Dennis Perry v. City of Morgan Hill et al

Failure to State a Cause of Action

“ ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial.’ [Citation.] ‘Conversely, a general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 291-292 (Morris).)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ [citation] and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.] ‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not

evidentiary facts or conclusions of law.’ [Citation.]” (Morris, supra, 78 Cal.App.5th at p. 292.)

First Cause of Action: Violation of the California Unruh Civil Rights Act (Civ. Code, §§ 51-52)

“To state a claim under the Unruh Civil Rights Act, a plaintiff must allege the defendant is a business establishment that intentionally discriminates against and/or denies plaintiff full and equal treatment of a service, advantage, or accommodation based on plaintiff’s protected status.” (Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 922.)

“Unless an Unruh Civil Rights Act claim is based on an ADA violation, the act requires a claimant to prove ‘ “intentional discrimination.” ’ [Citation.] A claimant may not ‘rel[y] on the effects of facially neutral policy on a particular group ... to infer solely from such effects a discriminatory intent.’ [Citations.] Thus, absent an ADA violation, the Unruh Civil Rights Act requires allegations supporting ‘ “willful, affirmative misconduct” ’ [citation] with the specific intent ‘to accomplish discrimination on the basis of [a protected trait].’ [Citation.]” (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036.)

Here, as the demurrer points out, the SAC does not allege any ADA violations. Absent an ADA violation, defendant Mohi contends Plaintiff does not allege facts of intentional discrimination to support the Unruh Civil Rights Act. This contention however is unavailing as Plaintiff alleges Mohi and other defendants intentionally blocked handicapped parking spaces at their events, permitting non-disabled vendors and charging them to use the handicapped parking to make a profit. (SAC at ¶ 2; see also ¶¶ 21, 27.) Such allegations are incorporated into the first cause of action. (Id. at ¶ 29.) Plaintiff further alleges that Mohi and other defendants denied his privilege to use the handicapped space because of his disability. (Id. at ¶ 32.) These allegations are sufficient to state a cause of action under the Unruh Civil Rights Act and overcome a pleading challenge on demurrer.

Defendant Mohi also asserts that the City owned the streets and parking lots and thus Mohi had no authority to designate or modify parking spaces. But, this assertion goes beyond the scope of an Unruh Civil Rights Act claim which requires only a business establishment to intentionally discriminate or deny full and equal treatment to Plaintiff based on his protected status. The moving papers concede that Mohi is a business establishment and, for reasons explained above, Plaintiff alleges facts to support the remaining elements of an Unruh Civil Rights Act cause of action.

Therefore, the demurrer to the first cause of action on the ground that it fails to state a valid claim is OVERRULED.

Third Cause of Action: Violation of the Disabled Persons Act (Civ. Code, §§ 54-54.3)

Whereas the Unruh Civil Rights Act bars discrimination against several classes of individuals, the Disabled Persons Act (“DPA”) more narrowly protects those who suffer from disabilities. (Turner v. Association of America Medical Colleges (2008) 167 Cal.App.4th 1401, 1411 (Turner).)

“Under the DPA, ‘Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places.’ [Citation.]” (Turner, supra, 167 Cal.App.4th at p. 1411.)

“The DPA is ‘intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public.’ [Citation.] Its focus is upon physical access to public places, though the statute may also be construed as requiring equal physical access to a nontangible location such as an Internet site. [Citations.] Although the DPA now protects persons with mental disabilities, the published cases have involved challenges of physically disabled individuals denied access to some public site or service due to their disability. [Citations.]” (Turner, supra, 167 Cal.App.4th at p. 1412; see Hankins v.

El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 515 [patron on crutches denied permission to use the only bathroom on first floor, which was reserved for employees]; see also Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1186-1187 [quadriplegic could not access bank’s automatic teller machine from wheelchair due to the steps in front of it].)

Defendant Mohi argues the third cause of action fails because: (1) Plaintiff does not allege facts showing Mohi owned or controlled the parking facilities, or had the authority to modify or supplement parking arrangements on City-owned property; (2) Mohi events were ticketed and Plaintiff does not allege he attempted to purchase a ticket or gain entry to the event itself; and (3) Plaintiff does not allege he requested a modification form Mohi or that Mohi affirmatively denied such a request.

The court is not persuaded by these arguments. As stated above, the focus of the DPA claim is whether Plaintiff, a disabled person, was denied physical access to places open to the public. The crux of the SAC is that Plaintiff was denied the opportunity to park in handicapped parking by Mohi and other defendants at the Farmers Market, a public place, because of his disability. Stated another way, Plaintiff was denied physical access to the market because Mohi and other defendants intentionally blocked handicapped parking spaces at these public events. Such allegations are sufficient to state a cause of action.

Accordingly, the demurrer to the third cause of action on the ground that it fails to state a valid claim is OVERRULED.

Fourth Cause of Action: Negligence

To state a cause of action for negligence, a plaintiff must plead that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s injuries. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145.)

“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)

“[A] demurrer to a negligence claim will properly lie only where the allegations of the complaint fail to disclose the existence of any legal duty owed by the defendant to the plaintiff.” (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316.)

Here, Plaintiff fails to allege sufficient facts establishing a legal duty to support negligence. Plaintiff alleges a duty exists in part based on the first and third causes of action. (SAC at ¶ 41.) But, duty is not an element of those causes of actions and there is no legal authority cited suggesting that such claims may support a duty for negligence. Beyond that, the SAC is devoid of facts showing a duty of care to support negligence. (See Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [“Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.”].) Nor does Plaintiff allege facts supporting the elements of breach of duty and causation and thus the demurrer is sustainable on this ground.

Consequently, the demurrer to fourth cause of action is SUSTAINED WITH 15 DAYS LEAVE TO AMEND for failure to state a valid claim. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)

Uncertainty

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant Mohi contends the SAC is uncertain as Plaintiff fails to specify: (1) which defendant controlled the parking facilities; (2) which defendant made decisions about vendor placement; (3) which defendant had authority to provide accessible accommodations; and (4) which defendant bears responsibility for the specific barriers alleged at the Mohi events. But, Mohi can clarify the specifics requested here by utilizing instruments of civil discovery. (See Davies v. Super. Ct. (1984) 36 Cal.3d 291, 299 [purpose of civil discovery is to take game element out of trial preparation and assist parties in obtaining facts and evidence necessary for expeditious resolution of their dispute].) Moreover, Mohi’s arguments on general demurrer suggest that it has fair notice of the claims brought in this action.

Therefore, the demurrer to the SAC on the ground of uncertainty is OVERRULED.

Disposition

The demurrer to the first and third causes of action on the ground that they fail to state a valid claim is OVERRULED.

The demurrer to the fourth cause of action is SUSTAINED WITH 15 DAYS LEAVE TO AMEND for failure to state a valid claim.

The demurrer to the SAC on the ground of uncertainty is OVERRULED.

The court will prepare the Order.

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