Martinez v. California Pizza Kitchen, Inc. ( 2019 )

Filed 11/20/18 Certified for Publication 12/11/18
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
APPELLATE DIVISION
CHRISTOPHER MARTINEZ, Case No: ACIAS 1800020
Plaintiff and Appellant, (Trial Court: CIVDS1724404)
v. PER CURIAM
OPINION
CALIFORNIA PIZZA KITCHEN, INC.,
Defendant and Respondent.
Appeal from judgment of dismissal following order sustaining
demurrer to complaint, San Bernardino County Superior Court, 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.
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
*
Cabrera, P. J., Poncin, J., and Cortez, J.
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
1 Clerk’s Transcript (CT) 2-8
2
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
2 CT 11-20
3 CT 88-89
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Services of San Diego, Inc. v. California Employment Development Dept.
(2005) 133 Cal.App.4th 1470, 1476.) On the other hand, we decide
“whether there is a reasonable possibility that the defect can be cured by
amendment” under an abuse of discretion standard. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
“Under both standards, the plaintiff bears the burden of
demonstrating that the trial court erred.” (Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 879; but see City of Stockton v. Superior Court
(Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730, 746-747 [“The issue
of leave to amend is always open on appeal, even if not raised by the
plaintiff” below].) The judgment must be affirmed “if any of the grounds
raised by defendant require the sustaining of the demurrer, whether or not
the court specifies all the grounds” upon which the demurrer could have
been sustained. (Marin Association of Public Employees v. Marin County
Employees' Retirement Association (2016) 2 Cal.App.5th 674, 691
(Review Granted, November 22, 2016).)
The Unruh Civil Rights Act and the Sufficiency of Martinez’
Allegations
Under the Act, “[a]ll persons within the jurisdiction of this state are
free and equal, and no matter [their disability or other protected
characteristic they] are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments
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of every kind whatsoever.” By the Act’s express terms, any violation of the
ADA is also considered a violation of the Act. (See Civ. Code, §51, subd.
(f); Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 672 [“Because the
Unruh Act has adopted the full expanse of the ADA, it must follow, that the
same standards for liability apply under both Acts”].)
Here, as noted above, Martinez’ claim is premised upon the ADA
and its prohibition against discrimination “on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
accommodation.” (42 U.S.C.A. § 12182, subd. (a).) As a result, to state a
valid claim Martinez was required to allege (1) he has a disability; (2)
CPK’s facility is a place of public accommodation; and (3) he was denied
full and equal treatment because of his disability on a particular occasion.
(Ibid.; Molski v. M.J. Cable, Inc. (2007) 481 F.3d 724, 730; Donald v. Café
Royal, Inc. (1990) 218 Cal.App.3d 168, 183.)
As was the case before the trial court, the parties’ current dispute
centers on the sufficiency of the allegations related to the latter element.
As to this issue, the ADA defines discrimination as “a failure to take such
steps as may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and services,
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unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility, privilege,
advantage, or accommodation being offered or would result in an undue
burden.” (42 U.S.C.A. § 12182, subd. (b)(2)(A)(iii); Baughman v. Walt
Disney World Co. (2013) 217 Cal.App.4th 1438, 1446.) Neither party cites
to authority expressly addressing whether there is liability under the Act or
whether there is a violation of the ADA when a restaurant or bar fails to
provide auxiliary aids to a patron who, because of a disability, is unable to
enjoy music being played over a speaker system.
Instead, Martinez relies upon Feldman v. Pro Football, Inc. (4th Cir.
2011) 419 Fed.Appx. 381) (Feldman). In that case, a federal district court
determined that the owner of the Washington Redskins football team and
the operator of its stadium (FedEx Field) were required to provide auxiliary
aids that enable “equal access to the aural information broadcast over the
stadium bowl public address system.” (Id. at p. 395.) The “aural
information” included “music with lyrics, play information, advertisements,
referee calls, safety/emergency information, and other announcements.”
(Id. at p. 390) Notably, the district court in Feldman, while expressing “no
opinion on the ADA requirements for bars and restaurants” nevertheless
indicated there was a significant difference between a stadium and a bar or
restaurant. (Feldman v. Pro Football, Inc. (D. Md. 2008) 579 F.Supp.2d
697, 709, aff'd (4th Cir. 2011) 419 Fed.Appx. 381.)
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In any event, on appeal, and in an unpublished opinion, the circuit
court in Feldman noted that a Department of Justice (DOJ) regulation
implementing the ADA provides that “a public accommodation shall furnish
appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities.” (Feldman, supra,
419 Fed.Appx. at p. 390, citing 28 C.F.R. § 36.303(c).) However, the circuit
court further indicated that neither the ADA nor its implementing
regulations “impart guidance on the specific content that places of public
accommodation must communicate to individuals who are deaf or hard of
hearing.” (Feldman, supra, 419 Fed.Appx. at p. 390.) Instead, “[t]he
regulation contemplates that, like the type of auxiliary aid, the content that
must be communicated by auxiliary aids is also context-sensitive. What
constitutes ‘full and equal enjoyment’ of a place of public accommodation’s
goods, services, facilities, and privileges necessarily varies based on what
the place provides to visitors and consumers.” (Ibid.)
Applying the law to the facts before it, the circuit court in Feldman
agreed with the district court’s determination “that in the context of a
professional football game at a large stadium like FedEx Field, effective
communication requires defendants to provide auxiliary aids beyond
assistive listening devices, which are useless to plaintiffs, to convey the:
(1) game-related information broadcast over the public address system,
including play information and referee calls; (2) emergency and public
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address announcements broadcast over the public address system; and
(3) the words to music and other entertainment broadcast over the public
address system.” (Feldman, supra, 419 Fed.Appx. at p. 391.) The circuit
court reasoned that the plaintiffs “needed access to this aural content to
have full and equal access to the goods and services that defendants
provide at FedEx Field.” (Ibid.)
In so holding, the circuit court in Feldman first defined the “goods
and services” provided by the defendants as an “entertainment
experience” and not just a football game. The court then explained how
each component of the “aural content” was part of the experience. For
instance, the advertisements communicated which entities supported the
Redskins, which causes the Redskins supported, and how spectators
could become involved. The communications also relayed emergency
information which was necessary to the full use and enjoyment of the
experience since the disabled are disproportionately affected by
emergencies. As for the music, even if it involved nonsensical lyrics it still
added to the environment of “collective excitement” that was being
provided as part of the experience. The music also related to synchronized
entertainment such as the half-time show and cheer performances.
(Feldman, supra, 419 Fed.Appx. at p. 391.)
While unpublished opinions from the court of appeal or superior
court appellate division many not be cited or relied upon, unpublished
8
federal cases “are citable as persuasive, although not precedential,
authority.” (Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342,
1352.) In this regard, while we are not bound by Feldman, the case is
nevertheless persuasive authority from a federal court interpreting federal
laws and regulations. Additionally, we “defer to the interpretation of a
statute by the agencies charged with administering it,” such as those
regulations referenced in Feldman. (Aluminum Co. of America v.
Bonneville Power Admin. (9th Cir. 1989) 903 F.2d 585, 590.)
Turning to the allegations before us, and consistent with Feldman,
we first define the “goods, services, facilities, privileges, advantages, or
accommodations” being provided by CPK in order to determine whether
Martinez was denied “full and equal enjoyment” thereof. Martinez primarily
alleges that CPK operates a “restaurant and bar.” This is important since,
as noted above, the ADA requirements are context-specific. While there
may be some overlap, the ADA generally recognizes a distinction between
restaurants, bars, and similar “establishments serving food or drink” versus
places of “exhibition or entertainment” such as concert halls and stadiums.
(See 42 U.S.C. 12181, subd. (7).) To the extent CPK provided food, drink,
and the hospitality services normally associated with restaurants, Martinez
has failed to state a valid claim since his suit does not relate to the unequal
enjoyment of those goods and services.
9
As for Martinez’ assertion that CPK was playing music over the
speaker system, there are no specific facts alleged to support the
conclusion that the music was part of the overall goods, services, etc.,
being offered by CPK for the use and enjoyment of its patrons. As noted
above, we ignore “contentions, deductions or conclusions of fact or law” in
the complaint. (Adelman v. Associated Intern. Ins. Co., supra, 90
Cal.App.4th at p. 359.) Unlike the facts in Feldman, there is no indication
here that the speaker system was playing advertisements, whether
demonstrating a unique relationship between CPK and its sponsors or
otherwise. In fact, there are no allegations indicating anything was
broadcast over the speaker system other than music. Similarly, there is no
indication that the music was unique to CPK, was live, was part of a
choreographed or promotional event, or was part of the restaurant’s
cultural theme, if any. Furthermore, there is no allegation that the music
was part of an environment of collective excitement, normally seen in the
sporting context, as was the case in Feldman.
By referencing “aurally delivered” as opposed to “orally delivered”
the ADA is meant to include nonverbal sounds, alarms, and computer-
generated speech. (56 F.R. §35544.) However, as the implementing
regulations suggest, one is denied full and equal enjoyment of goods,
services, and the like when, due to a disability and the lack of auxiliary
aids, there is an absence of effective communication relating to those
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goods and services. Absent some additional or unique facts, which
Martinez conceded he could not allege, the music on CPK’s speaker
system was not part of an overall entertainment experience as was the
case in Feldman. Thus, while the music was auditory, it was not part of
that which CPK was required to effectively communicate. While the
complaint does not expressly use the term “background music” as CPK
seems to suggest it does, under the facts alleged the music lacks any
meaningful connection with the goods and services offered by CPK.
Finally, the Circuit Court in McNeil v. Time Ins. Co. (5th Cir. 2000)
205 F.3d 179, 187 noted that while “it is literally possible, though strained,
to construe ‘full and equal enjoyment’ to suggest that the disabled must be
able to enjoy every good and service offered to the same and identical
extent as those who are not disabled ... such a reading is plainly
unrealistic, and surely unintended, because it makes an unattainable
demand.” Overall, the court in McNeil concluded that the ADA prohibits a
place of public accommodation from denying the disabled “access to the
good or service and from interfering with the disableds’ full and equal
enjoyment of the goods and services offered.” (McNeil v. Time Ins. Co.
(5th Cir. 2000) 205 F.3d 179, 188.) Since Martinez was not denied the
food, beverage, or hospitality services offered by CPK and since there are
no facts alleged indicating the music was integrated or otherwise
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connected with the food and services in any meaningful way, the trial court
properly sustained the demurrer and entered judgment.
DISPOSITION
The judgment of the trial court is affirmed.
__________________________________
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
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