Filed 10/1/20 Harris v. Adams CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CYNTHIA A. HARRIS,
Plaintiff and Appellant,
v.
BRUCE ADAMS et al.,
Defendants and Respondents.
A157443
(Solano County
Super. Ct. No. FCS051548)
Plaintiff Cynthia A. Harris appeals a judgment entered in favor of defendants Bruce Adams, Sam Adams, and the Bottom of the Fifth Sports Bar and Grill (collectively the restaurant) on her complaint for disability discrimination in violation of the Unruh Civil Rights Act (Unruh Act, or the Act) (Civ. Code, § 51). She contends the court erred in sustaining the restaurant’s demurrer to her first amended complaint (hereafter complaint). We agree that plaintiff’s complaint alleges a cause of action for intentional discrimination under the Unruh Act but fails to allege a cause of action for discrimination based on the restaurant’s violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). Accordingly, we shall reverse the judgment and remand with the direction to overrule the demurrer to the first cause of action.
Factual and Procedural Background
Plaintiff suffers from irritable bowel syndrome (IBS), a condition that has been exacerbated by the loss of her gallbladder. The complaint alleges that her condition constitutes a physical disability under state and federal law: “Plaintiff’s IBS and the anatomical loss of her gallbladder affects a bodily function, her bowel, as well as her digestive system. She suffers serious symptoms from her IBS and gallbladder loss, which, unmitigated, include persistent abdominal pain, bloating, excess gas and burping, diarrhea, diarrhea at night, unexplained vomiting and difficulty digesting dairy products and fatty foods. Plaintiff’s condition substantially limits the achievement of the major life activities of eating and waste elimination. Unmitigated, plaintiff’s condition affects her ability to work and engage in intimacy, both major life activities. Experiencing the signs and symptoms of her condition has also led to a mood disorder⸺serious anxiety.”
Plaintiff’s complaint alleges that on September 11, 2018, she was refused service at the restaurant because of her “food needs.” The complaint explains that in the year preceding the refusal of service, she and her husband had frequented the restaurant several days a week. Because of her disability, plaintiff routinely asked the restaurant to either omit dairy from what she ordered or substitute certain items in its place. According to the complaint, the restaurant and its employees “were negligent (or uncaring)” about plaintiff’s orders because she was routinely served cheese, butter and cream, despite her explanation that she was “lactose intolerant.” On those occasions, plaintiff could not eat the food she was served and asked for it to be remade. On September 11, a restaurant employee informed plaintiff that she was “blackballed” from the restaurant because she “could not make her happy” and was “tired of throwing food away.” The employee also accused plaintiff of trying to get “free food.”
The restaurant’s general demurrer asserts the complaint fails to allege a cause of action under the Unruh Act because it does not allege that the restaurant discriminated against her because of a “medically diagnosed disability.” To the contrary, the restaurant argues, the alleged facts disclose that it had “legitimate business reasons to refuse plaintiff service.” Alternatively, the restaurant argues that even if plaintiff has pled sufficient facts to establish a physical disability which the restaurant intentionally refused to accommodate, “there is still no requirement that defendants tailor the food that they serve because of her lactose intolerance.”
The trial court sustained the demurrer, noting that the complaint fails to allege that plaintiff had received an “IBS diagnosis from a medical professional” or that she told the restaurant about her disability. The court added that “[e]ven if plaintiff had made such allegations here, plaintiff would also have to establish that defendants here adopted a policy applied, or intended to apply, not only to her, but to others who disclose an IBS diagnosis, and not to all potential patrons.” While the court indicated its intent to grant leave to amend, plaintiff requested that the demurrer be sustained without leave to amend because she did not believe she could amend her complaint to satisfy the court’s requirements. Thus, the court sustained the demurrer without leave to amend and entered judgment dismissing the action.
Plaintiff timely filed a notice of appeal.
Discussion
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Ordinarily, when a demurrer is sustained without leave to amend, we would consider “whether there is a reasonable possibility that the defect can be cured by amendment” and the burden of proving such reasonable possibility would fall “squarely on the plaintiff.” (Ibid.) Here, however, plaintiff expressly waived any right to amend. Accordingly, if the allegations in the complaint fail to state a viable cause of action, we must affirm the court’s ruling without consideration of whether amendment might cure the defect.
The Unruh Act was enacted to “create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167.) The substantive protections against discrimination established by the Act are set forth in section 51. Subdivision (b) of that provision states: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b).) In addition, subdivision (f) of section 51 provides, “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 [citation] shall also constitute a violation of this section.” Section 52, which provides remedies for violations of section 51, authorizes a damages award of no less than $4,000 and injunctive relief. (Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058.) Plaintiff’s complaint alleges causes of action under both subdivisions (b) and (f) of section 51.
1. Plaintiff’s complaint fails to allege a claim for discrimination in violation of section 51, subdivision (f).
2.
As noted above, subdivision (f) of section 51 provides, “A violation of the right of any individual under the [Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.)] shall also constitute a violation of this section.” The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C.A. § 12182, subd. (a).) Specifically, section 12182, subdivision (b)(1)(A)(i) provides, “It shall be discriminatory to subject an individual . . . on the basis of a disability or disabilities of such individual . . . to a denial of the opportunity of the individual . . . to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” (Italics added.) In addition, under section 12182, subdivision (b)(2)(A)(ii) discrimination can take the form of “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
Plaintiff’s complaint alleges that that she “was denied public accommodation because of her disability in that she was refused service and blacklisted from the establishment.” On appeal, she argues that the restaurant unreasonably denied her “requested modification” of the restaurant’s menu.
Initially, we reject the trial court’s conclusion that plaintiff was required to allege that she had received an “IBS diagnosis from a medical professional.” On appeal, the restaurant argues that “[w]ithout this specific allegation regarding a medical diagnosis, the term physical disability is wholly unverifiable and can be alleged by anybody at the pleading stage. Adding these allegations, assuming they are true, would have been relatively straightforward.” A “disability” under the ADA is “a physical or mental impairment that substantially limits one or more of the major life activities of such individuals . . . or being regarded as having such an impairment.” (42 U.S.C. § 12102(1).) While plaintiff must allege and bears the burden of proving she has IBS and that her IBS substantially limits a major life activity, nothing in the ADA requires her to allege that her disability has been diagnosed by a medical professional. The allegations of the complaint sufficiently allege a qualified disability.
Nonetheless, as the trial court correctly observed, the complaint does fail to allege that the restaurant knew or should have known that plaintiff had a qualified disability at the time it refused to serve her. (See Shaywitz v. American Bd. of Psychiatry & Neurology (S.D.N.Y. 2012) 848 F.Supp.2d 460, 467 [“Reason dictates that in order for a defendant to be liable for discrimination ‘on the basis of disability,’ [citation], the defendant must have had adequate knowledge of the plaintiff’s disability.”]; Costabile v. New York City Health & Hosps. Corp. (2d Cir. 2020) 951 F.3d 77, 81 [“To trigger the duty to engage the interactive accommodations process, the employer must have known, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act, as opposed to a mere impairment.”].)
Plaintiff’s complaint asserts in a conclusory fashion that by September 2018, the restaurant “certainly regarded plaintiff as having a physical impairment/disability.” The only facts alleged to establish the restaurant’s knowledge of her alleged disability, IBS, are that she routinely “asked that dairy be omitted from her menu orders” and she told the staff that “she was lactose intolerant.” Plaintiff argues that she was not required to reveal her private medical condition to the restaurant and that it was sufficient to “to simply inform the restaurant . . . of her dairy intolerance.”
Given the dearth of case law on what is required to plead knowledge of a disability by a restaurant, we look to authority addressing knowledge in the workplace. “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his [or her] condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of those facts.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384 [“An employee whose disability is not apparent is therefore obliged to tender a specific request for a necessary accommodation.”].) “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [statute].’ ” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236–237, citing Morisky v. Broward County (11th Cir. 1996) 80 F.3d 445, 448 [plaintiff’s illiteracy and history of special education classes insufficient to put employer on notice of developmental disability]; Miller v. National Casualty Co. (8th Cir. 1995) 61 F.3d 627, 629–630 [absenteeism, claims of stress, and a relative’s statement employee was “mentally falling apart” insufficient to put employer on notice of manic-depression].)
“Millions of Americans suffer from lactose intolerance, a genetic condition that prevents them from processing the principal sugar in milk. [Citation.] For lactose-intolerant individuals, the consumption of milk and other dairy products can result in unpleasant stomach symptoms.” (Mills v. Giant of Maryland, LLC (D.C. Cir. 2007) 508 F.3d 11, 12, citing Natl. Inst. of Diabetes & Digestive & Kidney Diseases, U.S. Dept. of Health & Human Services, Lactose Intolerance 3 (2006).) The severity of the symptoms varies greatly. “Different people can tolerate different amounts of lactose before having symptoms.” (Natl. Inst. of Diabetes & Digestive & Kidney Diseases, U.S. Dept. of Health & Human Services, Lactose Intolerance [
Accordingly, the trial court properly sustained the demurrer to the second cause of action for violation of the Unruh Act based on an alleged violation of the ADA.
3. Plaintiff’s complaint alleges a claim for discrimination in violation of section 51, subdivision (b).
4.
A violation of section 51, subdivision (b) requires proof of “intentional discrimination in public accommodations in violation of the terms of the Act.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175.) Accordingly, plaintiff must specifically plead facts establishing that the restaurant knowingly and intentionally denied her “full and equal services” because of her physical condition. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [“where, as here, statutory remedies are invoked, the facts ‘must be pleaded with particularity’ ”]; Cheng et al., Cal. Fair Housing and Public Accommodations (The Rutter Group 2019) § 15:1 [a cause of action for violation of the Unruh Act under section 51, subdivision (b) requires proof that “[t]he substantial motivating reason for defendant’s conduct was defendant’s perception of plaintiff’s Unruh Act protected class (sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status) or a similar arbitrary characteristic . . . .”].)
As discussed above, plaintiff’s complaint fails to allege that the restaurant had knowledge of her IBS disability. It does allege, however, that the restaurant was aware of her lactose intolerance and denied her service because of that intolerance. Unlike the ADA, which is focused solely on disability discrimination, the Unruh Act does not limit its protections to the enumerated classifications. Instead, “courts have deemed those categories ‘ “illustrative rather than restrictive” ’ [citations] and have construed the Act to apply to several unexpressed classifications—namely, unconventional dress or physical appearance, families with children, persons under age 18, and homosexuality.” (King v. Hofer (1996) 42 Cal.App.4th 678, 681–682.) Accordingly, the sufficiency of plaintiff’s cause of action for intentional discrimination under subdivision (b) turns on whether refusing to serve one because that person is lactose intolerant violates the Act. (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38–39 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.’ ”].)
Whether a classification is protected under the Act requires consideration of three factors: (1) whether the classification is based on a personal characteristic similar to those listed in the statute; (2) whether legitimate business interests justify the limitation on consumer access; and (3) the consequences of expanding class recognition to include that classification. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 841 (Koebke), citing Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at pp. 1148, 1158–1159.) In Harris at page 1169, the court held that a landlord’s minimum income policy did not violate the Unruh Act because the policy did “not make distinctions among persons based on the classifications listed in the Act (e.g., race, sex, religion, etc.) or similar personal traits, beliefs, or characteristics that bear no relationship to the responsibilities of consumers of public accommodations. It is a financial criterion of customer selection that applies uniformly and neutrally to all persons regardless of personal characteristics. Moreover, on its face, it makes permissible distinctions among persons that are justified by the landlord’s legitimate business interest in assessing the capability of prospective tenants to pay rent on a continuing basis.”
In Koebke, supra, 36 Cal.4th at page 842, the court applied Harris’s three-part analysis, holding that a country club could not exclude from membership a lesbian couple registered under the California Domestic Partner Rights and Responsibilities Act of 2003 (Domestic Partner Act) (Fam. Code, § 297 et seq.). The court observed that the personal characteristics enumerated in the Act “represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition” and concluded that “marital status is more like the existing categories to which the Act applies than it is to economic status.” (Koebke, supra, at pp. 842–843.) The court rejected the country club’s stated reasons for excluding the plaintiffs from membership—to avoid “overuse of its facilities” and to “creat[e] a family-friendly environment,” finding they were not legitimate business interests in light of the purpose of the Domestic Partner Act. (Id. at p. 847.) Finally, the court concluded that allowing domestic partner claims under the Unruh Civil Rights Act would not have adverse consequences because only registered domestic partners, not all unmarried couples, could pursue such a claim. (Id. at p. 848.)
In Harris, the court rejected plaintiff’s argument that concepts of “arbitrary discrimination” and “reasonable” regulations involved fact-bound determinations not cognizable on demurrer. The court observed that “Unruh Act issues have often been decided as questions of law on demurrer or summary judgment when the policy or practice of a business establishment is valid on its face because it bears a reasonable relation to commercial objectives appropriate to an enterprise serving the public.” (Harris, supra, 52 Cal.3d at p. 1165.) Ultimately the court concluded that “the minimum income policy” at issue in that case “deserve[d] ‘legal issue’ treatment.” (Ibid.) In contrast, in Koebke, the court determined as a matter of law that the act protected registered domestic partners, but held that factual disputes precluded resolution of plaintiffs’ claim that the country club’s policy violated the Unruh Act prior to enactment of the Domestic Partnership Act in 2005. (Koebke, supra, 36 Cal.4th at pp. 854–855.)
On the record before us, we cannot say that refusing service to a customer because of her lactose intolerance does not violate the Unruh Act as a matter of law. Lactose intolerance is clearly a personal characteristic similar to a physical disability or medical condition. (Harris, supra, 52 Cal.3d at p. 1160 [“The categories [mentioned in the Act] involve personal as opposed to economic characteristics—a person’s geographical origin, physical attributes, and personal beliefs.”].) We question whether there can be a legitimate business justification for refusing to serve a customer who is lactose intolerant. (Harris, supra, at p. 1152 [“businesses subject to the Unruh Act [retain] the right to ‘establish reasonable regulations that are rationally related to the services performed and facilities provided’ ”]; Hessians Motorcycle Club v. J.C. Flanagans (2001) 86 Cal.App.4th 833, 838 [bar policy prohibiting admission of people wearing patch signifying allegiance to a particular motorcycle club served a legitimate business interest.].) Finally, nothing in the record suggests that requiring restaurants to serve a patron with lactose intolerance would impose an undue burden. As the complaint alleges, the restaurant regularly attempted to omit dairy or provide substitutions for plaintiff and other patrons. Accordingly, on the record before us, plaintiff has alleged a cause of action for intentional discrimination in violation of section 51, subdivision (b) of the Unruh Act.
This cause of action is not grounded on a claim that the restaurant was obligated to change its menu to accommodate plaintiff’s dietary needs. The allegation is that the restaurant refused to serve her at all because of her lactose intolerance. The restaurant asserts that the allegations of the complaint disclose a “legitimate business reason” to exclude plaintiff from the restaurant: “she was a very difficult customer and [the restaurant was] not capable of meeting her needs.” The restaurant continues, “There comes a point when a restaurant has to admit that they cannot meet a customer’s expectations and it no longer makes sense for them to try. This is what happened here when [the restaurant’s] employee blamed ‘[p]laintiff for throwing away food.’ Perhaps the employee could have been more sensitive or friendly, but barring a customer because she constantly sends back orders is not a violation of the Unruh Act.” But whether plaintiff was excluded because she is lactose intolerant or because of the manner in which she conducted herself is a factual question that cannot be resolved on demurrer. The complaint alleges that she was refused service because of her “food needs.” That is sufficient for purposes of demurrer.
Contrary to the restaurant’s argument, plaintiff was not required to allege that the restaurant has “a policy of excluding those with IBS and/or a lactose intolerance.” “[A]n individual plaintiff has standing under the Act if he or she has been the victim of the defendant’s discriminatory act.” (Angelucci v. Century Supper Club, supra, 41 Cal.4th at p. 175.) “The act protects all persons from arbitrary discrimination . . . .” (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795, italics added.) The statutory right afforded “all persons” by section 51 is of an individual nature. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 738.) Section 51 was derived “from the common law doctrine which imposed upon certain enterprises affected with a public interest ‘ “the duty to serve all customers on reasonable terms without discrimination.” ’ . . . [Citation.] Under this common law principle, each member of the public, as an individual, possessed the right to obtain services of such enterprises. [Citations.] [¶] The rights afforded by the Unruh Act similarly are enjoyed by all persons, as individuals.” (Ibid.)
The restaurant’s reliance on Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 96 is misplaced. In that case, the court held that allegations that defendant discriminated against the plaintiff because defendant believed plaintiff was a speculator who had previously tried to profit at his expense did not state a cause of action for discrimination under the Unruh Act. The court explained that the exclusion occurred not as a result of “the singling out of an undefined group . . . or making generalizations about a defined group” but was “personal, that is, toward a particular individual based upon that individual’s conduct.” (Id. at p. 95.) The court explained that the Unruh Act “seeks to remedy arbitrary discrimination. It does not seek to remedy traditional wrongs arising out of tort or breach of contract, nor does it seek to remedy discrimination based on purely personal grounds.” (Id. at p. 96.) To the extent that the restaurant is arguing that it was entitled to refuse to serve plaintiff because of her behavior, not simply because of her lactose intolerance, the argument rests on factual issues contradicting the allegations of the complaint which must be accepted as true in ruling on the demurrer. While Frantz v. Blackwell provides a defense if the fact-finder accepts the restaurant’s view of the facts, it provides no basis for rejecting the sufficiency of the pleading.
Finally, as noted above, the restaurant’s argument that there is no legal obligation for it to modify the food that it serves misconstrues the complaint. The complaint alleges that the restaurant did not merely refuse to modify its menu for her, but excluded her from the premises. Moreover, whether “[a] restaurant could adopt a policy of not making any modifications to any of the dishes listed on its menu” is a different question from whether a restaurant may adopt a policy of refusing to modify its dishes only for people with lactose intolerance, as plaintiff suggests.
Whether plaintiff can prove that the restaurant refused to serve her simply because of her lactose intolerance must await resolution by way of summary judgment or trial. We hold only that the court erred in sustaining the restaurant’s demurrer to the cause of action for intentional discrimination in violation of section 51, subdivision (b).
Disposition
The judgment is reversed and the matter remanded with the direction to overrule the demurrer to the first cause of action. The parties shall bear their respective costs on appeal.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.