Shevtsov v. The Cheesecake Factory CA2/3 ( 2021 )


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  • Filed 5/19/21 Shevtsov v. The Cheesecake Factory CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115(a).
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    YEVGENYA SHEVTSOV et al.,                                       B300116
    Plaintiffs and Appellants,                                Los Angeles County
    Super. Ct. No. EC069222
    v.
    THE CHEESECAKE FACTORY
    et al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, William D. Stewart, Judge. Reversed with
    directions.
    Yevgenya Shevtsov and Tatyana Shevtsov, in pro. per., for
    Plaintiffs and Appellants.
    Ogletree, Deakins, Nash, Smoak & Stewart, Amber L.
    Roller and J. Nicholas Marfori, for Defendant and Respondent.
    INTRODUCTION
    When plaintiffs and appellants Tatyana Shevtsov and
    Yevgenya Shevtsov dined at the Cheesecake Factory on
    September 11, 2016, they were initially denied seating at one of
    several available booths. Eventually, they were given a booth in
    an out-of-the-way back corner of the restaurant. When Tatyana1
    spoke to the manager about the incident on September 20, 2016,
    she learned that the Cheesecake Factory has a policy of not
    allowing customers with wheelchairs to sit in booths, even if the
    wheelchair folds. Yevgenya uses a wheelchair. On September 19,
    2018, the Shevtsovs sued defendant and respondent The
    Cheesecake Factory Restaurants, Inc. (Cheesecake Factory)
    claiming violation of the Unruh Civil Rights Act (Civ. Code,2
    §§ 51, 51.5) (Unruh Act). The trial court sustained the
    Cheesecake Factory’s demurrer to the Shevtsovs’ first amended
    complaint without leave to amend, holding that the claim had
    accrued on September 11, 2016, making it untimely under the
    Unruh Act’s two-year statute of limitations.
    On appeal, the Shevtsovs argue that their claim accrued on
    September 20, 2016, when they learned about the discrimination,
    not on September 11, 2016, when the discrimination occurred.
    They also argue that the relevant statute of limitations is three
    years, not two.3 The Cheesecake Factory argues that the claim is
    time-barred under the two-year statute of limitations and, in any
    1   For clarity, we refer to the family members by their first names.
    2   All undesignated statutory references are to the Civil Code.
    3The Shevtsovs also raise several procedural issues related to the
    demurrer, which we do not reach.
    2
    event, the demurrer was properly sustained because the
    Shevtsovs failed to state a claim. We conclude that the Shevtsovs
    could allege additional facts showing that their claim accrued on
    September 20, 2016, and their complaint was therefore timely
    under the two-year statute of limitations. We also conclude that
    the Shevtsovs stated a claim for relief under the Unruh Act. We
    therefore reverse.
    FACTS AND PROCEDURAL BACKGROUND
    1.    The Shevtsovs Visit the Cheesecake Factory
    On September 11, 2016, the Shevtsovs—mother Tatyana,
    father Vladimir, and daughter Yevgenya—visited the Cheesecake
    Factory in Glendale. Yevgenya was using a folding wheelchair.
    The family was seated in an inconvenient, noisy location, so they
    asked to be moved to a booth that appeared to be available. After
    speaking to someone, the hostess refused, claiming the booth
    “might” be reserved. When the family pointed out other empty
    booths, the hostess responded that they “might” be reserved as
    well. The Shevtsovs asked to speak to a manager, but no one
    appeared. After waiting for another 10 minutes or so, they
    decided to leave. At that point, another employee appeared and
    seated the family in a booth in a back corner of the restaurant.
    On September 20, 2016, Tatyana spoke with the
    restaurant’s manager about the visit. He told her that it was the
    restaurant’s policy not to allow customers in wheelchairs to sit in
    booths, even if they used folding chairs. He also said that if they
    wanted to use a booth when visiting the restaurant with a
    disabled person in the future, they would need to call ahead and
    make a reservation. Tatyana later learned that the Cheesecake
    Factory doesn’t take reservations.
    3
    2.       Complaint and Demurrer
    Yevgenya and Tatyana filed a complaint on September 19,
    2018.4 The operative first amended complaint alleged intentional
    discrimination under the Unruh Act and the Americans with
    Disabilities Act. The Shevtsovs sought injunctive relief and
    damages. The Cheesecake Factory demurred to the first amended
    complaint, claiming it was untimely and failed to state a claim.
    The court rejected the Cheesecake Factory’s argument that
    the Shevtsovs had failed to state a claim but sustained the
    demurrer without leave to amend on statute of limitations
    grounds. The court held that the claim had accrued on
    September 11, 2016, the date of the discrimination, because the
    conversation on September 20, 2016, was not an independent
    injury. The court entered a judgment of dismissal, and the
    Shevtsovs filed a timely notice of appeal.
    DISCUSSION
    The Shevtsovs contend the court erred in sustaining the
    Cheesecake Factory’s demurrer to their Unruh Act claim without
    leave to amend. They argue that under the delayed discovery
    rule, their claim did not accrue until September 20, 2016, when
    they learned they had suffered intentional discrimination. They
    also argue that the statute of limitations for Unruh Act claims is
    three years, not two. The Cheesecake Factory contends that
    regardless of the statute of limitations, the Shevtsovs failed to
    state a claim upon which relief can be granted.
    4   Vladimir Shevtsov is not a plaintiff in this suit.
    4
    1.    Standard of Review
    “ ‘When reviewing a judgment dismissing a complaint after
    the granting of a demurrer without leave to amend, courts must
    assume the truth of the complaint's properly pleaded or implied
    factual allegations. (Blank v. Kirwan (1985) 
    39 Cal.3d 311
    , 318.)
    Courts must also consider judicially noticed matters. (Ibid.) In
    addition, we give the complaint a reasonable interpretation, and
    read it in context. (Ibid.) If the trial court has sustained the
    demurrer, we determine whether the complaint states facts
    sufficient to state a cause of action. If the court sustained the
    demurrer without leave to amend, as here, we must decide
    whether there is a reasonable possibility the plaintiff could cure
    the defect with an amendment. (Ibid.) If we find that an
    amendment could cure the defect, we conclude that the trial court
    abused its discretion and we reverse; if not, no abuse of discretion
    has occurred. (Ibid.) The plaintiff has the burden of proving that
    an amendment would cure the defect. (Ibid.)’ [Citation.] ‘If a
    complaint is insufficient on any ground specified in the demurrer,
    the order sustaining the demurrer must be upheld even though
    the particular ground upon which the court sustained it may be
    untenable. [Citation.]’ [Citation.]
    “In light of these principles, the difficulties in demurring on
    statute of limitations grounds are clear: ‘(1) trial and appellate
    courts treat the demurrer as admitting all material facts properly
    pleaded and (2) resolution of the statute of limitations issue can
    involve questions of fact. Furthermore, when the relevant facts
    are not clear such that the cause of action might be, but is not
    necessarily, time-barred, the demurrer will be overruled.
    [Citation.] Thus, for a demurrer based on the statute of
    limitations to be sustained, the untimeliness of the lawsuit must
    5
    clearly and affirmatively appear on the face of the complaint and
    matters judicially noticed. [Citation.]’ [Citations.]” (Austin v.
    Medicis (2018) 
    21 Cal.App.5th 577
    , 584–585 (Austin).)
    2.    Statute of Limitations
    Because the Unruh Act lacks an explicit statute of
    limitations, courts interpreting the Act must borrow statutes of
    limitations from other laws. (Gatto v. County of Sonoma (2002) 
    98 Cal.App.4th 744
    , 753.) Most claims under the Act are subject to
    the two-year limitations period for personal injury claims. (Code
    Civ. Proc., § 335.1; Gatto, at pp. 754–760.)5 But as the Shevtsovs
    note, when a claim is alleged, in part, under section 51,
    subdivision (f)—which, as relevant here, incorporates Title III of
    the Americans with Disabilities Act (ADA), 
    42 U.S.C. § 12101
     et
    seq.—the statute of limitations may instead be the three-year
    period that applies to liabilities created by statute (Code Civ.
    Proc., § 338, subd. (a)). (Gatto, at p. 759; Estate of Stern v. Tuscan
    Retreat, Inc. (9th Cir. 2018) 
    725 Fed.Appx. 518
    , 526 [noting “[w]e
    have not decided the limitations period for Title III claims” in
    California, but “the only conceivable options” are two or three
    years].) We see no need to contribute to the ongoing discourse as
    to the appropriate statute of limitations because, as discussed
    below, we conclude the Shevtsovs could allege additional facts
    showing that the claim is timely even under the two-year period.
    5 Gatto held that the one-year limitations period for personal injury
    claims in former Code of Civil Procedure section 340, subdivision (3),
    applied. Since then, the Legislature has renumbered that statute to
    Code of Civil Procedure section 335.1 and changed the statute of
    limitations to two years.
    6
    3.    Accrual and the Discovery Rule
    A “ ‘statute of limitations does not begin to run until the
    cause of action accrues, that is, “ ‘until the party owning it is
    entitled to begin and prosecute an action thereon.’ ” [Citation.]’
    [Citation.] Thus, to determine when the statute[ ] of limitations
    ended, we must first address when [it] began.” (Austin, supra, 21
    Cal.App.5th at pp. 587–588.) “Generally speaking, a cause of
    action accrues at ‘the time when the cause of action is complete
    with all of its elements.’ [Citations.]” (Fox v. Ethicon Endo-
    Surgery, Inc. (2005) 
    35 Cal.4th 797
    , 806–807 (Fox).)
    “An important exception to the general rule of accrual is
    the ‘discovery rule,’ which postpones accrual of a cause of action
    until the plaintiff discovers, or has reason to discover, the cause
    of action. [Citations.]” (Fox, 
    supra,
     35 Cal.4th at p. 807.) “A
    plaintiff has reason to discover a cause of action when he or she
    ‘has reason at least to suspect a factual basis for its elements.’
    [Citations.] Under the discovery rule, suspicion of one or more of
    the elements of a cause of action, coupled with knowledge of any
    remaining elements, will generally trigger the statute of
    limitations period. [Citations.]” (Ibid.) “In other words, plaintiffs
    are required to conduct a reasonable investigation after becoming
    aware of an injury, and are charged with knowledge of the
    information that would have been revealed by such an
    investigation.” (Id. at p. 808.)
    “[T]o rely on the discovery rule for delayed accrual of a
    cause of action, ‘[a] plaintiff whose complaint shows on its face
    that his claim would be barred without the benefit of the
    discovery rule must specifically plead facts to show (1) the time
    and manner of discovery and (2) the inability to have made
    earlier discovery despite reasonable diligence.’ [Citation.] In
    7
    assessing the sufficiency of the allegations of delayed discovery,
    the court places the burden on the plaintiff to ‘show diligence’;
    ‘conclusory allegations will not withstand demurrer.’ [Citation.]”
    (Fox, 
    supra,
     35 Cal.4th at p. 808.)
    Although belated discovery is usually a question of fact, it
    may be decided as a matter of law when reasonable minds cannot
    differ. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 
    153 Cal.App.4th 1308
    , 1320 (E-Fab).) “Thus, when an appeal is taken
    from a judgment of dismissal following the sustention of a
    demurrer, ‘the issue is whether the trial court could determine as
    a matter of law that failure to discover was due to failure to
    investigate or to act without diligence.’ [Citation.]” (Ibid.)
    4.    The Shevtsovs can allege additional facts showing that
    their Unruh Act claim is timely.
    The Cheesecake Factory argues that the Shevtsovs’ cause
    of action accrued on September 11, 2016, when the family was
    initially denied a booth then seated in an undesirable location. As
    they did not file this action until September 19, 2018, the
    complaint is time-barred. The Shevtsovs contend that their
    lawsuit is timely under the delayed discovery rule. Specifically,
    they assert that they did not know—and had no way to learn—
    that their ill-treatment was caused by discrimination rather than
    just bad service until September 20, 2016, when Tatyana spoke to
    the restaurant manager. This distinction matters because unlike
    claims under the ADA, the Unruh Act requires plaintiffs to prove
    intentional discrimination. (Turner v. Association of American
    Medical Colleges (2008) 
    167 Cal.App.4th 1401
    , 1407–1409; Cohn
    v. Corinthian Colleges, Inc. (2008) 
    169 Cal.App.4th 523
    , 528
    [Unruh Act requires a showing of intentional discrimination];
    Munson v. Del Taco, Inc. (2009) 
    46 Cal.4th 661
    , 687 [violations of
    8
    section 51, subdivision (f), which incorporates the ADA, do not
    require proof of intentional discrimination to obtain statutory
    damages].)
    Based on the allegations in the operative pleading, the
    Shevtsovs knew on September 11, 2016, that the Cheesecake
    Factory had treated them poorly. As such, under the Unruh Act,
    they were required to conduct a reasonable investigation to
    determine whether their poor treatment was the result of
    purposeful discrimination. (Fox, 
    supra,
     35 Cal.4th at pp. 808–
    809.) A nine-day delay does not appear to be unreasonable as a
    matter of law. (See E-Fab, supra, 153 Cal.App.4th at p. 1320
    [reasonableness of delay typically a factual question].)
    Even so, to support their theory of delayed discovery, the
    Shevtsovs were required to plead that, despite diligent
    investigation of the circumstances of their injury, they “could not
    have reasonably discovered facts supporting the cause of action
    within the applicable statute of limitations period.” (Fox, supra,
    35 Cal.4th at p. 809.) And the Cheesecake Factory insists that
    although the complaint alleges that Tatyana spoke to the
    manager on September 20, 2016, it does not specify what, if any,
    specific efforts the Shevtsovs undertook to uncover the purported
    discrimination in the week and a half before that call.
    Be that as it may, if we find that an amendment to the
    complaint could cure that defect, we must conclude that the trial
    court abused its discretion by sustaining the demurrer without
    leave to amend. (Austin, supra, 21 Cal.App.5th at p. 584.) In their
    appellate briefs in this case, the Shevtsovs concede that the
    operative complaint doesn’t specify when they first tried to
    contact the manager—but they allege that the September 20,
    2016 conversation was not their first try; instead, it was the
    9
    manager’s ultimate response to several messages Tatyana had
    left him earlier in the week when he was out sick. As such, it
    appears that the Shevtsovs may be able to cure the defect by
    amending their complaint to specify what actions they took
    between September 11 and 20, 2016, and to plead that, despite
    diligent investigation of the circumstances of their injury, they
    “could not have reasonably discovered … within the applicable
    statute of limitations period” that they suffered intentional
    discrimination. (Fox, supra, 35 Cal.4th at p. 809.)
    5.    The Shevtsovs have stated a claim for relief.
    Enacted in 1959, the Unruh Act amended an 1897 version
    of section 51 that required places of public accommodation “ ‘to
    serve all customers on reasonable terms without discrimination
    and ... to provide the kind of product or service reasonably to be
    expected from their economic role.’ ” (In re Cox (1970) 
    3 Cal.3d 205
    , 212.) The Legislature’s goal in enacting the law was to ban
    all forms of arbitrary discrimination in public accommodations.
    (Isbister v. Boys’ Club of Santa Cruz (1985) 
    40 Cal.3d 72
    , 75 [“The
    Act is this state’s bulwark against arbitrary discrimination in
    places of public accommodation”].) Section 51, subdivision (b),
    states: “All persons within the jurisdiction of this state are free
    and equal, and no matter what their sex, race, color, religion,
    ancestry, national origin, disability, or medical condition … are
    entitled to the full and equal accommodations, advantages,
    facilities, privileges, or services in all business establishments of
    every kind whatsoever.” (Italics added.) Subdivision (f), in turn,
    provides that any violation of the ADA also violates the Act.
    The Cheesecake Factory contends that the Shevtsovs have
    not stated a claim for relief under the Unruh Act because they
    were neither denied service under section 51, subdivision (b), nor
    10
    denied a request for an accommodation under subdivision (f). (See
    Code Civ. Proc., § 430.10, subd. (e) [demurrer is appropriate
    where the “pleading does not state facts sufficient to constitute a
    cause of action.”].) We disagree.
    5.1.   Failure to State a Claim Under Subdivision (b)
    By failing to provide us with proper legal authority, the
    Cheesecake Factory has forfeited its claim that that it did not
    deny service to the Shevtsovs under subdivision (b) of the Unruh
    Act. (See Benach v. County of Los Angeles (2007) 
    149 Cal.App.4th 836
    , 852 [failure to develop claim with reasoned legal argument
    and supporting authority forfeits the issue].) The Cheesecake
    Factory’s two legal citations are to unpublished summary
    judgment orders from federal district courts. We are not bound by
    decisions of lower federal courts, even on federal questions.
    (People v. Bradley (1969) 
    1 Cal.3d 80
    , 86.) But even if we were
    inclined to treat the federal courts’ interpretation of California
    state law as persuasive authority—which we are not—because
    the orders are unpublished, we may not even do that. (Cal. Rules
    of Court, rule 8.1115(a).) Regardless, both orders mention the
    Unruh Act only in passing, and neither order is relevant to the
    issue before us.6
    6 We note that even if the Cheesecake Factory had not forfeited the
    issue, we would reject the argument that a plaintiff can only state a
    claim under the Unruh Act if he or she has been wholly denied service.
    (See, e.g., Koire v. Metro Car Wash (1985) 
    40 Cal.3d 24
    , 34–38 [sex-
    based price discounts at a bar and car wash were arbitrary
    discrimination under the Act].)
    11
    5.2.   Failure to State a Claim Under Subdivision (f)
    As discussed, because the Unruh Act incorporates the ADA,
    a violation of the ADA is also a violation of the Unruh Act. (§ 51,
    subd. (f).) To support its claim that the Shevtsovs were not denied
    a request for an accommodation under the ADA, the Cheesecake
    Factory cites only federal authority, much of which is
    unpublished. Here, however, we review the published cases for
    their persuasive value in interpreting a federal statute.
    The Cheesecake Factory cites O’Conner v. Scottsdale
    Healthcare Corp. (D.Ariz. 2012) 
    871 F.Supp.2d 900
     for the
    proposition that a mere delay in accommodation is not actionable
    under the ADA. In that case, the plaintiff’s visit to her
    hospitalized mother was delayed because a hospital security
    guard wanted her to register her service dog before entering the
    building. Ultimately, however, a manager allowed the plaintiff to
    enter without registering the dog. The court held that the delay
    alone did not violate the ADA. But O’Conner, unlike this case, did
    not involve an explicitly discriminatory policy. And unlike the
    plaintiffs in this case, the plaintiff in O’Conner ultimately got
    exactly what she wanted.
    Likewise, in Skaff v. Meridien North America Beverly Hills,
    LLC (9th Cir. 2007) 
    506 F.3d 832
    , the plaintiff was initially
    assigned a hotel room with an inaccessible shower. When he
    brought the mistake to the hotel’s attention, staff “immediately
    corrected” it by assigning him to a room with a roll-in shower. (Id.
    at pp. 839–840.) As in O’Conner, although the Skaff plaintiff had
    to wait, he ultimately received exactly what he wanted. Here,
    however, the Shevtsovs allege not only that the Cheesecake
    Factory failed to seat them promptly but also that the delay was
    due to a discriminatory company policy and that after the delay,
    12
    they were treated materially worse than non-disabled customers
    when they were seated in an undesirable booth despite the
    availability of other, better booths.
    In sum, we reject the Cheesecake Factory’s insistence that
    the Shevtsovs are griping about having to wait 10 minutes. The
    question in this case is not whether the Cheesecake Factory
    accommodated the Shevtsovs quickly enough. Instead, the
    Shevtsovs’ argument is that they were made to wait, then
    consigned to an undesirable booth because of a company policy of
    treating their disabled customers differently—and worse—than
    customers who are not disabled. When a company policy is at
    issue, the question under the ADA is whether the business’s
    policy impacts the plaintiff’s “ ‘full and equal enjoyment’ ” of the
    facility. (Chapman v. Pier 1 Imports (9th Cir. 2011) 
    631 F.3d 939
    ,
    947; 
    id. at 945
     [“The concept of ‘discrimination’ under the ADA
    does not extend only to obviously exclusionary conduct—such as a
    sign stating that persons with disabilities are unwelcome or an
    obstacle course leading to a store’s entrance. Rather, the ADA
    proscribes more subtle forms of discrimination—such as difficult-
    to-navigate restrooms and hard-to-open doors—that interfere
    with the disabled individuals’ ‘full and equal enjoyment’ of places
    of public accommodation.”].) Contrary to the Cheesecake
    Factory’s implication, a business can discriminate even if it
    doesn’t “completely preclude the plaintiff from entering or from
    using a facility in any way.” (Id. at p. 947.)
    We therefore conclude that the allegations in the operative
    complaint are sufficient to state a claim under the Unruh Act,
    section 51, subdivisions (b) and (f).
    13
    DISPOSITION
    The judgment is reversed. On remand, the court shall
    vacate its order sustaining the Cheesecake Factory’s demurrer
    without leave to amend and shall allow the Shevtsovs an
    opportunity to amend their complaint consistent with the views
    expressed in this opinion. Tatyana Shevtsov and Yevgenya
    Shevtsov shall recover their costs on appeal.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    LAVIN, J.
    WE CONCUR:
    EDMON, P. J.
    EGERTON, J.
    14