Judge Bruce G. Iwasaki, Case 21STCV22240 2022-12-20 Tentative Ruling

Tentative Ruling: The motion for summary judgment is granted. The Court orders Defendant to take the necessary steps to ensure its website is compliant with Web Content Accessibility Guidelines 2.1, Levels A and AA. Plaintiff is awarded $4,000 in statutory damages.

Luis Licea (Plaintiff or Licea) filed a single count complaint against Laugh Factory (Defendant) for violation of the Unruh Civil Rights Act. Plaintiff alleges that he is a blind individual “who requires screen reading software to read website content and access the internet.” Defendant allegedly maintained its website, https://www.laughfactory.com/ “in such a way that the Website contained numerous barriers preventing Plaintiff, and other blind and visually-impaired individuals, from gaining equal access to the Website.” Plaintiff further alleges that he is a “tester,” who “visit[s] places of public accommodation to determine their compliance with Title III [of the ADA].” The Complaint alleges several accessibility barriers such as missing alternative text (invisible codes embedded beneath a graphic so a screen reader can speak the text to the user), empty or missing form labels, missing document language, and redundant links which redirect to the same URL address.

Plaintiff moves for summary judgment that because the website violates the Americans with Disabilities Act (ADA), this necessarily results in a violation under the Unruh Civil Rights Act. (Civ. Code, § 51, subd. (f).) Defendant opposes the motion, arguing there is a dispute of fact because the website does not have accessibility problems. Plaintiff replied, contending that Defendant’s evidence is not credible and fails to address the violation as it occurred in February 2020.

The Court grants Plaintiff’s request for judicial notice of guidance documents, press release, and an amicus brief filed by the Department of Justice, and various other federal court documents. (Evid. Code, §§ 452, subds. (c), (d).) Defendant’s objection to Plaintiff’s additional evidence on reply is sustained.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Ibid.

When a plaintiff seeks summary judgment or adjudication, he or she must show “that there is no defense to a cause of action if [he or she] has proved each element of the cause of action entitling [him] to judgment on the action.” (Code Civ. Proc., § 437c, subd. (p)(1). Once the plaintiff meets this burden, “the burden shifts to the defendant…to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

“A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA (Civ. Code, § 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination.’ ” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 (San Diego County Credit Union).)

Websites alone are generally not places of public accommodation. However, “most of the federal circuits and one California Court of Appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity’s website if there is a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities.” (Id. at p. 1054; see also Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 (Thurston) [“We hold that including websites connected to a physical place of public accommodation [under Title III of the ADA] is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute].)

A plaintiff sufficiently shows a nexus between the website and the physical facility if the site “ ‘connect[s] customers to the goods and services of [the defendant’s] physical’ place. (San Diego County Credit Union, supra, 50 Cal.App.5th 1048, 1067.) Thus, it was sufficient to allege that the site permitted the plaintiff to “research and prepare” the defendant’s products and services “before going to the physical facility,” which would provide him “full and equal access to the entity’s offerings.” (Id. at p. 1069.) Similarly, in Thurston, a blind individual sufficiently showed a nexus because the site provided customers the opportunity to review the defendant restaurant’s menu and make a reservation for a meal. (39 Cal.App.5th at p. 645.)

Defendant does not specifically argue the applicability of either theory of recovery under the Unruh Civil Rights Act; instead, it merely contends that there are triable issues of material fact based on the two declarations that it filed. Thus, the Court proceeds under the first theory that the website is in violation of the ADA.

Plaintiff seeks summary judgment based upon Defendant’s website’s alleged violation of the ADA. (Civ. Code, § 51, subd. (f) [“A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section”].)

Under the ADA, “[n]o individual shall be discriminated against 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. § 12182(a).) Discrimination is further defined as failure to take steps necessary to “ensure that no individual with a disability is excluded . . . because of the absence of auxiliary aids and services.” (42 U.S.C. § 12182(b)(2)(A)(iii).)

The ADA expressly defines public accommodations as including hotels, restaurants, theaters or other places of exhibition or entertainment, auditoriums or other places of public gatherings. (42 U.S.C § 12181(7)(A)–(L).)

For an ADA violation, a plaintiff must plead and prove: “(1) a covered disability; (2) ‘the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [the] disability." (San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1060.)

Here, under Thurston and San Diego County Credit Union, a viable ADA claim exists because there is a sufficient nexus between the website and physical facility: consumers may purchase tickets[1] and view videos in deciding whether to attend any particular show. This is analogous to making an “informed decision[] about [the business’s] products and services.” (San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1069; see also Thurston, supra, 39 Cal.App.5th at p. 645 [“customer is simply speeding up his experience at the physical location . . . [i.e.,] his table will be ready when he arrives at [the restaurant]”].)

As to the ADA violation, the first two elements are undisputed: Plaintiff is blind, and Defendant is a private entity that operates comedy clubs, which fall under a place of entertainment. (See 42 U.S.C. § 12181(7)(C); Ferrell Decl., Ex. 2, Masada Depo, pp. 19:7-9; Undisputed Material Fact (UMF) 1-5.) In addition, the website is an “auxiliary aid[]” to the physical facility. (Ferrell Decl., Ex. 2, Masada Depo, pp. 19:14-22; see San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1066.)

Licea averred that he encountered barriers to Defendant’s website that prevented him from using its features. (Licea Decl. ¶¶ 3-7.) He contends that he visited the website on February 11, 2020, and “more than three times” thereafter. (Id. at ¶ 3.) Licea was attempting to view some “stand up videos” but the homepage had “unlabeled buttons and links” that caused confusion. For example, he cites to a “podcast radio” link that was unlabeled and inaccessible. After he clicked on the link, his screen reader was unable to recognize the text. (Id. at ¶ 4.) Furthermore, the graphics on the website were poorly labeled as “unlabeled graphic, graphic” or “figure, figure, figure.” (Id. at ¶ 5.) Licea also avers that he tried to buy tickets to a show at the “Hollywood Club,” but the button was unlabeled and had no specific instructions. (Id. at ¶ 6.) Consequently, he was unable to purchase any tickets for him and his brother to attend a live show. (Id. at ¶ 9.)

The dispute here is to the third element. Defendant contends that the website was fully accessible since February 2020 when Plaintiff first attempted access. (Defendant’s response to UMF 8-11.) In support, Defendant provides the declaration of Mansoor Saleem (Saleem), who is a web developer that was retained by the Laugh Factory to oversee its website.

Saleem attests that he tested the website on November 30, 2022, and he refutes concerns on accessibility. He states that the cursor does not jump from one item on one page to the next item on another page; that each item on the website has an alt tag; that the heading level structure are all appropriately leveled; that the accessibility menu is usable; that the site has a proper SSL (security) Certificate; and that the graphics are all labeled. (Saleem Decl., ¶¶ 7-13.) Saleem avers that he had other companies assess the website for compliance, including “AccessibilityChecker.org” and “UserWay.” (Id. at ¶¶ 15-17.) Saleem’s declaration is in direct response to Plaintiff’s provided declaration of his own expert, Vashaun Jones.

In his reply, Plaintiff opposes the declaration, contending that the evidence fails to refute Plaintiff’s showing that the website was inaccessible in February 2020.

The Court agrees with Plaintiff. First, the declaration is conclusory on refuting the specific barriers that Plaintiff raised in his declaration. Saleem fails to articulate how he reaches many of his conclusions and any reasoning. (See Saleem Decl., ¶¶ 7-8.)

As to Saleem’s reliance on “AccessibilityChecker.org,” this is improper. A party opposing a motion for summary judgment must rely on admissible evidence. (Code Civ. Proc., § 437c, subd. (d); Hayman v. Block (1986) 176 Cal.App.3d 629, 638.) The website is a writing, which must be authenticated before being received in evidence. (Evid. Code, § 1401, subd. (a); People v. Beckley (2010) 185 Cal.App.4th 509, 517-518).

Saleem did not authenticate the report, simply contending that he inputted the Laugh Factory’s URL into the site. There is no information on his knowledge about the website or what the website purports to evaluate. And the report itself contains no indication that it reviewed the laughfactory.com URL. It appears to be a generic report with no title or reference to the tested website. (Saleem Decl., Ex. 2.) Furthermore, the report is inadmissible hearsay given that Defendant is offering it to prove the truth of the matter asserted, i.e., that the website had no accessibility barriers. Similarly, the “UserWay” report is also inadmissible. No foundation is provided, and the report contains no detail, merely concluding that the webpage is “ADA compliant” as of November 29, 2022.

Moreover, Saleem’s declaration fundamentally does not address Plaintiff’s declaration that he used the website in February 2020 and encountered accessibility issues back then. Rather, the declaration is based only on speculation and that Plaintiff lacks credibility. (Code Civ. Proc., § 437c, subd. (e).) The Court disregards this evidence. Accordingly, Defendant fails to raise a triable issue of fact as to the website’s accessibility violations.[2] The Court next considers the remedies available to Plaintiff.

Plaintiff seeks an injunction for Defendant to comply with Web Content Accessibility Guidelines (WCAG) 2.1, Levels A and AA.

Under Civil Code section 52, subdivision (c)(3), any person aggrieved by the discriminatory conduct may bring a civil action seeking an injunction. (See also Thurston, supra, 39 Cal.App.5th at pp. 652-653; 42 U.S.C. § 12188, subd. (a)(2).) Other courts have held that injunctive relief pursuant to the WCAG is appropriate. (San Diego County Credit Union, supra, 50 Cal.App.5th at pp. 1073-1074; Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 902, n.1 [“the [DOJ] has required ADA-covered entities to comply with WCAG 2.0 level AA (which incorporates level A) in many consent decrees and settlement agreements in which the United States has been a party”]; Redick v. PP Retail USA, LLC (C.D.Cal. June 9, 2022, No. CV 21-06096 RGK (SKx)) 2022 U.S.Dist.Lexis 135765, *7-8 [“Because Plaintiff encountered website barriers that prevented her from full and equal access to Defendant’s Business, she has standing to seek a Court order requiring Defendant to implement a website accessibility policy that substantially conforms with WCAG 2.1 Level AA guidelines”]; Rosales v. Indivest, Inc. (C.D.Cal. Mar. 4, 2022, No. 2:21-CV-02195-AB (PVCx)) 2022 U.S.Dist.Lexis 110623, *17-18; Mason v. Aldea Design, Inc. (C.D.Cal. Jan. 6, 2022, No. 2:21-cv-07823-SB-PVC) 2022 U.S.Dist.Lexis 109566, *10 [“District courts have since issued injunctions ordering defendants to conform their websites with WCAG 2.1, the latest version of the guidelines”].)

Here, Defendant does not dispute that it would be unduly burdensome to provide a website accessible to visually impaired users because it “already provides an accessible website.” However, it provides no evidence in support of that assertion; the only evidence provided is again, Saleem’s declaration, which is conclusory and insufficient.

As noted earlier, Saleem provides mere conclusions to rebut Plaintiff’s expert, Vashaun Jones. Saleem asserts that he conducts a “weekly review of the website” to ensure compliance with WCAG standards but provides no reports. (Saleem Decl., ¶ 4.) He contends that Plaintiff’s accessibility barriers “do not now exist” without supporting evidence. (Id. at ¶ 5.)

Notably, Plaintiff’s expert, Jones, analyzed four different webpages: (1) the homepage (www.laughfactor.com); (2) the “clubs” page (www.laughfactor.com/clubs); (3) the “magazine” page (www.laughtfactory.com/magazine); and the (4) “Hollywood club” page (www.laughtfactory.com/clubs/hollywood). (Jones Decl., Ex. 1.) Jones delineated four specific types of barriers: keyboard accessibility, missing ALT text, unclear numbered hearing structures, and “page not secure” warnings. Each webpage contained some or all these barriers. Saleem’s Declaration appears to be directed only to the homepage. (Saleem Decl., ¶ 5, 16, 17, Ex. 1.) He does not specifically address the subpages on which Jones’s Declaration is based upon. (Jones Decl., ¶ 8, 9.) Therefore, to the extent that those subpages, and the rest of the website, still contain accessibility barriers, the Court grants the injunctive relief and orders Defendant to prospectively ensure its website is compliant with WCAG 2.1, levels A and AA, the standard recommended by the Department of Justice and utilized in its consent decrees. (Request for Judicial Notice, Ex. 1, 5.) Defendant is ordered to achieve compliance no later than March 31, 2023.

Plaintiff requests $4,000 each time he was discriminated against and asserts that he is entitled to $16,000 in statutory minimum damages because he “attempted to access the website [] more than three times.” (Licea Decl., ¶ 3.) The Court disgrees.

Plaintiff’s citation to Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 is misplaced because that case merely discussed that there is a minimum statutory award of $4,000 per violation but does not define what “per violation” means. Our Supreme Court has noted that equity and constitutional constraints may limit the “accrual of statutory penalties” of Civil Code section 52. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 179-180 [considering the hypothetical of “daily visits for a period of a year”].)

In the context of websites, federal courts have held that $4,000 is the maximum penalty, regardless of how many times a plaintiff has visited a defendant’s website. (Licea v. Rugs.com, LLC (C.D.Cal. Sep. 14, 2021, No. 2:21-cv-05308-AB-GJS) 2021 U.S.Dist.Lexis 175726, *8 [finding it to be unreasonable to conclude that “Plaintiff would recover 3 penalties for visiting the website 3 times]; Martin v. Container Store, Inc. (C.D.Cal. May 4, 2022, No. 8:22-CV-00410-CJC(KESx)) 2022 U.S.Dist.Lexis 81334, *5-6 [“there is nothing in Plaintiff’s complaint that would suggest that Plaintiff encountered ‘new access barriers’ each time he visited the Website,” thus precluding multiple $4,000 penalties]; see also Robles v. Domino's Pizza LLC (C.D.Cal. June 23, 2021, No. CV 16-6599 JGB (Ex)) 2021 U.S.Dist.Lexis 124356, *29 [granting plaintiff’s motion for summary judgment, but only granting $4,000 in penalties because plaintiff “alleged a single overarching violation: Defendant maintained a website that screen readers cannot read . . . each of Plaintiff’s individual visits to the website encountered the same barrier and therefore the same violation”].)

The Court finds that this case is distinguishable from the cases that awarded damages for multiple visits to physical facilities. Those cases appear to have also analyzed the reasonableness in which a plaintiff decides to re-visit a particular establishment. (See Feezor v. Del Taco, Inc. (S.D. Cal. 2005) 431 F.Supp.2d 1088 [visiting the restaurant a year apart on November 2, 2003, September 10, 2004, and January 10, 2005]; Hubbard v. Rite Aid Corp. (S.D.Cal. 2006) 433 F.Supp.2d 1150, 1170 [visiting the store on November 17, 2002, July 29, 2003, and January 24, 2004].) Secondly, those cases all involve physical establishments, which are explicitly defined as “public accommodations” under 42 U.S.C. § 12181(7)(A)–(L). In contrast, the website here must have a sufficient nexus to a physical premise. The website alone does not constitute a “place of public accommodation” under 42 U.S.C. 12181(7) and 12182. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1052, n.9.) Plaintiff Licea fails to show that he is entitled to a separate statutory penalty with every click on the website.

For those reasons, Plaintiff is entitled to a statutory penalty of $4,000 for a single, overarching violation based on the website’s inaccessibility to blind individuals using screen readers. The Court does not find that it is reasonable that Plaintiff could recover three penalties for visiting the same website three times. By that logic, there is nothing stopping Plaintiff from visiting the website multiple times in one day to amass significant statutory penalties.

Alternatively, even if the Court were to adopt an expansive view to award statutory penalties, Plaintiff has failed to make a sufficient showing of such an entitlement. He merely avers that he visited the website “more than three times” but fails to provide any specific dates or further information. (See Panarese v. Sell It Soc., LLC (E.D.N.Y. July 2, 2020, No. 19 CV 3211 (ARR)(RML)) 2020 U.S.Dist.Lexis 119002, *16.) This precludes the Court from engaging in any meaningful analysis into the reasonableness of Plaintiff’s access attempts.

Finally, there may also be issues of “stacking” in which a plaintiff fails to meet his duty to mitigate damages by making “ ‘multiple visits to the same facility before they could reasonably expect that the barrier was corrected.’ ” (Yates v. Vishal Corp. (N.D.Cal. Nov. 18, 2013, No. 11-cv-00643-JCS) 2013 U.S.Dist.Lexis 163969, *11-12.) However, given that Plaintiff fails to provide any dates of subsequent attempts, the Court does not reach this issue.

Plaintiff’s motion for summary judgment is granted. Defendant is ordered to ensure that its entire website complies with WCAG 2.1, Levels A and AA, no later than March 31, 2013. Plaintiff is granted statutory damages in the amount of $4,000. This penalty shall be paid on or before March 31, 2013.

[1] Defendant disputes that the website sells tickets directly, contending instead that a third-party vendor handles the sale. To the extent that it is arguing it cannot be liable because a third-party is involved, this argument was rejected in Thurston, supra, 39 Cal.App.5th at p. 645-646 [“appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if it hires someone else to do the discrimination”].)

[2] Defendant also disputes that its phone number was listed in multiple places on its website. While Defendant does not argue this further, the Thurston Court rejected the availability of a telephone number or e-mail as being sufficient: Plaintiff was still deprived of her independence because “[t]he use of either [phone or e-mail] required [plaintiff] to depend upon another person’s convenience to obtain information.” (39 Cal.App.5th at p. 651.)