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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

YEVGENYA SHEVTSOV et al.,

Plaintiffs and Appellants,

v.

THE CHEESECAKE FACTORY 

et al.,

Defendants and Respondents.

B300116

Los Angeles County

Super. Ct. No. EC069222

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.
2

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.

3 The Shevtsovs also raise several procedural issues related to the 

demurrer, which we do not reach.
3

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.
4

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.
5

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 
6

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.
7

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 EndoSurgery, 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 
8

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 
9

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 
10

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 
11

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 [sexbased price discounts at a bar and car wash were arbitrary

discrimination under the Act].)
12

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, 
13

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 difficultto-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).
14

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.