOLDINGS CORP. AND ITS COUNSEL OF RECORD IN THE AMOUNT OF $536.65. SANCTIONS TO BE PAID WITHIN 30 DAYS OF SERVICE OF NOTICE OF THIS ORDER.

ANALYSIS:

Only August 1, 2019, Plaintiff Gerald Crosby (“Plaintiff”) filed the instant Motion To Compel Responses To Special Interrogatories by Defendant DB Coworking Holdings Corp. (“Defendant DB Coworking”). Defendant DB Coworking filed its opposition on September 26, 2019.

Defendant DB Coworking having submitted evidence that it served verified responses, without objections, to the Special Interrogatories, the Motion to Compel Responses is placed off calendar as moot. (Opp., Osher Decl., ¶6 and Exh. 2.) However, Defendant DB Coworking’s failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030, and have been properly noticed. However, the amount sought is excessive given the simplicity of this motion. The request for sanctions is granted jointly and severally against Defendant DB Working and its counsel of record in the amount of $536.65 based on one hour of attorney time billed at $475.00 and the $61.65 filing fee. (Motion, Mehrban Decl., ¶¶6-7.)

Plaintiff Gerald Crosby’s Motion Compelling Defendant DB Coworking Holdings Corp. To Respond To Special Interrogatories, Set One, is PLACED OFF CALENDAR AS MOOT. Plaintiff’s request for sanctions is GRANTED JOINTLY AND SEVERALLY AGAINST DEFENDANT DB COWORKING HOLDINGS CORP. AND ITS COUNSEL OF RECORD IN THE AMOUNT OF $536.65. SANCTIONS TO BE PAID WITHIN 30 DAYS OF SERVICE OF NOTICE OF THIS ORDER.

Moving party to give notice.