I. INTRODUCTION
Plaintiff Oscar Ruiz is a disabled person who uses a guide dog. He alleged that defendants Edward Lopez and Musclewood Investment Properties, LLC (Musclewood)
II. BACKGROUND
A. Procedural History Prior to First Amended Complaint
On October 14, 2015, plaintiff filed a complaint against defendants for violation of the DPA, the Bane Act, and common law and per se negligence.
B. First Amended Complaint
On June 3, 2016, plaintiff filed his first amended complaint, asserting causes of action for violation of the DPA and common law and per se negligence only. According to the factual allegations in the first amended complaint, which we accept as true ( Evans v. City of Berkeley (2006)
To maintain his independence, plaintiff had been trained to use a route that passed in front of defendants' business, when he travelled to the market or
Plaintiff alleged a violation of the DPA, citing sections 54, 54.1, and 54.3. Plaintiff sought actual damages, attorney fees, injunctive relief, and treble damages.
C. Partial Demurrer, Motion to Strike, and Dismissal
On June 21, 2016, defendants demurred to the DPA cause of action. Defendants asserted that plaintiff had failed to allege unequal access. Defendants cited to plaintiff's original complaint, in which plaintiff alleged that defendants' guard dog attacked disabled as well as other pedestrians. Based on these prior pleadings,
Plaintiff responded that he was not pursuing a claim based on section 54.1, but instead alleged violations of sections 54 and 54.3. Alternatively, and even assuming it was necessary to allege a denial of equal access, plaintiff argued his allegations were sufficient because blind people are less able than others to defend themselves from dog attacks. Plaintiff also argued that he had sufficiently alleged that defendants' policies, of allowing their guard dog to roam unleashed and opening the property gate without controlling their guard dog, interfered with plaintiff's rights. Finally, plaintiff asserted that a violation under the DPA does not require any discriminatory intent by defendants.
On September 13, 2016, the trial court conducted a hearing on the demurrer and motion to strike. The court, citing plaintiff's original complaint, found plaintiff had failed to allege that he was denied equal access because of his disability. The trial court thus sustained the partial demurrer to the DPA cause of action without leave to amend. The trial court also granted the motion to strike in its entirety.
On December 22, 2016, plaintiff moved to dismiss the action with prejudice. The dismissal was entered the same day. Plaintiff appeals from the order sustaining the partial demurrer.
III. DISCUSSION
A. Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. ( Zelig v. County of Los Angeles (2002)
B. Rules of Statutory Construction
We review questions of law and statutory interpretation de novo. ( People v. Kurtenbach (2012)
C. Plaintiff Stated a Valid Claim for Relief under Section 54.3
Section 54.3, subdivision (a) describes a cause of action against: "[a]ny person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in [s]ections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under [s]ections 54, 54.1 and 54.2[.]" Plaintiff sufficiently alleged a cause of action under section 54.3.
1. Disability
" 'Disability' means any mental or physical disability as defined in [s]ection 12926 of the Government Code." (§ 54, subd. (b)(1).) Plaintiff alleged that he was legally blind, thus satisfying this element. ( Gov. Code, § 12926, subd. (m)(1).)
2. Denial or interference
Section 54.3 defines " '[i]nterfere' " to include "preventing or causing the prevention of a guide dog ... from carrying out its functions in assisting a disabled person." The complaint described a guide dog's functions: "Guide dogs are given to blind persons by non-profit organizations that specifically breed and train dogs to work as guide dogs, and are certified by the state and licensed to pair guide dogs with disabled persons. ... These guide dogs are trained to be under the tight control of their handler/blind person, and ignore distractions, including any other dogs, children, and provide minimal protection by alerting a blind person[ ] of perceived danger. Guide dogs are specifically trained not to react aggressively in any situation, as this would disqualify the dog from being able to stay with a blind person if the guide
3. Enjoyment of public facility
The plain meaning of "[e]njoyment," is "possession and use." (Black's Law Dict. (10th ed. 2014) p. 647, col. 1.) Although section 54 does not specifically define "public facilities," it lists a number of locations to which individuals have the right to full and free use, and that list includes sidewalks. ( § 54, subd. (a).) Here, plaintiff alleged that he and his dog had been attacked six times by defendants' dog, while walking on the sidewalk. He further alleged that as a result, he no longer walked on that portion of the sidewalk. Plaintiff sufficiently alleged a deprivation of his enjoyment of the sidewalk.
4. Intent
We need not decide for purposes of resolving plaintiff's appeal from the demurrer ruling here whether section 54.3 should be construed to include an intent element, i.e., that liability may only attach where a plaintiff alleges not only interference with admittance to or enjoyment of public facilities, but also an intent to so interfere.
Defendants' guard dog's repeated attacks on plaintiff's guide dog and defendants' alleged knowledge of those attacks permits a reasonable inference of intent here.
5. Unequal access
Defendants contend that plaintiff failed to allege he was denied "equal access" to the sidewalk. Section 54.3, however, unlike section 54.1, does not require an allegation of unequal access. "We may not insert words into a statute under the guise of interpretation ...." ( Schroeder v. Irvine City Council (2002)
D. Plaintiff Sufficiently Alleged Standing for Damages
Defendants next assert plaintiff lacks standing to recover damages under section 54.3. Defendants cite the following language from Reycraft v. Lee (2009)
In Reycraft , a disabled plaintiff sued a mobile home park, alleging it had denied her full and equal access to a swimming pool that did not have a lift or other device to help her get into or out of the pool. (
We do not read Reycraft and Urhausen for the proposition that plaintiffs may not sue someone other than the owner or operator of the public facility described in section 54, for violating a plaintiff's rights under the DPA. A defendant's ability to control a particular location may ultimately be relevant to the question of liability, that is, whether defendant interfered with plaintiff's admission to or enjoyment of a public facility. But nothing in the language of section 54.3 suggests that damages may not be recovered against non-owners or operators. To the contrary, section 54.3 broadly and plainly provides: "[a]ny person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in [s]ections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under [s]ections 54, 54.1 and 54.2 is liable for ... actual damages ...."
"Under California law, a plaintiff generally has standing if he or she is able to allege some invasion of a legally protected interest." ( Reycraft, supra ,
E. Motion to Strike
We review an order granting a motion to strike for abuse of discretion. ( Cal-Western Business Services, Inc. v. Corning Capital Group (2013)
IV. DISPOSITION
The orders sustaining the demurrer and granting the motion to strike are reversed. This matter is remanded for further proceedings consistent with this opinion. Plaintiff is entitled to recover his costs on appeal from defendants.
We concur:
BAKER, Acting P.J.
MOOR, J.
Notes
Musclewood's correct name is "Musclewood Property Investments, LLC."
Further statutory references are to the Civil Code unless otherwise indicated. "Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to 55.3, is commonly referred to as the 'Disabled Persons Act,' although it has no official title." (Munson v. Del Taco, Inc. (2009)
Nicole Bautista was also a plaintiff in the action below, but does not appeal.
The prior pleadings are not included in the record on appeal.
Defendants contend plaintiff could not state a cause of action for violating section 54.1. Plaintiff, however, stated in his opposition to the demurrer and reiterates on appeal that he does not seek to pursue a violation of section 54.1. Thus, we need not discuss whether plaintiff stated a cause of action under that section. (See Shaw v. County of Santa Cruz (2008)