Osborne v. Yasmeh

         [CERTIFIED FOR PARTIAL PUBLICATION^[*]]

         APPEAL from judgments of the Superior Court of Los Angeles County, Nos. BC527112, No. BC553653 Richard L. Fruin and William F. Fahey, Judges.

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         COUNSEL

         Glenn A. Murphy for Plaintiffs and Appellants.

         Courtney M. Coates for Defendants and Respondents.

         OPINION

         COLLINS, J.

         INTRODUCTION

         Plaintiffs John Flowers, Rebecca Osborne, Seth Messmer, and Kody Messmer (collectively, plaintiffs) allege that they visited a hotel owned and managed by defendants Bruce Yasmeh, Alfred Yasmeh, American Property Management, and INE Capital Holdings.^[1] Flowers is paraplegic and employs the use of a service dog. Osborne is Flowers’s wife, and the Messmers are Flowers’s stepsons. Plaintiffs allege that they visited defendants’ hotel, but management refused to rent them a room unless they first paid a non-refundable cleaning fee relating to the dog. They allege that the charge for the room was $80, and the nonrefundable cleaning fee was $300. Plaintiffs left the hotel without paying the fee or checking in as guests.

         Plaintiffs sued defendants in two separate lawsuits, one brought by Osborne and one brought by Flowers and the Messmers. In both actions, plaintiffs alleged violations of the Unruh Civil Rights Act (Civil Code, § 51^[2]) and intentional infliction of emotional distress. Defendants argued that plaintiffs’ pleadings could not establish standing due to a “bright-line rule” articulated in Surrey v. True Beginnings (2008) 168 Cal.App.4th 414, 416 [85 Cal.Rptr.3d 443] (Surrey), that under the Unruh Civil Rights Act, “a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices relating thereto.” Because plaintiffs left the hotel without paying the fee, defendants argued, they did not have standing to assert an Unruh Civil Rights Act cause of action. The trial court sustained defendants’ demurrers without leave to amend. Plaintiffs appealed from the judgments entered in their two separate cases. We consolidated the cases for purposes of oral argument and decision.

         While we agree with the result in Surrey, we find that its bright-line rule is not applicable to the facts of this case. Section 52, which provides

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remedies for violations of the Unruh Civil Rights Act, states that any person aggrieved by conduct that violates the Unruh Civil Rights Act may bring a civil action. (§ 52, subd. (c).) When a disabled person such as Flowers alleges that he presented himself to a business establishment and was required to pay a fee relating to his disability before accessing the products or services offered, he has stated facts sufficient to establish that he is a person aggrieved as defined in section 52, subdivision (c), and he has therefore alleged facts sufficient to demonstrate standing to sue under the Unruh Civil Rights Act. A plaintiff is not required to pay a discriminatory fee to establish standing to sue under the Unruh Civil Rights Act, as long as the plaintiff alleges facts showing that he or she has directly experienced a denial of rights as defined in sections 51 and 52. In addition, when a disabled individual has standing to sue under section 52, subdivision (c), any person “associated with” that individual (§ 51.5, subd. (a)) has standing if the associated person has also directly experienced the discriminatory conduct. We therefore reverse the judgments below and remand for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Rebecca Osborne^[3] filed her complaint on November 8, 2013, alleging a violation of the Unruh Civil Rights Act and section 51.5.^[4] Osborne alleged that in July 2013, she was “associated with a disabled person who uses an assistance animal to manage a disability, ” and that she was denied accommodation at defendants’ hotel as a result. She alleged, “Defendants insisted the lodging offered to the general public could not be offered to Plaintiff unless a non-refundable cleaning fee deposit of $300 was paid, in addition to the regular room fee of approximately $80 normally charged to all other members of the general public, since Plaintiff was associated with and was using an assistance animal.” Osborne sought injunctive relief, a $4, 000 statutory penalty (§ 52, subd. (a)), and attorney fees. Osborne’s case was assigned to superior court Department 15, before Judge Richard Fruin.

         In July 2014, shortly before trial, defendants moved for judgment on the pleadings. Defendants argued that according to the rule articulated in Surrey, where a plaintiff alleges a defendant charged a discriminatory fee, the plaintiff must “tender the purchase price for a business’s services or products” in order to establish standing under the Unruh Civil Rights Act. (Surrey, supra, 168 Cal.App.4th at p. 416.) Because Osborne did not allege that she paid the fee and rented a hotel room, defendants argued, she did not establish standing.

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         Before defendants’ motion was heard, plaintiffs Flowers and the Messmers filed a complaint on August 4, 2014. Like Osborne, Flowers and the Messmers alleged that they visited defendants’ hotel in July 2013. They alleged that Flowers was refused a room because he was a disabled person who used a licensed service dog, and the Messmers were refused a room for being associated with Flowers. They alleged that “Defendants insisted the lodging offered to the general public could not be offered to Plaintiff unless a non-refundable cleaning fee deposit of $300 was paid, in addition to the regular room fee of approximately $80 normally charged to all other members of the general public.” Flowers and the Messmers asserted a cause of action for violation of the Unruh Civil Rights Act and section 51.5, and a cause of action for intentional infliction of emotional distress.

         When they filed their complaint, Flowers and the Messmers also filed a notice of related cases, alerting the superior court to the pending Osborne case. For reasons unclear to us, the trial court deemed the cases not related, ^[5] and the Flowers/Messmer case was assigned to superior court department 69 before Judge William F. Fahey.

         In Osborne’s case, Judge Fruin granted defendants’ motion for judgment on the pleadings in August 2014. Judge Fruin held that under Surrey, Osborne was required to allege that she paid the fee to establish standing. The court granted Osborne leave to amend her complaint.

         Osborne filed a first amended complaint on August 18, 2014. She added an allegation that “Plaintiff, through a family member, offered to pay the deposit, but it was refused since the hotel did not want a dog in the hotel and the hotel manager claimed the hotel had a right of refusal.” She also alleged that “Defendant’s managing agent was told, and clearly understood since it was obvious, that the husband of Plaintiff was disabled in a wheelchair and had with him a service dog to assist in managing his disability.” Osborne also alleged that they were refused service not only because of the cleaning fee, but also because no dogs were allowed at the hotel. She alleged that defendants’ managing agent “spoke loud enough so that the other guests could clearly hear and understand that Plaintiffs were being ejected, and this conduct was intentionally done to embarrass and publicly humiliate Plaintiffs and their family....” She added that the “supposed requirement for a deposit was a trick and subterfuge and used by Defendants as a way of refusing a

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room to Plaintiff and getting her and her family to leave with the dog.” Osborne alleged a cause of action for violation of the Unruh Civil Rights Act and section 51.5, and added a cause of action for intentional infliction of emotional distress, incorporating the allegations from the Unruh Civil Rights Act cause of action.

         Defendants moved for summary judgment and demurred to Osborne’s first amended complaint. Because the motion for summary judgment was deemed moot when the trial court sustained defendants’ demurrer without leave to amend, we focus on the demurrer. In their demurrer, defendants again argued that Osborne lacked standing due to the Surrey rule that a plaintiff must pay the allegedly discriminatory fee to establish standing under the Unruh Act, and the expanded allegation that a family member attempted to pay the fee was insufficient to meet this requirement. Defendants also argued that the first amended complaint was a sham pleading. They argued that Osborne changed her allegations, maintaining in the amended complaint that defendants refused to provide her with a hotel room not because of the cleaning fee, as previously alleged, but simply because they did not want dogs in the hotel. Referencing Osborne’s deposition testimony, discovery responses, and other documents, defendants argued that Osborne made clear that she never attempted to pay the alleged additional fee, and the amended complaint therefore “directly contradicts judicial admissions made in the original complaint, deposition testimony, and prior sworn admissions.” Osborne opposed the demurrer.

         On December 5, 2014, Judge Fruin sustained defendants’ demurrer to Osborne’s amended complaint without leave to amend. The court held that Osborne’s new allegations did not cure the defect in the original complaint, because Surrey requires a plaintiff to pay the discriminatory fee to establish standing. The court considered Osborne’s previous complaint and statements in her deposition that the family was refused accommodation at the hotel because of the cleaning fee, and contrasted these allegations with her allegations in the first amended complaint that the hotel simply did not want dogs in the hotel. The court also held that because Osborne’s allegations and statements in discovery focused on the fee rather than an outright refusal to allow dogs, the ...