* Cabrera, P. J., Poncin, J., and Cortez, J.

Filed 11/20/18 Certified for Publication 12/11/18

T O BE PUBLISHED IN THE OFFICIAL REPORTS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO APPELLATE DIVISION CHRISTOPHER MARTINEZ , Plaintiff and Appellant ,
v. CALIFORNIA PIZZA KITCHEN , INC., Defendant and Respondent

. Case No: ACIAS 1 800020 (Trial Court: CIVDS 1724404 )
P E R C U R I A M O P I N I O N

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.
T H E C O U R T

. *

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FACT UAL AND PROCEDURAL BACKGROUND Plaintiff and appellant Christopher Martinez ( Martine z) 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 of2

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 ju risdiction 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, b ecause of
t h e disability Martinez was unable to enjoy the music that was playing over the speaker system ; m usic which Martinez contends was part of the “servi ces, 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 C PK “failed and refused to provide

... an auxiliary aid or service ” despite his expres s 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 C lerk’s Transcript (C T ) 2

- 83

In demurring to the complaint, CPK argued that the federal authority underlying Martinez’ claim only requir es a place of public accommodation to provide auxiliary aids when necessary to ensure effective communication of information

. Thus, a ccording to CPK, Martinez’ claim fail s since it related to “background music” as opposed to communications between the partie s

. 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, t he 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 a n 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

- 894

Services of San Diego, Inc. v. California Employment Development Dept. (2005) 133 Cal.App.4th 1470, 14 76 .) 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.)

“ U nder both standards, the plaintiff bears the burd en 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 alway s open on appeal, even if not raised by the plaintiff” below ].) The judgment must be affirmed “i f 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 cou ld 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 establishments5

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 t he 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 o n 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 allegat ions related to the latter element. As to this issue, t he 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,6

unless t he 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); Baug hman 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 fail s 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 f ederal d istrict c ourt 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 syste m

. ” (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 Fe d.Appx. 381 .)7

In any event, o n appeal, and in an unpublished opinion , the circuit

c ourt in Feldman noted that a Department of Justice (DOJ) regulation implementing the ADA provides that “a public accommodation shall furnish appropriate auxiliary aids and s ervices 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

c ourt further indicated that n either 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 ty pe of auxiliary aid, the content that must be communicated by auxiliary aids is also conte xt

- 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 l aw to the facts before it, the c ircuit c ourt in Feldman agreed with the d istrict c ourt’s determination “t hat in the context of a professional football game at a large stadium like F edEx 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 info rmation and referee calls; (2) emergency and public8

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 p laintiffs “ need ed 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 defendant s 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 advertisement s communicated which entities support ed the Redskins, which causes the Redskins support ed , and how spectators could become involved. The communications also relayed emergency information which was necessary to the full use and enjoy ment of the experience s ince the disabled are disproportionately affected by emergencies. As for the music, even if it involved nonsensical lyrics it still add ed to the environment of “ collective excitement ” that was being provided as part of the experience

. T he music also relate d 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, unpubli shed9

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 Pow

er 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 whethe r 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 gene rally 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 foo d, 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.10

As for Martinez ’ assertion that CPK was play ing 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 a lleg ations 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 conte xt, as was the case in Feldman

. By referencing “aurally delivered” as opposed to “orally delivered”
the ADA is meant to include nonverbal sounds , a larms , 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 those11

goods an d 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 no t 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 s ervices offered by CPK. Finally, t he 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. ” Ov erall, 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. ” ( McNe il 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 otherwise12

connected with the food a nd 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