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Date: 07-13-2018

Case Style: Tamara Baskin v. Hughes Realty, Inc.

Case Number: B278580

Judge: Manella

Court: California Court of Appeals Second Appellate District Division Four on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Jeff A. Harrison and Sara Pezeshkpour

Defendant's Attorney: Gregory F. Hurley and Michael J. Chilleen

Description: In the underlying action for disability discrimination,
appellant Tamara Baskin alleged that respondent Hughes
Realty, Inc. (Hughes) violated the California Disabled
Persons Act (DPA) (Civ. Code, §§ 54-55.3.) by providing no
designated and accessible path of travel for persons with
disabilities within the parking lot of a grocery store.1
Sppecifically, she alleged that under the DPA, the store was
obliged to designate an accessible path of travel from the
street to the store’s entrance that did not require
wheelchair-bound patrons to travel behind parked vehicles.
The trial court concluded that Baskin’s claim, as alleged in
her first amended complaint, failed on the undisputed facts.
We affirm.
RELEVANT FACTUAL AND
PROCEDURAL BACKGROUND
Baskin suffers from osteogenesis imperfecta, a bone
disease that renders her unable to walk or stand
independently, and requires her to use a wheelchair in order
to be mobile. In June 2014, she initiated the underlying
action against respondent Hughes, which operates a Ralphs
1 Further statutory citations are to the Civil Code unless
otherwise indicated.
3
grocery store near appellant’s apartment. Baskin’s original
complaint asserted claims for injunctive relief and damages
under the Unruh Civil Rights Act (Unruh Act) (Civ. Code,
§§ 51, 52) and other statutes, alleging that the store lacked a
designated and accessible path of travel for persons with
disabilities to the store’s entrance from the adjacent public
street.
In September 2015, after learning that Hughes had
created a designated path for persons with disabilities in the
store’s parking lot, Baskin filed her first amended complaint
(FAC), which contained claims for damages under the DPA
and the Unruh Act relating to the period before Hughes
established the path. The FAC alleged that on numerous
occasions, the store’s lack of a designated path deterred
Baskin from going to the store because she was obliged to
travel through its parking lot along vehicular lanes and
behind parked cars.
In October 2015, Baskin voluntarily dismissed her
claim under the Unruh Act. Prior to trial on the remaining
claim under the DPA, Hughes filed a motion in limine to
exclude all evidence that it had not provided directional
signs identifying the accessible path of travel, contending
that the FAC alleged no such claim.
At Baskin’s request, the trial of her DPA claim was
bifurcated. Following a bench trial on the issue of liability,
the trial court ruled that the DPA claim failed, concluding
that Hughes was not required to provide a marked path of
travel that did not pass behind parked cars, and that the
4
FAC pleaded no claim for inadequate signage. On August
16, 2016, judgment was entered in favor of Hughes and
against Baskin. This appeal followed.
DISCUSSION
Baskin challenges the trial court’s determinations (1)
that an accessible path of travel for persons with disabilities
from a street to a store’s entrance may pass behind parked
cars and (2) that the FAC pleaded no claim for inadequate
signage. As explained below, we conclude that she has
shown no reversible error.

A. Governing Principles
The DPA establishes protections for persons with
disabilities. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
674 (Munson).) The substantive protections pertinent here
are set forth in sections 54 and 54.1. Subdivision (a) of
section 54 imposes a broad prohibition against discrimination,
stating: “Individuals with disabilities or medical
conditions have the same right as the general public to the
full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including
hospitals, clinics, and physicians’ offices, public facilities,
and other public places.” Subdivision (a)(1) of section 54.1
further provides that “[i]ndividuals with disabilities shall be
entitled to full and equal access, as other members of the
general public, to . . . facilities, . . . including . . . places to
which the general public is invited, subject only to the
5
conditions and limitations established by law, or state or
federal regulation, and applicable alike to all persons.”
Under the remedial provisions of the DPA, disabled
persons asserting a violation of sections 54 and 54.1 may
obtain an award of damages and attorney fees. Subdivision
(a) of section 53 provides that anyone who engages in such a
violation “is liable for each offense for the actual damages
and any amount as may be determined by a jury, or the
court sitting without a jury, up to a maximum of three times
the amount of actual damages but in no case less than one
thousand dollars . . . and attorney’s fees as may be
determined by the court in addition thereto . . . .”
Sections 54 and 54.1 do not, by themselves, require
business owners to make structural modifications to their
facilities. (Californians for Disability Rights v. Mervyn’s
LLC (2008) 165 Cal.App.4th 571, 587 (Californians for
Disability Rights); Coronado v. Cobblestone Village
Community Rentals, L.P. (2008) 163 Cal.App.4th 831, 844,
(Coronado), overruled on another ground in Munson, supra,
46 Cal.4th at p. 678; Marsh v. Edwards Theatres Circuit,
Inc. (1976) 64 Cal.App.3d 881, 886, 891 (Marsh).) Any such
requirement, when applicable, arises from two separate
sources, namely, the Americans with Disabilities Act of 1990
(ADA) ( 42 U.S.C. § 12101 et seq.), and certain state
statutes.
Sections 54 and 54.1 incorporate the ADA’s protections
against discrimination. Each provision states: “A violation
of the right of an individual under the [ADA] also
6
constitutes a violation of this section.” (§§ 54, subd. (c), 54.1,
subd. (d).) Because the ADA requires the modification of
facilities to remove barriers to access whenever “‘removal is
readily achievable,’” sections 54 and 54.1 incorporate that
requirement with respect to barriers to access identified in
the ADA regulations. (Californians for Disability Rights,
supra, at p. 589, quoting Pickern v. Best Western Timber
Cove Lodge Marina Resort (E.D.Cal. 2002) 194 F.Supp.2d
1128, 1131, fn. 4.)
Sections 54 and 54.1 also enforce compliance with
disability-related state building standards when a building
is constructed or altered. In order to give meaning to the
DPA, the Legislature enacted a statutory scheme (Gov.
Code, § 4450 et seq.; Health & Saf. Code, § 19955 et seq.)
providing for the establishment of building standards
designed to ensure accessibility by the handicapped.
(Hankins v. El Torito Restaurants, Inc. (1998) 63
Cal.App.4th 510, 520-521 (Hankins); People ex rel.
Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 133
(CHE).)
Under the statutory scheme, buildings are subject to
the standards set forth in Title 24 of the California
regulatory code, known as the California Building Standards
Code (CBSC). (Californians for Disability Rights, supra, 165
Cal.App.4th at p. 585; Berkeley Center for Independent
Living v. Coyle (1996) 42 Cal.App.4th 874, 876, fn. 2; Health
& Saf. Code, § 18938.3; Gov. Code, § 4451, subd. (c)). The
standards are developed by the Division of the State
7
Architect (State Architect) and approved by the California
Building Standards Commission. (Gov. Code, § 4450, subd.
(b); Health & Saf. Code, § 19955, subd. (a); see Arnold v.
United Artists Theatre Circuit, Inc. (N.D. Cal 1994) 866
F.Supp. 433, 436; Plastic Pipe & Fittings Assn. v. California
Building Standards Com. (2004) 124 Cal.App.4th 1390, 1398
(Plastic Pipe & Fittings Assn.).) The State Architect and the
California Building Standards Commission are obliged to
promulgate the CBSC standards in compliance with the
Administrative Procedure Act (APA) (Gov. Code, § 11340 et
seq.), after consultation with specified parties. (Gov. Code,
§ 4450, subd. (b); Health & Saf. Code, § 18935, subd. (a).)
Generally, the standards are revised and republished every
three years. (Health & Saf. Code, § 18942, subd. (a).)
By statute, the CBSC standards relating to access for
disabled persons may not be less stringent than the
corresponding ADA standards. (Gov. Code, § 4450, subd.
(c).) Although noncompliance with the CBSC standards is
actionable under the DPA, the CBSC generally requires
compliance with a standard enacted after a building has
constructed only when the building is altered. (Californians
for Disability Rights, supra, 165 Cal.App.4th at p. 586.)
B. Underlying Proceedings
1. FAC
The FAC alleged that when Baskin visited the Ralphs
store by bus or wheeling herself, she encountered significant
barriers. According to the FAC, because the store lacked a
8
“designated, accessible path of travel” from the street to the
store, gaining access to the store was difficult and dangerous
for her. Baskin was required “to wheel herself up the
vehicular drive aisle, among moving cars that [were] trying
to get into and out of the busy parking lot, and then to wheel
herself behind parked cars to the store entrance.” The FAC
alleged that between April 2013 and March 2015, on more
than twenty occasions, the lack of a designated and
accessible path deterred Baskin from patronizing the store.
2. Pretrial Proceedings
Trial on Baskin’s DPA claim was set for June 13, 2016.
On May 19, 2016, Baskin sought bifurcation of trial with
respect to the issues of liability and damages. She requested
that the court resolve certain issues of law relating to
liability prior to a jury trial on factual issues, stating: “The
parties do not dispute the vast majority of material facts.
Instead, the dispute centers on whether [Hughes] violated
applicable access standards at the times of [Baskin’s] visits.
[Baskin] contends that [Hughes] violated disabled access
standards by (1) failing to provide a properly signed,
wheelchair-accessible route from the public right of way to
the Ralphs entrance[,] and (2) requiring wheelchair users to
travel behind parked cars to the Ralphs entrance. As to the
first issue, [Hughes] concedes that no signage was provided.
However, it argues that it did not violate disabled access
standards because, at the times of [Baskin’s] visits, it was
not required to provide signage indicating the existence and
9
location of the wheelchair-accessible routes. As to the
second issue, [Hughes] argues that the applicable standards
do not prohibit wheelchair users from travelling behind
parked cars to reach a facility entrance.”
On the same date, Hughes filed a motion in limine to
exclude all evidence relating to certain barriers to access
Baskin intended to establish at trial, including the
purported lack of signs designating the path of travel for
persons with disabilities. Hughes contended it was not
obliged to rebut the existence of the barriers because the
FAC failed to allege them with sufficient specificity. Hughes
argued, inter alia, that the FAC did not allege that the path
of travel Hughes offered -- that is, the path that passed
behind parked cars -- must have directional signs identifying
it as the accessible route.
At a hearing on June 13, 2016, the trial court granted
Baskin’s request to bifurcate trial. The court ruled that it
would resolve the issues of liability on the basis of trial
briefs and closing arguments presented at a hearing. For
purposes of the bench trial on liability, the parties agreed
that during the pertinent period, (1) Baskin was disabled,
(2) Hughes operated the store, (3) the path of travel from the
street to the store offered to persons with disabilities passed
behind parking spaces, (4) there was no marked accessible
path, and (5) there was no directional signage. The parties
disagreed regarding the version of the CBSC standards
applicable to the store during the period Baskin was
allegedly deterred from patronizing it. The court directed
10
the parties to submit trial briefs addressing the pertinent
issues, including whether the FAC pleaded a claim for
inadequate signage, and whether the applicable CBSC
standards were those promulgated in 2001, in view of
alterations to the store in 2007.
3. Trial on Liability
i. Baskin’s Trial Brief
Baskin’s trial brief contended the 2007 alterations to
the store required application of the 2001 CBSC standards
relating to access for persons with disabilities.
2 Relying on
those standards, she argued that a permissible access route
could not pass behind parked cars, placing special emphasis
on the standards for parking spaces for the disabled, which
required that such spaces be located as close as possible to
2 Under the 2001 CSBC standards, section 1114B.1.2
provided: “At least one accessible route within the boundary of
the site shall be provided from . . . public streets or sidewalks, to
the accessible building entrance they serve. The accessible route
shall, to the maximum extent feasible, coincide with the route for
the general public.” (Former Cal. Code Regs., tit. 24, §
1114B.1.2.)
The 2001 version of section 1129B.3, which addressed
“[a]ccessible” parking spaces, provided in pertinent part that such
spaces “shall be located as near as practical to a primary entrance
and shall be sized as follows: [¶] . . . [¶] 3. Arrangement of
parking space. . . . [T]he space shall be so located that persons
with disabilities are not compelled to wheel or walk behind
parked cars other than their own.” (Former Cal. Code Regs., tit.
24, § 1129B.3.)
11
an accessible entrance, and positioned so that “persons with
disabilities were not compelled to wheel or walk behind
parked cars other than their own.” (Former Cal. Code Regs.,
tit. 24, §§ 1114B.1.2, 1129B.3.3.) Baskin further maintained
that the 2001 CBSC standards required signage identifying
the accessible path.
3
Baskin opposed Hughes’s contention that the FAC
pleaded no claim for inadequate signage. Noting that the
2001 CBSC standards characterized an “accessib[le]”path as
one meeting those standards, Baskin argued that because
the FAC asserted the absence of a “designated, accessible
path of travel,” it necessarily alleged that Hughes had not
complied with the 2001 CBSC signage standards. (Italics
added.)
ii. Hughes’s Trial Brief
Hughes’ trial brief contended that notwithstanding the
2007 alteration to the store, Baskin’s DPA claim was
properly evaluated in light of the 2013 CBSC standards, as
the occasions on which she was allegedly deterred from
3 Baskin relied on the 2001 version of section 1127B.3, which
stated: “At every primary public entrance and at every major
junction where the accessible route of travel diverges from the
regular circulation path along or leading to an accessible route of
travel, . . . there shall be a sign displaying the International
Symbol of Accessibility. Signs shall indicate the direction to
accessible building entrances and facilities . . . .” (Former Cal.
Code Regs., tit. 24, § 1127B.3).
12
shopping at the store occurred between April 2013 and
March 2015. Hughes argued that “compliance with existing
law of the time of [Baskin’s] visits provides a safe harbor
regardless of the alteration history of the subject
property. . . . It goes without saying that there cannot
possibly be a violation when the subject property complied
with existing law at the time of [Baskin’s] visits.” (Italics
omitted.) Hughes also pointed to former section 18944.15 of
the Health and Safety Code, which provided that for
purposes of specified DPA claims alleging a violation of
CBSC accessibility standards, compliance with the 2013
CBSC standards was “an alternative method of compliance.”
Hughes contended the 2013 CBSC standards
permitted accessible paths to include vehicular routes and
routes passing behind parked cars, arguing that the
standards “plainly contemplate[d] that disabled individuals
will use the same circulation paths that non-disabled
individuals use . . . .” Hughes further argued that the
corresponding ADA standards, as well as the 2010 and 2001
CBSC standards, permitted accessible paths to pass through
vehicular lanes in store parking lots.
Hughes maintained that the FAC contained no claim
for inadequate signage, relying on the principle that
statutory claims must be alleged with specificity.
Additionally, Hughes contended any such claim failed,
arguing that the 2013 CBSC standards required signs only
when an accessible route offered to persons with disabilities
did not coincide with the route used by the general public.
13
iii. Closing Arguments
At the hearing on the liability issues, in response to
the trial court’s request for clarification of the DPA claim,
Baskin’s counsel stated that during the pertinent period, the
store lacked a route for wheelchair users through the
parking lot from the street to the store’s entrance (1) that
passed behind no parked cars and (2) was designated by
suitable signs.4 Counsel did not contest Hughes’s contention
that the ADA mandated no such route, but argued that the
2001 CBSC standards required safe access routes permitting
wheelchair users to move from a facility’s “entry points” --
namely, bus stops, sidewalks, and parking spaces -- to its
entrance without passing behind parked cars. Counsel
further argued that the FAC alleged the absence of required
signage.
Hughes’s counsel contended that neither the 2013
CBSC standards nor their predecessors -- namely, the 2001
and 2010 CBSC standards -- required Hughes to provide a
path of travel that passed behind no parked cars and was
designated by signs. Counsel also argued that the FAC
failed to plead a claim for inadequate signage.
4 According to Baskin’s counsel, she did not contend that an
adequate route could not make use of the parking lot’s vehicular
lanes.
14
iv. Statement of Decision
In a detailed statement of decision, the court rejected
Baskin’s contention that the 2001 CBSC standards applied
to her DPA claim. Applying the 2013 CBSC standards, the
court determined that Hughes was not required to establish
a path of travel from the street to the store that did not pass
behind parked cars. The court further determined that the
FAC pleaded no claim for inadequate signage.
C. Ruling that Accessible Path May Pass Behind
Parked Cars
We begin with Baskin’s challenges to the trial court’s
ruling that the CBSC standards did not require Hughes to
provide a path of travel that did not pass behind parked
cars. Because that ruling constitutes a determination of law
on undisputed facts, we review it de novo. (Limited Stores,
Inc. v. Franchise Tax Bd. (2007) 152 Cal.App.4th 1491, 1495;
see Motion Picture Studio Teachers & Welfare Workers v.
Millan (1996) 51 Cal.App.4th 1190, 1196 [“The
interpretation of a regulation, like the interpretation of a
statute, presents a question of law”].)5 Our inquiry into the
5 Generally, in construing a regulation, we apply the rules of
statutory interpretation. (Brewer v. Patel (1993) 20 Cal.App.4th
1017, 1021.) “The fundamental rule of interpretation is to
ascertain the intent of the agency issuing the regulation so as to
effectuate the purpose of the law. [Citation.] To determine that
intent, we turn first to the words of the regulation, giving effect to
the usual meaning of the language used, while avoiding an
(Fn. is continued on the next page.)
15
ruling is nonetheless limited to contentions supported by
argument in Baskin’s briefs. (OCM Principal Opportunities
Fund, L.P. v. CIBC World Markets Corp. (2007) 157
Cal.App.4th 835, 844, fn. 3; 9 Witkin, Cal. Procedure (5th ed.
2008) Appeal, § 701, pp. 769-771.)6
1. Determination that the 2013 CBSC Standards
Govern the DPA Claim
Baskin contends the trial court erred in evaluating her
DPA claim solely in light of the 2013 CBSC standards,
arguing that the FAC’s allegations also required application

interpretation which renders any language mere surplusage.
[Citation.] When statutory language is clear, we must apply that
language without indulging in interpretation. [Citation.]” (Ibid.)
6 Although Baskin agrees that our review is de novo, her
briefs suggest the trial court improperly limited the issues and
evidence submitted at the trial on liability. However, an
appellant forfeits the right to attack error by expressly or
impliedly agreeing at trial to the procedure objected to on appeal.
(Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d
158, 166.) Here, in seeking the bifurcation of trial, Baskin
identified the issues relating to the routes Hughes offered as
questions of law. Aside from opposing Hughes’s contention that
the FAC failed to plead a signage-based claim, Baskin challenged
no evidentiary limitation other than the exclusion of testimony
from her expert, which the court barred on the ground that it
concerned only issues of law. Because Baskin does not discuss
that ruling on appeal and raised no relevant procedural objections
during the trial, she has forfeited her contentions of error, with
the exception of her challenge to the ruling that the FAC pleaded
no signage-based claim.
16
of the 2010 CBSC standards. The FAC alleged that on
specific dates between April 2013 and March 2015, the lack
of an accessible path deterred her from shopping at the
store. Although the 2013 CBSC standards were published
in 2013, they became effective on January 1, 2014. (See
Health & Saf. Code, § 18398, subd. (b).) Baskin’s opening
brief argues that the occasions on which she was allegedly
deterred from patronizing the store in 2013 must be
evaluated under the prior standards, that is, the 2010 CBSC
standards. As explained below, Baskin’s contention fails, as
her briefs on appeal, viewed collectively, identify no error in
the court’s conclusion that the 2013 CBSC standards applied
to all the incidents identified in the FAC.
At the outset, we observe that Baskin has abandoned
the contention she presented to the trial court, namely, that
the DPA claim must be evaluated under the 2001 CBSC
standards, as her briefs do not discuss or mention that
contention. For that reason, our focus is on whether any of
the incidents alleged in the FAC are subject to the 2010
CBSC standards.
In applying the 2013 CBSC standards to all the
incidents alleged in the FAC, the trial court relied on two
factors, namely, considerations of due process, which the
court concluded “permit[ted] a finding of liability based only
on the law in effect when the alleged offending act
occur[red],” and former section 18944.15 of the Health and
Safety Code. Subdivision (a) of the latter statute stated that
“for the purpose of any claim” under the DPA asserting a
17
violation of a CBSC accessibility standard, “[u]pon the
publication date of the 2013 [CBSC standards] . . . ,
compliance with the building standards for disabled
accessibility as provided in [the 2013 CBSC standards] shall
be authorized as an alternative method of compliance.” The
statute, by its own terms, specified time limits for the
“alternative method of compliance” set forth in subdivision
(a), including that the statute was operative only until
January 1, 2015.7
The trial court thus appears to have concluded that an
incident alleged in the FAC was properly assessed under the
7 Former section 18944.15 of the Health and Safety Code
provided: “(a) Upon the publication date of the 2013 California
Building Standards Code as adopted by the commission as part of
the 2012 triennial code adoption cycle, for the purpose of any
claim brought under Section 51, 54, 54.1, or 55 of the Civil Code
based in whole, or in part, on an alleged violation of a
construction-related accessibility standard, compliance with the
building standards for disabled accessibility as provided in
Chapter 11B of Part 2 of Title 24 of the 2013 California Building
Standards Code shall be authorized as an alternative method of
compliance.
(b) Subdivision (a) shall become inoperative when the provisions
of the 2013 California Building Standards Code become effective
pursuant to Section 18938.
(c) This section shall become operative on January 1, 2013.
(d) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2015, deletes or extends that
date.” (Stats. 2012, ch. 383, §23.)
18
building standards in effect on the date of the incident,
unless former section 18944.15 of the Health and Safety
Code permitted the application of the 2013 CBSC standards.
Applying that rationale, the court impliedly determined (1)
that the alleged incidents that occurred after the effective
date of the 2013 CBSC standards -- that is, January 1, 2014
-- were directly subject to those standards, and (2) that the
remaining alleged incidents -- which occurred in 2013 --
were subject to the 2013 CBSC standards, by virtue of
former section 18944.15 of the Health and Safety Code.
Baskin has shown no error in those determinations.
Her opening brief accepts item (1), and otherwise contains
no discussion of former section 18944.15 of the Health and
Safety Code. Although her reply brief attacks the court’s
reliance on that statute, she contends only that the statute
did not apply to incidents that allegedly occurred in 2015
because the statute was then inoperative. However, the
statute is irrelevant to whether those incidents are subject
to the 2013 CBSC standards because -- as Baskin’s opening
brief acknowledges -- they occurred after January 1, 2014,
the effective date of the 2013 CBSC standards. Accordingly,
Baskin has failed to show that the trial court erred in
evaluating her DPA claim exclusively under the 2013 CBSC
standards.
19
2. Determination that Paths May Pass Behind
Parked Cars
Baskin contends the trial court erred in determining
that under the 2013 CBSC standards, Hughes was not
required to provide an accessible route that did not pass
behind parked cars for persons using wheelchairs. As
explained below, we disagree.
Hughes relied on section 11B-206.2.1 (2013 section
11B-206.2.1), which provided that “[a]t least one accessible
route shall be provided within the site from . . . public
streets and sidewalks,” and section 11B-206.3 (2013 section
11B-206.3), which stated that accessible routes “shall
coincide with or be located in the same area as general
circulation paths.”8 (Cal. Code Regs., tit. 24, §§ 11B-206.2.1,
8 2013 CBSC 11B-206.2.1 states: “Site arrival points. At
least one accessible route shall be provided within the site from
accessible parking spaces and accessible passenger loading zones;
public streets and sidewalks; and public transportation stops to
the accessible building or facility entrance they serve. Where
more than one route is provided, all routes must be accessible.
Exceptions:
1. Reserved
2. An accessible route shall not be required between site
arrival points and the building or facility entrance if the only
means of access between them is a vehicular way not providing
pedestrian access.
3. General circulation paths shall be permitted when
located in close proximity to an accessible route.” (Italics
omitted.)
(Fn. is continued on the next page.)
20
11B-206.3.) At the hearing on liability, the parties
submitted maps and overhead photos of the store’s parking
lot, which showed that between rows of painted parking
places, there were vehicular lanes leading from the adjacent
streets to the store’s entrances. We agree with the trial
court that nothing in the 2013 CBSC regulations precluded
those vehicular lanes from serving as accessible routes
merely because they passed rows of parking places.9
We find further support for our conclusion from the
related ADA standards. Because the State Architect and
the California Building Standards Commission are required
by statute to promulgate CBSC standards not less stringent

2013 CBSC section 11B-206.3 states: “Location. Accessible
routes shall coincide with or be located in the same area as
general circulation paths. Where circulation paths are interior,
required accessible routes shall also be interior. An accessible
route shall not pass through kitchens, storage rooms, restrooms,
closets or other spaces used for similar purposes, except as
permitted by Chapter 10.” (Italics omitted.)
9 Baskin suggests the trial court erroneously found that
Hughes provided her with a safe route, arguing that no evidence
was submitted regarding the safety of any route across the
parking lot. However, the statement of decision contains no such
finding. Baskin’s contention relies on the trial court’s
characterization of Hughes’s position at trial, namely, that it had
complied “with both the federal ADA requirements and state law,
which generally require[] that [Baskin] have the same safe path
of travel as for a non-disabled person.” Although the court agreed
that Hughes had complied with the 2013 CBSC standards, it
rendered no express finding regarding safety.
21
than the corresponding ADA standards, the latter offer a
baseline for evaluating the intent underlying the former.
Hughes directed the trial court’s attention to pertinent ADA
regulations (see 28 C.F.R. (2012) § 36.104, appendix to
§ 36.304(d)), including the 2010 ADA Standards for Titles II
and III Facilities (2010 ADA Standards) as well as the 1991
Accessibility Guidelines for Buildings and Facilities (1991
ADA Standards). Hughes also pointed to the guidance notes
accompanying the 2010 standards prepared by the United
States Department of Justice (Justice Department).
Because the Justice Department is authorized to enforce the
ADA, its guidance notes are entitled to deference by courts
seeking to construe the ADA. (Wilson v. Murillo (2008) 163
Cal.App.4th 1124, 1138; see Hankins, supra, 63 Cal.App.4th
at pp. 523-524.)
The ADA standards permit accessible routes through
parking lots to use vehicular lanes, and contain no express
restriction barring routes from passing behind parked cars.
Sections 206.2.1 and 206.3 of the 2010 ADA Standards,
which are materially identical to sections 11B-206.2.1 and
11B-206.3 of the 2013 CBSC regulations, have been
interpreted by the Justice Department to permit access
routes in the area of the “general circulation path” that
involve vehicular lanes.10 The guidance notes accompanying
10 Section 206.2.1 of the 2010 ADA Standards provides: “Site
Arrival Points. At least one accessible route shall be provided
within the site from accessible parking spaces and accessible
(Fn. is continued on the next page.)
22
the 2010 ADA Standards state that an access route “must be
in the same area as the general circulation path” and “may
include vehicular ways.” Similarly, the 1991 ADA
Standards state that “[t]he accessible route shall, to the
maximum extent feasible, coincide with the route for the
general public,” and may include “parking access aisles” and
“crosswalks at vehicular ways.”11 Although our research

passenger loading zones; public streets and sidewalks; and public
transportation stops to the accessible building or facility entrance
they serve.
EXCEPTIONS:
1. Where exceptions for alterations to qualified historic
buildings or facilities are permitted by 202.5, no more than one
accessible route from a site arrival point to an accessible entrance
shall be required.
2. An accessible route shall not be required between site
arrival points and the building or facility entrance if the only
means of access between them is a vehicular way not providing
pedestrian access.” (Italics omitted.)
Section 206.3 of the 2010 ADA Standards provides:
“Location. Accessible routes shall coincide with or be located in
the same area as general circulation paths. Where circulation
paths are interior, required accessible routes shall also be
interior.”
11 Section 3.5 of the 1991 ADA Standards states in pertinent
part: “Exterior accessible routes may include parking access
aisles, curb ramps, crosswalks at vehicular ways, walks, ramps,
and lifts.”
Section 4.3.2(1) of the 1991 ADA Standards states: “At
least one accessible route within the boundary of the site shall be
provided from public transportation stops, accessible parking, and
(Fn. is continued on the next page.)
23
has disclosed no judicial decision expressly addressing
whether the ADA permits a route passing behind parked
cars, several courts have construed the ADA standards to
permit routes through parking lots that make use of
vehicular lanes (Wilson v. Pier 1 Imports (US), Inc. (E.D.Cal
2006) 439 F.Supp.2d 1054, 1071 [ADA imposed no
requirement for separate access route from public sidewalks
to store not using store’s parking lot]; White v. Divine
Investments, Inc. (E.D.Cal. 2005, No. CIV. S-04-0206
FCD/DAD) 2005 U.S. Dist. LEXIS 23018, *26 & fn. 12 [ADA
imposed no requirement for separate path from street to
store not making use of the “vehicle ways”]; Barnes-Boers v.
TRU 2005 REI, LLC (E.D. Cal. 2014, No. 2:13-CV-1827-
WBS-CMK) 2014 U.S. Dist. LEXIS 50670, *8-*12 [ADA
imposed no requirement for separate path through parking
lot from street to store not shared by vehicles].)
In our view, because the 2013 CBSC standards closely
track the 2010 ADA standards, the former cannot
reasonably be understood to bar routes making use of
vehicular lanes between rows of parking spaces. Aside from
requiring that the CBSC standards be no less stringent than
the ADA standards, the statutory scheme governing the
CBSC obliges the State Architect and the California

accessible passenger loading zones, and public streets or
sidewalks, to the accessible building entrance they serve. The
accessible route shall, to the maximum extent feasible, coincide
with the route for the general public.”
24
Building Standards Commission to promulgate the CBSC
standards only after consulting with specified parties,
including at least one private organization representing
persons with disabilities. (Gov. Code, § 4450, subd. (b);
Health & Saf. Code, § 18935, subd. (a).) In view of these
procedural requirements, we conclude that had the State
Architect and the California Building Standards Commission
intended to bar routes making use of vehicular lanes
between rows of parking spaces, they would not have
propounded regulations materially identical to the ADA
standards.
For the first time on appeal, Baskin contends that
under section 11B-502.7.1 of the 2013 CBSC standards,
accessible routes for wheelchair users may not pass behind
parked cars. That provision required that parking spaces for
persons with disabilities and the “access aisles” serving
those spaces -- that is, the “pedestrian spaces” immediately
adjacent to such spaces -- be designed “so that persons using
them are not required to travel behind parking spaces other
than to pass behind the parking space in which they
parked.” (Cal. Code Regs., tit. 24, §§ 11B-202, 11B-502.7.1,
italics added.) The provision resembles the 2001 CBSC
standards upon which Baskin relied before the trial court,
which imposed a similar requirement. The court rejected
Baskin’s contention, concluding that the requirement in
question attached solely to parking places for the disabled.
We reach the same conclusion under the 2013 CBSC
standards. In view of the language italicized above, the
25
requirement applies solely to the parking spaces delegated
to persons with disabilities. Had the State Architect and the
California Building Standards Commission intended that
requirement to include all accessible routes, they could have
said so in simple express terms. (See Goebel v. City of Santa
Barbara (2001) 92 Cal.App.4th 549, 559.)
Relying primarily on CHE, supra, 150 Cal.App.3d 123,
Baskin also contends that because the CBSC standards and
the related statutes -- including the DPA -- promote equality
of access for the disabled, they incorporate a particular
mandate for safety that bars accessible routes from
traveling behind parked cars. She argues that under the
statutes and regulations, equality of access involves an
“[e]quality of [s]afety” principle, which necessarily prohibits
a route for wheelchair users that passes behind parked cars,
in view of the special hazards such a route poses for them.
As explained below, Baskin has failed to demonstrate that
the specific prohibition she advocates is required by the
statutes in question or the CBSC standards.
Our focus is on the CBSC standards and the statutory
scheme governing their promulgation, as it is well
established that the DPA, by itself, “does not impose an
affirmative duty to eliminate access barriers except as
required by specific building standards,” notwithstanding
“the DPA’s general guarantee of ‘full and equal access.’”
(Californians for Disability Rights, supra, 165 Cal.App.4th
at p. 587; Coronado, supra, 163 Cal.App.4th at p. 845 [“[I]in
order to state a cause of action for violation of [the DPA]
26
based on a structural or architectural barrier, the existence
of the barrier must violate a separate provision of law
relating to structural access standards”]; Marsh, supra, 64
Cal.App.3d at p. 888 [DPA enforces affirmative duties
imposed under other provisions specifying building
requirements].) As noted above (see pt. A. of the Discussion,
ante), the statutory scheme governing the CBSC standards
requires the State Architect and the California Building
Standards Commission to promulgate the standards upon
consultation with specified parties and in compliance with
the APA, which provides for input from the public.
12
Under the scheme, the approval of the CBSC
standards by the California Building Standards Commission
is “a quasi-legislative act of administrative rulemaking.”
(Plastic Pipe & Fittings Assn., supra, 124 Cal.App.4th at
p. 1406.) As our Supreme Court has explained, “[b]ecause
12 “The APA is intended to advance ‘meaningful public
participation in the adoption of administrative regulations by
state agencies’ and create ‘an administrative record assuring
effective judicial review.’ [Citation.] In order to carry out these
dual objectives, the APA (1) establishes ‘basic minimum
procedural requirements for the adoption, amendment or repeal
of administrative regulations’ [citation] which give ‘interested
parties an opportunity to present statements and arguments at
the time and place specified in the notice and calls upon the
agency to consider all relevant matter presented to it,’ and (2)
‘provides that any interested person may obtain a judicial
declaration as to the validity of any regulation by bringing an
action for declaratory relief in the superior court.’ [Citation.]”
(Voss v. Superior Court (1996) 46 Cal.App.4th 900, 908-909.)
27
agencies granted such substantive rulemaking power are
truly ‘making law,’ their quasi-legislative rules have the
dignity of statutes. When a court assesses the validity of
such rules, the scope of its review is narrow. If satisfied that
the rule in question lay within the lawmaking authority
delegated by the Legislature, and that it is reasonably
necessary to implement the purpose of the statute, judicial
review is at an end.” (Yamaha Corp. of America v. State Bd.
of Equalization (1998) 19 Cal.4th 1, 10-11 (Yamaha Corp.).)
As the agency necessarily exercises “a considerable degree of
policy-making judgment and discretion,” an appellate court
does not “‘superimpose its own policy judgment . . . .’”
(Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d
690, 702.) Accordingly, although we independently interpret
the 2013 CBSC standards, our review of the adequacy of
those standards to achieve the statutory goals is limited.
(Yamaha Corp., supra, at pp. 7, 10-11; 9 Witkin, Cal.
Procedure (5th ed. 2008) Administrative Proceedings,
§§ 133, 138, pp. 1261-1263, 1267-1270.)
Here, Baskin contends that the 2013 CBSC standards,
properly interpreted, bar accessible routes for wheelchair
users from passing behind parked cars. As explained above,
those standards impose no such prohibition. Because
Baskin does not challenge the validity of the 2013 CBSC
standards, insofar as they constitute acts of quasi-legislative
rulemaking, she has otherwise failed to show that the
statutory scheme mandates the prohibition she advocates.
28
Baskin’s reliance upon CHE is misplaced. CHE arose
under the statutory scheme as originally enacted, which
directed the State Architect to develop suitable building
standards, and in the interim, required builders to adhere to
certain standards set forth by the American Standards
Association (ASA standards). (CHE, supra, 150 Cal.App.3d
at p. 131.) Those standards obliged buildings to have “‘at
least one primary entrance . . . useable by individuals in
wheelchairs.’” (Ibid., italics omitted.) While the ASA
standards were in force, a newly-built restaurant offered
wheelchair users access to its dining room only, via a special
route passing through the restaurant’s kitchen and scullery
area. (CHE, supra, at pp. 127-129.) When a state agency
sought to compel the restaurant to satisfy the ASA
standards, the trial court granted summary judgment in the
agency’s favor. (CHE, supra, at pp. 127-129.)
On appeal, the restaurant contended the access it
offered constituted an adequate “primary entrance.” (CHE,
supra, 150 Cal.App.3d at p. 131.) In rejecting that
contention, the appellate court construed the ASA standards
in light of the Legislature’s intent to achieve “‘full and equal
access,’” concluding that “the statutory and regulatory law,
read as a whole, [was] designed to guarantee safe access for
the physically disabled while permitting them to function as
equals to the maximum extent feasible within every aspect
of society.” (CHE, supra, at pp. 132,134.) The court stated
that “equality, at minimum, requires access free from
. . . potential hazards which would endanger even the most
29
cautious physically handicapped,” and that the statutory
scheme is designed to lessen burdens on persons with
disabilities “by guaranteeing equal and full access to public
buildings, facilities, and accommodations, without
jeopardizing their safety.” (Id. at pp. 134-135.)
CHE provides no assistance to Baskin. That case
focused on the interpretation of a specific term within an
ASA standard -- namely, “primary entrance” -- which the
appellate court concluded was reasonably construed to
exclude the entrance provided by the restaurant. As no
regulatory entity had promulgated the ASA standard, the
court looked to the Legislature’s intent in enacting the
statutory scheme. However, Baskin has identified no term
or phrase within the pertinent 2013 CBSC standards which,
reasonably construed, expresses the prohibition she
advocates, and no evidence that it was the intent of the
California Building Standards Commission to impose that
prohibition. Because the 2013 CBCS standards do not
contain the prohibition critical to Baskin’s DPA claim -- that
routes for wheelchair users may not pass behind parked cars
-- her claim fails.
Furthermore, although we agree with CHE that the
Legislature’s intent was to devise a system aimed at
achieving full and equal access for persons with disabilities
with due attention to their safety, we see nothing in CHE
supporting the existence of the “[e]quality of [s]afety”
principle upon which Baskin relies. CHE affirms that
adequate safety is a key factor in equality of access for
30
persons with disabilities, but does not discuss or mention
any such principle.13
In our view, any such “equality of safety” principle
would render the statutory scheme governing the CBSC
standards unworkable. Because some disabilities may
create ineradicable risks of injury, it would be difficult or
impossible to devise building standards that equalized the
risk of injury for everyone. Furthermore, because
disabilities may create different risks of injury, it would be
difficult or impossible to devise feasible standards that
13 The same is true of Barrilleaux v. Mendicino County
(N.D.Cal. 2014) 61 F.Supp.3d 906 (Barrilleaux), which Baskin
also contends invokes the “[e]quality of [s]afety” principle. There,
the plaintiff asserted a claim under the ADA and other federal
laws, alleging that she walked with difficulty due to knee surgery,
that she was denied equal access to court facilities because she
was required to make an appearance in a fourth floor courtroom
in a courthouse lacking an elevator, and that she suffered injury
when she fell in a courthouse stairwell after the appearance.
(Barrilleaux, supra, at pp. 915-916.) The trial court concluded
that these allegations pleaded a claim under the ADA, stating:
“That [the p]laintiff was able to make her way to her court
appearance, and only subsequently fell on her way down from the
courtroom, does not mean that the court facilities were fully and
equally available to her. [The p]laintiff’s inability to exit the
courtroom safely and make her way to the Clerk’s office is at least
a partial barrier to her access to the court facilities.”
(Barrilleaux, supra, at p. 916.) Although Barrilleaux reflects that
adequate safety is a determinant of equality of access, it does not
predicate equality of access on equality of safety.
31
eliminated the specific heightened risk attending each such
disability.
Baskin maintains that the trial court erred in its
application of the 2013 CBSC standards, arguing that the
record discloses a material factual dispute that must be
resolved in her favor. The crux of her contention is that the
stipulated facts and evidence at trial conclusively
established that the routes Hughes actually offered to
wheelchair users did not comply with the 2013 CBSC
standards. As explained below, we disagree.
Although Baskin did not assert the existence of the
purported factual dispute at trial, she argues that it was
identified in her trial brief, which stated that “[a]t [the]
Ralphs [store], like any other shopping center, pedestrians
could choose to reach the entrance by walking between the
cars parked in the parking lot. . . . Wheelchair users do not
have this option because . . . a wheelchair cannot fit between
two parked cars.” On appeal, she contends this presents a
factual issue whether the routes Hughes offered to
wheelchair users -- which made use of the vehicle lanes --
coincided with, or were located in the same area as the
“‘general circulation paths,’” for purposes of 2013 section
11B-206.3. She further argues that although the stipulated
facts did not resolve that issue, the maps and photos she
submitted at trial conclusively showed that the routes
32
Hughes offered to wheelchair users diverged from those
“available to ambulatory individuals.”14
In view of the evidence presented at trial, the issue
Baskin identifies is one of law, not fact. Generally, the
application of statutes and regulations to stipulated and
undisputed facts presents a question of law. (Chen v.
Franchise Tax Bd. (1998) 75 Cal.App.4th 1110, 1114;
Davenport v. Unemployment Ins. Appeal Bd. (1994) 24
Cal.App.4th 1695, 1697.) At the trial on liability, there was
no dispute regarding the layout of the store’s parking lot, as
the parties relied on essentially similar maps and overhead
photos. The maps and photos established that the store’s
parking lot was arranged in an unexceptional manner: rows
of painted parking spaces within the lot defined vehicular
lanes leading from the public streets to the store. That
evidence unequivocally showed that the route from each
14 In a related contention, Baskin maintains that the evidence
presented to the trial court was insufficient to resolve whether
the routes offered to Baskin complied with other potentially
applicable 2013 CBSC standards. Because Baskin did not raise
those standards before the trial court, she has forfeited her
contention. As explained in Richmond v. Dart Industries, Inc.
(1987) 196 Cal.App.3d 869, 879, “an appellate court may allow an
appellant to assert a new theory of the case on appeal where the
facts were clearly put at issue at trial and are undisputed on
appeal. [Citation.] However, ‘if the new theory contemplates a
factual situation the consequences of which are open to
controversy and were not put in issue or presented at trial the
opposing party should not be required to defend against it on
appeal. [Citations.]’ [Citation.]” That is the case here.
33
street to the store offered to wheelchair users -- along the
vehicular lanes -- fell directly within the circulation path
offered to the general public. Accordingly, the trial court did
not err in concluding that Hughes offered “[a]t least one
accessible route” that was “located in the same area as
general circulation paths.” (Cal. Code Regs., tit. 24, § 11B-
206.3.) In sum, under the 2013 CBSC standards, Hughes
was not required to provide an accessible route that did not
pass behind parked cars for persons using wheelchairs.
D. Ruling Regarding Signage-Based Claim
Baskin contends the trial court erred in rejecting her
DPA claim insofar as it was predicated on inadequate
signage. Prior to trial, Hughes filed a motion in limine to
exclude all evidence relating to inadequate signage on the
ground that the FAC pleaded no such claim. At the trial on
liability, the court determined that the FAC failed to plead a
signage-based claim. Baskin challenges that ruling, arguing
that the court applied excessively stringent pleading
requirements. As explained below, we discern no error in
the trial court’s ruling.
1. Governing Principles
“‘An objection to the introduction of any evidence on
the ground that a complaint fails to state a cause of action is
in the nature of a general demurrer to the complaint or a
motion by a defendant for judgment on the pleadings.’
[Citation.]” (Clemens v. American Warranty Corp. (1987)
34
193 Cal.App.3d 444, 451, quoting Miller v. McLaglen (1947)
82 Cal.App.2d 219, 223.) Such motions are reviewed de novo
under the standards applicable to judgments following the
sustaining of a demurrer. (See Ott v. Alfa-Laval Agri, Inc.
(1995) 31 Cal.App.4th 1439, 1448.) Thus, an objection to all
the evidence is properly sustained when even if the
plaintiff’s allegations were proved, they would not establish
a cause of action. (Clemens, supra, at p. 451.)
Generally, “[w]he[n] a party relies for recovery upon a
purely statutory liability it is indispensable that he plead
facts demonstrating his right to recover under the statute.
The complaint must plead every fact which is essential to
the cause of action under the statute.” (Green v. GrimesStassforth
S. Co. (1940) 39 Cal.App.2d 52, 56 (Green).)
In addition to contending the FAC pleaded no signagerelated
claim, Hughes’s trial brief asserted that any such
claim failed on its merits, arguing that under the 2013
CBSC standards, directional signs were not required for the
route provided to wheelchair users at the store. Hughes
relied on section 11B-216.6 (2013 section 11B-216.6) which
states: “Directional signs . . . indicating the accessible route
to the nearest accessible entrance shall be provided at
junctions when the accessible route diverges from the
regular circulation path.” (Former Cal. Code Regs, tit. 24,
§ 11B-216.6.)15 Hughes also pointed to the related State
15 2013 section 11B-216.6 provides: “In existing buildings and
facilities where not all entrances comply with [accessibility
(Fn. is continued on the next page.)
35
Architect advisory note, which states: “Directional signs are
needed where the accessible route diverges from the route
for the general public and should be located at decision
points . . . . Directional signs are not needed where paths
are equal and/or readily apparent. . . . [¶] . . . Too many
signs can be confusing to everyone utilizing the site.”
2. Analysis
Baskin has offered two distinct theories in support of a
signage-based claim. Under the first theory, Baskin asserts
that Hughes failed to provide a suitably signed path that did
not require her to pass behind parked cars; under the second
theory, Baskin asserts that Hughes failed to provide signs
showing the actual route or routes from the street to the
store. We discuss each theory separately.
a. Lack of Signage Identifying Path Not
Passing Behind Parked Cars
Baskin’s first theory is directly tied to certain
allegations in the FAC that Baskin asserted at trial, namely,

standards], entrances complying with [those standards] shall be
identified by the International Symbol of Accessibility . . .
Directional signs . . . that indicate the location of the nearest
entrance complying with [accessibility standards] shall be
provided at entrances that do not comply with [accessibility
standards]. Directional signs . . . indicating the accessible route
to the nearest accessible entrance shall be provided at junctions
when the accessible route diverges from the regular circulation
path.” (Italics omitted.)
36
that the store’s parking lot lacked a “designated, accessible
path of travel” from the street to the store that did not pass
behind parked cars. The FAC clearly distinguishes that
missing path from the path that Baskin actually used to
patronize the store, as the FAC alleges: “The lack of a
designated, accessible path to [the store] means that . . . the
only way for [Baskin] to get to the [store’s] entrance is to
wheel herself up the vehicular drive aisle, among moving
cars that [were] trying to get into and out of the busy
parking lot, and then to wheel herself behind parked cars to
the store entrance.” Under this theory, Baskin’s signagebased
claim asserts that inadequate signage is a feature of
the missing path, rather than of any path Baskin may have
actually used.
It is unnecessary to address whether the FAC’s
allegations adequately pleaded the first theory because that
theory fails on its merits.
16 As discussed above (see pt. C. of
16 As we review the trial court’s ruling, not its reasoning (J.B.
Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997)
59 Cal.App.4th 6, 15), we will affirm the trial court’s ruling on
any theory established by the record (Day v. Alta Bates Medical
Center (2002) 98 Cal.App.4th 243, 252, fn. 1). This principle is
applicable even when the statement of decision lacks findings
related to the theory, provided that the record unequivocally
establishes the requisite facts. (Mayer v. C.W. Driver (2002) 98
Cal.App.4th 48, 63-64; see McAdams v. McElroy (1976) 62
Cal.App.3d 985, 996 [failure to make finding in statement of
decision is harmless when the record conclusively establishes
(Fn. is continued on the next page.)
37
the Discussion, ante), the 2013 CBSC standards did not
require Hughes to create the missing accessible route
described in the FAC. For that reason, the 2013 CBSC
standards cannot reasonably be regarded as mandating
directional signs identifying any such route.
3. Lack of Signage Identifying Actual Paths
Baskin’s second theory, as set forth in her trial brief
and on appeal, is that Hughes failed to provide directional
signs identifying the actual route or routes to the store. As
noted above (see pt. C. of the Discussion, ante), Baskin’s
trial brief stated that “[a]t [the] Ralphs [store], like any
other shopping center, pedestrians could choose to reach the
entrance by walking between the cars parked in the parking
lot. For example, a pedestrian could walk into the parking
lot between the cars parked along [the public street] and
weave their way to the entrance. . . . Wheelchair users do
not have this option because . . . a wheelchair cannot fit
between two parked cars.” Baskin’s trial brief further
contended that due to the restricted options available to
wheelchair users, the 2013 CBSC standards required
directional signs informing them how to reach the store’s
entrance.
Viewed in the context of the FAC’s allegations,
Baskin’s second theory is that Hughes failed to provide signs

finding favorable to judgment].) Here, our conclusion relies on no
factual determinations subject to challenge or dispute.
38
identifying routes that made use of the vehicular lanes, such
as the routes Hughes actually provided. As noted above, the
FAC alleges that “the only way for [Baskin] to get to the
[store’s] entrance” made use of “the vehicular drive aisle,
among moving cars that [were] trying to get into and out of
the busy parking lot,” and led her “behind parked cars to the
store entrance.” (Italics added.) On appeal, Baskin
acknowledges that the routes relevant to her second theory
are those making use of the parking lot’s “vehicular drive
aisles,” which Hughes offered as the accessible routes.
Accordingly, under the second theory, Baskin’s signagebased
claim asserts that adequate signage was required of
such routes, rather than of the missing path targeted by the
first theory.
In our view, the trial court correctly determined that
the FAC did not plead the second theory, as it failed to plead
that the routes Hughes offered that made use of the
vehicular drive lanes were in some manner unobvious or
easily overlooked. Because the State Architect falls within
the Department of General Services, which is charged with
the enforcement of the CBSC standards (Campbell v. State
Personnel Bd. (1997) 57 Cal.App.4th 281, 284; Gov. Code,
§ 4453), we look to the State Architect’s advisory note
accompanying 2013 section 11B-216.6 for guidance
regarding its application. (See Wilson, supra, 163
Cal.App.4th at p. 1138; Hankins, supra, 63 Cal.App.4th at
pp. 523-524.) That note states that directional signs “are
39
not needed where paths are . . . readily apparent.” (Italics
added.)
Nothing in the FAC reasonably suggests that the
routes that Hughes offered, making use of vehicular access
lanes, were not readily apparent. Indeed, the FAC alleges
that Baskin recognized that the only paths available to her
made use of those lanes; furthermore, the sole defects in
those paths identified in the FAC were that they placed
Baskin among moving cars and led her past parked cars.
Although the FAC asserted the absence of “a designated,
accessible path,” that allegation referred to the target of the
first theory, not the paths Baskin actually used to travel to
the store. The FAC thus failed to plead a “fact . . . essential
to the cause of action under the statute.” (Green, supra, 39
Cal.App.2d at p. 56.)
Baskin contends that Hughes waived its objections to
the signage-based claim by failing to demur to the FAC in a
timely manner. We disagree. As Witkin explains, although
certain objections to a complaint -- such as lack of certainty
in the allegations -- are waived by failure to assert a timely
demurrer, the principal defect ordinarily asserted by a
general demurrer -- namely, failure to state facts sufficient
to state a cause of action -- is not so waived, and may
properly be raised prior to trial. (5 Witkin, Cal. Procedure,
supra, Pleading, §§ 952, 958-959, pp. 367-368, 372-373.)
That is the defect Hughes asserted in its motion in limine to
exclude all evidence relating to inadequate signage, which
40
was “‘in the nature of a general demurrer’” (Clemens, supra,
193 Cal.App.3d at p. 451).
17
Had the FAC sufficiently pleaded a signage-based
claim predicated on the second theory, we would conclude
that it failed on the merits. The maps and overhead photos
of the parking lot submitted at the hearing on liability show
that the parking lot surrounding the store is not large, and
that the rows of painted parking spaces define clear
vehicular access lanes. For that reason, the routes to the
store’s entrances that Hughes offered are readily apparent
to wheelchair users entering the lot from the streets. In
sum, the trial court did not err in rejecting Baskin’s DPA
claim insofar as it was predicated on inadequate signage.
17 Baskin suggests that Hughes’s motion in limine was an
improper procedural vehicle for attacking the signage-related
claim. She relies on Amtower v. Photon Dynamics, Inc. (2008) 158
Cal.App.4th 1582, 1587, in which the trial court granted a motion
in limine to exclude all evidence regarding a claim on the ground
that it was time-barred. Although the appellate court criticized
the use of motions in limine to dispose of claims, it acknowledged
that courts have the inherent power to use them in that manner,
and affirmed the trial court’s ruling. (Id. at pp. 1592-1597.)
Nothing in that decision establishes that the ruling before us was
incorrect or improper.

Outcome: The judgment is affirmed. Respondent is awarded its costs on appeal.

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