Case Number: KC069662 Hearing Date: March 28, 2018 Dept: O

Cabrera v. Chipotle Mexican Grill Inc. (KC069662)

Defendant Chipotle Mexican Grill Inc.’s MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

Respondent: None (unopposed, as of 3/20/18, 1:25 p.m.; due 3/15/18)

TENTATIVE RULING

Defendant Chipotle Mexican Grill Inc.’s motion to dismiss plaintiffs’ first amended complaint is denied.

Defendant Chipotle Mexican Grill, Inc. (“defendant”) moves the court to dismiss this action on the basis of CCP §§ 425.55 and 391.3 and Government Code § 70616.5.

“The Legislature finds and declares all of the following: (1) Protection of the civil rights of persons with disabilities is of the utmost importance to this state, and private enforcement is the essential means of achieving that goal, as the law has been designed. (2) According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336). (3) Therefore, given these special and unique circumstances, the provisions of this section are warranted for this limited group of plaintiffs.” CCP § 425.55(a).

“For the purposes of this article, ‘high-frequency litigant’ means a person…who utilizes court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A ‘high-frequency litigant’ means one or more of 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.” CCP § 425.55(b)(1).

“In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.” Government Code § 70616.5(a). “The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.” Government Code § 70616.5(b). “Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.” Government Code § 70616.5(c).

Plaintiff alleges in her First Amended Complaint (“FAC”) that she is disabled and that on or about 9/13/17, while patronizing defendant’s business establishment, she encountered an architectural barrier which denied her equal access to use of a beverage lid dispenser. (FAC, ¶¶ 4, 6 and 10). Plaintiff has asserted causes of action against defendant for (1) Violation of Civil Code Section 51 and (2) Violation of Civil Code Sections 54 and 54.1. Plaintiff further concedes that “[t]his complaint is filed on behalf of a high frequency litigant. Said Plaintiff has filed 39 construction related accessibility claims during the 12 months prior to filing this complaint.” (Id. ¶ 20).

However, plaintiff is exempt from the filing fee required by Government Code § 70616.5, as she was granted a fee waiver by the Clerk of the Court in this case on 9/27/17.

Defendant also is not entitled to a dismissal on the basis of CCP § 391 et seq. “In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.”

As used in this title, the following terms have the following meanings:

(a) “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

(b) “Vexatious litigant” means a person who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence CCP § 391.(b)(1).

The terms “high-frequency litigant” and “vexatious litigant” are not synonymous. Here, defendant has not shown that plaintiff is a “vexatious litigant” as defined by CCP § 391(b)(1); as such, the court need not address defendant’s contention that there is no reasonable probability that plaintiff will prevail in the litigation.

Motion is Denied