Case Number: 17STLC02626 Hearing Date: December 26, 2017 Dept: 77

Defendant Talia Oil, Inc.’s demurrer to the complaint is OVERRULED.

Plaintiff has alleged facts sufficient to support his causes of action stemming from alleged defects in accessibility.

Background

Plaintiff Daniel Monteon-Gonzalez (“Plaintiff”) filed this action based on violations of the Unruh Act. In June 2017, Plaintiff alleges that he was a customer at Defendant Shell-Alameda Fuel’s convenience store. Plaintiff alleges that Defendant Talia Oil, Inc. (“Talia”) is the landlord of the property. Plaintiff alleges that he is disabled and requires a wheelchair for mobility. Plaintiff alleges that he was unable to re-enter his vehicle as another car was parked too close and had left Plaintiff insufficient room to maneuver his wheelchair. Plaintiff alleges that Defendants do not have designated disabled parking spaces. Plaintiff then alleges a list of items, including signs, access aisles, and accessibility routes that Defendants’ property allegedly lacked. Plaintiff alleges that these defects are barriers to his access to the property. On September 27, 2017, Plaintiff filed his complaint, bringing causes of action for: (1) violation of Unruh Civil Rights Act § 51(b); (2); violation of Unruh Civil Rights Act § 51(f); and (3) violation of Civil Code § 54.

On November 21, 2017, Talia filed its demurrer to the complaint.

Legal Standard

CCP § 430.10(e) permits a party to demur when “the pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(f) permits a party to demur when “the pleading is uncertain.”

“A ‘demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.’ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.” See Mitchell v. California Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1007.

Discussion

Meet and Confer

Defendant Talia submits the meet and confer declaration of its counsel, Varand Gourjian, who states that he attempted to contact Plaintiff multiple times, but was unable to reach Plaintiff. (Gourjian Decl. ¶ 2). Defendant has satisfied its meet and confer obligations.

Because each cause of action relies upon the same alleged facts and because Talia’s demurrer to each cause of action is identical, the court addresses them together.

Civil Code § 51(b) provides that all individuals “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Civil Code § 51(f) states, “a violation of the right of any individual under the federal Americans with Disabilities Act of 1990…shall also constitute a violation of this section.” The Americans with Disabilities Act includes provisions regarding access to public places. Civil Code § 54 provides that individuals with disabilities have the same right to access public places as the general public.

Plaintiff’s complaint indicates that he was prevented from accessing his vehicle due to another car parking too closely while he was patronizing the store on Defendants’ property as a result of inadequate parking for the disable at Defendant’s property. The complaint then lists a series of additional violations, but Plaintiff alleges these as legal conclusions that are not factually supported.

While the list of alleged violations in paragraph 8 of the complaint are legal conclusions, Plaintiff’s allegation regarding the lack of designated disabled parking stalls and Plaintiff’s inability to re-enter his vehicle is a properly alleged fact that can support a cause of action against Talia. To the extent that Talia argues that this is uncertain, any uncertainty may be resolved during the discovery process.

Defendant Talia Oil, Inc.’s demurrer to the complaint is OVERRULED. Plaintiff has alleged facts sufficient to support his causes of action stemming from alleged defects in accessibility.

Defendant to give notice.