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Date: 10-06-2018

Case Style: Oscar Ruiz v. Musclewood Investment Properties, LLC

Case Number: B280928

Judge: Kim

Court: California Court of Appeals Second Appellate District Division Five on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Barbosa Group and Patricia Barbosa

Defendant's Attorney: Everett L. Skillman, John V. O’Meara, Arash S. Arabi, and Lital Rebecca Ruimy

Description: Plaintiff Oscar Ruiz is a disabled person who uses a guide
dog. He alleged that defendants Edward Lopez and Musclewood
Investment Properties, LLC (Musclewood)1 violated his rights
under the Disabled Persons Act (Civ. Code, § 54 et seq.) (DPA),
2
by allowing their guard dog to interfere with and attack his guide
dog. Plaintiff contends the trial court erred by sustaining a
demurrer to his cause of action under the DPA without leave to
amend. We agree and reverse. We also reverse the order
granting the motion to strike.
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.3 Defendants demurred, and the trial

1 Musclewood’s correct name is “Musclewood Property
Investments, LLC.”
2 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) 46 Cal.4th 661, 674, fn. 8.)
3 Nicole Bautista was also a plaintiff in the action below, but
does not appeal.
3
court sustained the demurrer as to the first and second causes of
action with leave to amend.
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) 38 Cal.4th 1, 6), plaintiff
has been legally blind since the age of eight. Plaintiff used a
guide dog named Carbon. Lopez was the owner of Musclewood, a
business located in Bell Gardens, California. Defendants
operated a truck hauling business that required trucks to enter
and exit the property through a large metal gate. Defendants
had a guard dog that they permitted to be loose on the property.
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 bus stop. It is not easy for a blind
person to learn alternate routes. The metal gate of defendants’
business was adjacent to a public sidewalk used by plaintiff for
his route. Defendants’ guard dog was not trained, leashed, or
otherwise controlled or restrained and was thus free to exit the
business property, through the metal gate, onto the sidewalk.
The guard dog attacked or growled at plaintiff’s guide dog on six
occasions, including in July, September, and October 2013,
September 2014, and February and June 2015. Plaintiff
complained after these incidents to defendant Lopez, Musclewood
employees, and animal control. Defendants did not act to
restrain, control, or prevent their guard dog from attacking or
4
threatening plaintiff’s guide dog, nor did defendants attempt to
keep the gate closed when plaintiff walked by. Because plaintiff
could not see, he could not protect himself or his guide dog from
the guard dog. As a result of these incidents, plaintiff stopped
walking in front of defendants’ business. Following the attacks
by defendants’ guard dog, plaintiff’s guide dog became fearful of
other dogs, aggressive, and unable to consistently perform its
guide dog duties.
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,4 defendants argued plaintiff failed to allege he was
denied equal access because of his disability. Defendants also
contended that in order to state a claim under the DPA, plaintiff
was required to—but had not—alleged that defendants
maintained a policy or structure that denied a disabled person
equal access.
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

4 The prior pleadings are not included in the record on
appeal.
5
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 June 21, 2016, defendants moved to strike portions of
plaintiff’s first amended complaint, including: the first cause of
action for violation of the DPA; prayer for injunctive relief; prayer
for treble damages; and prayer for attorney fees. Defendants
argued that since plaintiff failed to state a DPA cause of action,
the injunctive relief, treble damages, and attorney fees requested
should be stricken as these remedies are not available for a
negligence cause of action.
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.
6
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) 27 Cal.4th 1112,
1126 [(Zelig)].) Further, we treat the demurrer as admitting all
material facts properly pleaded, but do not assume the truth of
contentions, deductions or conclusions of law. (Ibid.; Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 (Aubry).)
When a demurrer is sustained, we determine whether the
complaint states facts sufficient to constitute a cause of action.
(Zelig, supra, 27 Cal.4th at p. 1126.)” (City of Dinuba v. County
of Tulare (2007) 41 Cal.4th 859, 865.) “In ruling on a demurrer,
the court may ‘“take judicial notice of a party’s earlier pleadings
. . . .” [Citations.]’” (Wilkinson v. Zelen (2008) 167 Cal.App.4th
37, 43.) “The judgment must be affirmed ‘if any one of the
several grounds of demurrer is well taken. [Citations.]’” (Aubry,
supra, 2 Cal.4th at p. 967.)
B. Rules of Statutory Construction
We review questions of law and statutory interpretation de
novo. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.)
“‘Under settled canons of statutory construction, in construing a
statute we ascertain the Legislature’s intent in order to
effectuate the law’s purpose. [Citation.] We must look to the
7
statute’s words and give them their usual and ordinary meaning.
[Citation.]’” (People v. Robinson (2010) 47 Cal.4th 1104, 1138.)
“In doing so, however, we do not consider the statutory language
‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance
of the statute . . . in order to determine the scope and purpose of
the provision . . . . [Citation.]’ [Citation.] . . . We must
harmonize ‘the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.’” (People v. Mendoza (2000) 23
Cal.4th 896, 907-908.) “‘The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.’” (People
v. Robinson, supra, 47 Cal.4th at p. 1138.)
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).)
8
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
dog is being aggressive. . . . Any guide dogs who are distracted in
public, or act aggressively in any situation may result in the dog
being retired as a guide dog.” Plaintiff further alleged that as a
result of defendants’ guard dog’s attacks, plaintiff’s guide dog was
“now nervous and afraid around other dogs and [did] not properly
follow commands.” Thus, plaintiff sufficiently alleged
interference.
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).)
9
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.5
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,

5 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) 170 Cal.App.4th 229, 259 [Court of
Appeal does not resolve matters unnecessary to appellate
decision].)
10
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) 97
Cal.App.4th 174, 194; accord, Kovacevic v. Avalon at Eagles’
Crossing Homeowners Assn. (2010) 189 Cal.App.4th 677, 685; see
Code Civ. Proc., § 1858 [when construing statute, judge is not to
insert what has been omitted].) Because we find plaintiff
sufficiently alleged a violation of section 54.3 for interference
with admittance to or enjoyment of a public facility, we need not
discuss the parties’ other contentions. (See Shaw v. County of
Santa Cruz, supra, 170 Cal.App.4th at p. 259.)
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) 177 Cal.App.4th 1211, 1224
(Reycraft), in support: “standing under section 54.3 of the DPA is
established where a disabled [person] can show he or she actually
presented himself or herself to a business or public place with the
intent of purchasing its products or utilizing its services in the
manner in which those products and/or services are typically
offered to the public and was actually denied equal access on a
particular occasion.” There is no dispute that plaintiff never
sought defendants’ services as a truck hauling business.
Defendants’ position is nonetheless unavailing.
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. (177 Cal.App.4th at p. 1216.) The plaintiff’s
11
sister-in-law was a tenant of the mobile home park. (Id. at
p. 1215.) The mobile home park’s rules required that guests
register and pay a $10 fee to use the pool. (Id. at p. 1215.) The
plaintiff neither registered nor paid the guest fee. (Id. at
p. 1216.) The court noted that “the Park does not fall outside
section 54.1 simply because an individual who went there did not
pay the rent or fees and/or did not follow the rules. However, any
such facts could be relevant to determining whether and to what
extent a particular disabled individual suffered recoverable
damages as a result of a violation of section 54.1.” (Id. at
p. 1218.) The court continued, “standing under section 54.3 of the
DPA is established where a disabled plaintiff can show he or she
actually presented himself or herself to a business or public place
with the intent of purchasing its products or utilizing its services
in the manner in which those products and/or services are
typically offered to the public and was actually denied equal
access on a particular occasion.” (Id. at p. 1224.) Based on these
facts, the trial court concluded that the plaintiff did not have
standing to sue for damages because she had not sufficiently
demonstrated “an actual denial or interference with access on a
particular occasion, as opposed to merely becoming aware of
discriminatory conditions in the pool area of the [mobile home
park].” (Id. at p. 1225.) The court cited Urhausen v. Longs Drug
Stores California, Inc. (2007) 155 Cal.App.4th 254 (Urhausen) in
support. (Reycraft, supra, 177 Cal.App.4th at pp. 1222-1223.)
The plaintiff in Urhausen had sought damages against the owner
and operator of a drug store for an alleged violation of section
54.1, namely, a denial of her full and equal access to the
drugstore. (Urhausen, supra, 155 Cal.App.4th at p. 261.)
12
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, 177 Cal.App.4th at p. 1220.) In our
view, Reycraft does not require that a plaintiff who sues for
interference of his rights must present himself to defendant’s
business, with the intent to utilize defendant’s services. Instead,
a plaintiff who seeks damages for a violation of section 54.3 must
establish that he “presented himself” to a “public place” with the
intent of “utilizing its services in the manner in which those . . .
services are typically offered to the public and was actually
denied” admission or enjoyment (or had his admission or
enjoyment interfered with) on a particular occasion. (Reycraft,
supra, 177 Cal.App.4th at p. 1224.) Here, as alleged, plaintiff
presented himself at a public place (the sidewalk) with the intent
of using it in the manner it is typically offered to the public
13
(walking on it for travel), and actually had his enjoyment
interfered with on six occasions. Plaintiff therefore has standing
to sue for damages.
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) 221 Cal.App.4th 304, 309.) “However, the
proper interpretation of a statute, and its application to
undisputed facts, presents a question of law subject to de novo
review.” (Ibid.) Because plaintiff stated a cause of action for
violation of the DPA, the trial court committed reversible error by
striking the first cause of action, the prayer for damages
(including treble damages), and the prayer for attorney fees.
(§ 54.3, subd. (a).) Plaintiff has failed to argue how the trial court
erred in striking the prayer for injunctive relief, which is not
available under section 54.3. We thus treat the point as waived.
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956; Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th
442, 451-452.)

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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