Martinez v. California Pizza Kitchen, Inc., 112018 SUPAD, ACIAS 1800020

Docket Nº:ACIAS 1800020
Party Name:CHRISTOPHER MARTINEZ, Plaintiff and Appellant, v. CALIFORNIA PIZZA KITCHEN, INC., Defendant and Respondent.
Attorney:Law Offices of Morse Mehrban, A.P.C; Morse Mehrban for plaintiff and appellant. Baraban & Teske; James S. Link for defendant and respondent.
Judge Panel:CARLOS M. CABRERA, Presiding Judge of the Appellate Division, LYNN M. PONCIN, Judge of the Appellate Division, RODNEY A. CORTEZ, Judge of the Appellate Division
Case Date:November 20, 2018
Court:Superior Court of California
 
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CHRISTOPHER MARTINEZ, Plaintiff and Appellant,

v.

CALIFORNIA PIZZA KITCHEN, INC., Defendant and Respondent.

ACIAS 1800020

Superior Court of California, Appellate Division, San Bernardino

November 20, 2018

Certified for Publication 12/11/18

Appeal from judgment of dismissal following order sustaining demurrer to complaint, San Bernardino County Superior Court Trial Court: CIVDS1724404, San Bernardino District, Michael M. Dest, Judge. Affirmed.

Law Offices of Morse Mehrban, A.P.C; Morse Mehrban for plaintiff and appellant.

Baraban & Teske; James S. Link for defendant and respondent.

PER CURIAM OPINION

THE COURT.[*]

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and appellant Christopher Martinez (Martinez) appeals from a judgment of dismissal which was entered after the trial court sustained, without leave to amend, a demurrer filed by defendant and respondent California Pizza Kitchen, Inc. (CPK). In light of the procedural posture of the case, we assume the truth of the facts properly plead by Martinez, but not contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkley (2006) 38 Cal.4th 1, 5.) We likewise accept as true all facts that may be implied or inferred from the complaint's express allegations. (Satten v. Webb (2002) 99 Cal.App.4th 365, 375.) We also consider and take judicial notice of “any matter of which the court of original jurisdiction may properly take notice.” (Varcoe v. Lee (1919) 180 Cal. 338, 342.)

As relevant to our review, Martinez contends that he suffers from “partial hearing loss” and has difficulty “differentiating desirable sounds without an assistive listening device.” In September 2017, Martinez patronized the restaurant and bar operated by CPK. However, because of the disability Martinez was unable to enjoy the music that was playing over the speaker system; music which Martinez contends was part of the “services, facilities, privileges, advantages, and accommodations provided by [CPK]” for “the benefit, entertainment, use, and enjoyment of patrons.” Martinez further alleges that he was “excluded, denied services, segregated, and otherwise treated differently” because CPK “failed and refused to provide … an auxiliary aid or service” despite his express request. Based on these facts, Martinez asserted one cause of action for violation of the Unruh Civil Rights Act (the Act) and that claim was premised upon CPK's alleged violation of the Americans with Disabilities Act (the ADA). [1]

In demurring to the complaint, CPK argued that the federal authority underlying Martinez' claim only requires a place of public accommodation to provide auxiliary aids when necessary to ensure effective communication of information. Thus, according to CPK, Martinez' claim fails since it related to “background music” as opposed to communications between the parties.2 In ruling on the demurrer, the trial court took judicial notice of legislative committee reports as well as federal rules and regulations related to the ADA and its requirement that places of public accommodation provide auxiliary aids. Ultimately, the trial court agreed with CPK on the merits and sustained the demurrer without leave to amend since Martinez opted to proceed with the allegations as plead.3 Through the appeal, Martinez contends that the complaint sufficiently alleges a violation of the Act because the allegations fall within the ADA's definition of discrimination.

DISCUSSION

The Standard of Review

The function of a demurrer is to test the sufficiency of the pleading under attack as a matter of law. Guided by the principals we outlined above, we review de novo an appeal from a judgment dismissing an action after the sustaining of a demurrer without leave to amend. (First Aid Services of San Diego, Inc. v. California Employment Development Dept. (2005) 133 Cal.App.4th 1470, 1476.) On the other hand, we...

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