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


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         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


                                                                              3
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


                                                                             4
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,


                                                                            5
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.)


                                                                            6
      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


                                                                             7
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


                                                                         10
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




                                                                            11
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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