Judge: Alison Mackenzie, Case: 22STCV25088, Date: 2024-02-15 Tentative Ruling
Case Number: 22STCV25088 Hearing Date: February 15, 2024 Dept: 55
NATURE OF PROCEEDINGS: Demurrer of Defendant to First Amended Complaint;
Motion Thereof to Strike Portions of First Amended Complaint.
The demurrer is overruled.
The motion to strike is denied.
Twenty days to answer.
BACKGROUND
Plaintiff ADERIYIKE LAWAL (“Plaintiff”) alleges that she
is blind and requires screen-reading software to access and read website
content on the internet. Plaintiff alleges that Defendant INGLOT USA, LLC
(“Defendant”) produces, markets, and sells makeup and skincare products through
its websites and various brick-and-mortar stores. Plaintiff alleges that
Defendant’s website has access barriers that make it impossible for visually
impaired individuals like Plaintiff to utilize the websites. Plaintiff’s First
Amended Complaint (“FAC”) alleges one cause of action for violation of the
Unruh Civil Rights Act (“UCRA”), Civil Code §§ 51, 52.
Defendant has now filed a demurrer to the FAC and a motion
to strike allegations in the FAC that Plaintiff is entitled to recover
statutory penalties of $4,000 for “each offense” or “per violation” of the
UCRA. Plaintiff opposes the demurrer and motion to strike.
ANALYSIS
Plaintiff alleges that Defendant’s conduct violates
the UCRA in two respects. First, Plaintiff alleges that Defendant’s actions
constitute intentional discrimination based on a disability. (FAC, ¶ 92.)
Second, relying on the provision of the UCRA that states that violations of the
rights of any individual under the federal ADA also constitute a violation of
the UCRA, Plaintiff alleges that the operation of Defendant’s websites in a
manner that imposes barriers against blind individuals violates the ADA and
thus the UCRA as well. (Id., ¶ 93.) See Martinez v. San Diego Cnty.
Credit Union (2020) 50 Cal. App. 5th 1048, 1059 (“A plaintiff can recover
under the Unruh Civil Rights Act on two alternate theories: (1) a violation of
the ADA (§ 51, subd. (f)); or (2) denial of access to a business establishment
based on intentional discrimination”).
Intentional Discrimination
An UCRA claim based on intentional discrimination cannot
rely on the effects of a facially neutral policy on a particular group “to infer
solely from such effects a discriminatory intent,” and must instead include
allegations supporting “willful, affirmative misconduct.” Martinez v. Cot'n
Wash, Inc. (2022) 81 Cal. App. 5th 1026, 1036. An allegation that a
plaintiff informed the defendant about the effects of a facially neutral policy
does not, taken alone, suffice to show such affirmative misconduct. Id.,
81 Cal. App. 5th at 1038.
Defendant contends that Plaintiff’s allegations fail
to allege facts suggesting that Defendant created and maintained the inaccessible
websites with the intent or goal of discriminating against visually impaired users
like Plaintiff. Defendant contends that the FAC allegations amount to alleging
that Defendant operates websites that are facially neutral but have a disproportionate
effect on visually impaired users, which does not constitute willful,
affirmative misconduct. The Court disagrees. Plaintiff alleges that Defendant
has a “policy” of denying visually impaired individuals like Plaintiff with full
access to Defendant’s websites, thus denying such individuals the ability to access
the goods and services available on the websites. (FAC, ¶ 66.) Plaintiff
alleges that Defendant “lack a corporate policy” to cause the websites to
become and remain accessible and use standards that have the effect of discriminating
against visually impaired users like Plaintiff. (FAC, ¶¶ 81-83.) Such factual allegations are
sufficient, at the pleading stage, to state a UCRA claim based on intentional
discrimination. See Hankins v El Torito Restaurants, Inc. (1998)
63 Cal. App. 4th 510, 518 (allegations that defendant had a policy that
specifically targeted disabled individuals like the plaintiff deemed sufficient).
ADA Violation
The ADA prohibits discrimination based on disability
in places of public accommodation. (42 U.S.C. § 12182(a).) To establish a
violation of the ADA, a plaintiff must show that she has a disability covered
by the ADA, “defendant is a private entity that owns, leases, or operates a
place of public accommodation; and [] the plaintiff was denied public
accommodations by the defendant because of [the] disability.” Martinez,
50 Cal. App. 5th at 1060. Under California law, the ADA applies to a defendant who
owns, leases, or operates a place of public accommodation and that operates and
maintains websites connecting customers to the goods and services offered at
the defendant’s physical locations. Id. at 1069. This “nexus” theory requires
showing a connection between a website and a physical location. Id.; Thurston
v. Midvale Corp. (2019) 39 Cal. App. 5th 634, 644.
Plaintiff has adequately pleaded facts regarding the
nexus theory to state a UCRA claim based on an ADA violation. Plaintiff alleges
that her visual impairment impedes her ability to buy products on Defendant’s
websites. Plaintiff also alleges that the products Plaintiff cannot access on
the websites are offered at Defendant’s physical locations. (FAC, ¶¶ 9, 90.)
Defendant contends that it “does not own, lease, or
operate a physical place of its own in California at which Defendant’s products
are sold.” (Rep., 2:14-15 and 4:9). But
of course, Defendant “cannot set forth allegations of fact in [its] demurrer []
which, if true, would defeat plaintiff's complaint.” Gould v. Maryland Sound
Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144 (internal quotation
omitted). “No matter how unlikely or
improbable, plaintiff's allegations must be accepted as true for the purpose of
ruling on the demurrer.” Kerivan v.
Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229. Here, Plaintiff
has alleged that Defendant sells its products at various brick-and-mortar locations
that it owns and operates, as well as other retail stores located in Los
Angeles County. (FAC, ¶¶ 5-9, 35.) Such allegations are sufficient to state an
ADA claim based on a nexus theory.
Motion
to Strike
“‘Where a motion to strike is so broad as to include
relevant matters, the motion should be denied in its entirety.’” Triodyne,
Inc. v. Sup. Ct. (1966) 240 Cal. App. 2d 536, 542. “Defects in pleadings must operate to the
prejudice of the opposite party; otherwise, denial of a motion to strike
presents no cause for reversal.” Starkweather
v. Eddy (1927) 87 Cal.App. 92, 96.
The UCRA’s remedies “include actual damages (as much
as treble damages), a minimum statutory award of $4,000 for each violation, and
injunctive relief. (§ 52, subds. (a), (c)(3).)”
Thurston v. Omni Hotels Mgmt. Corp. (2021) 69 Cal. App. 5th 299,
306. Defendant contends that there is no authority permitting Plaintiff to recover
more than one $4,000 statutory penalty under the UCRA for repeat visits to the
same defendant’s website. Plaintiff contends that various courts have held the
opposite, citing numerous federal court cases. Such federal court rulings carry
little advisory weight for the Court. Alameida v. State Pers. Bd. (2004)
120 Cal. App. 4th 46, 61. The parties cite no California law to the contrary.
Here, Defendant seeks to strike “each offense” and
“per violation” from the FAC. These challenged phrases, however, infer damages
are sought for only one violation, and do not necessarily suggest multiple
violations occurred. The motion to strike thus seeks to strike allegations that
are harmless and not prejudicial to Defendant.
Therefore, the motion is denied for the time being on
procedural grounds.
CONCLUSION
The demurrer is overruled and the motion to strike is
denied. Defendant has twenty days to answer.