Judge Bruce G. Iwasaki, Case Number: 23STCV29913, Date: 2024-04-09 Tentative Ruling

On March 6, 2024, Defendant Yoshi Hair Studio filed a demurrer to the Complaint. Plaintiff Luis Licea filed an opposition.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendant demurs to the violation of the Unruh Civil Rights Act cause of action on the grounds that Plaintiff has failed to state a claim.

The Unruh Civil Rights Act guarantees every person in California “full and equal” access to “all business establishments of every kind whatsoever” and imposes a duty on business establishments to serve all persons without arbitrary discrimination. (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 50 Cal.3d 72, 75.)

A plaintiff can recover under the Unruh 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.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.)

Plaintiff is a permanently blind “tester” who insists that she “genuinely wants to use defendant’s goods and services.” She alleges that she attempted to access Defendant’s website but the website was inaccessible to people who were visually impaired. (Compl., ¶ 20.) The Complaint further alleges that “Defendant’s actions constitute intentional discrimination against Plaintiff on the basis of a disability in violation of the Unruh Act because Defendant has constructed a Website that is inaccessible to Plaintiff, knowingly maintains the Website in this inaccessible form, and has failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause.” (Compl., ¶ 21.) Additionally, the Complaint alleges Defendant “violat[ed] the Unruh Act because the conduct alleged herein likewise constitutes a violation of various provisions of the ADA.” (Compl., ¶ 22.)

These allegations are insufficient to state an Unruh claim based on intentional discrimination.

First, “[u]nless an Unruh Act claim is based on an ADA violation, the act requires a claimant to prove “ ‘intentional discrimination.’ ”” (Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036.) A plaintiff cannot not “rel[y] on the effects of a facially neutral policy on a particular group ... to infer solely from such effects a discriminatory intent.” (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.; see also ibid. [“ ‘[a] disparate impact analysis or test does not apply to Unruh Act claims’ ”].) Thus, absent an ADA violation, the Unruh Act requires allegations supporting “ ‘willful, affirmative misconduct’ ” (Koebke v. Bernardo Heights Country Club, supra at p. 853,) with the specific intent “to accomplish discrimination on the basis of [a protected trait].” (Id. at p. 854.)

Here, there are no specific allegations showing discriminatory intent. Rather, the allegations show only that Defendant failed to take corrective action after being notified of the allegedly discriminatory impact. Such allegations are insufficient as matter of law to show discriminatory intent. (Martinez, supra, 81 Cal.App.5th at p. 1036.)

The demurrer, however, does not persuasively address Plaintiff’s allegations that the Unruh claim is also based on a violation of the Americans with Disabilities Act.

To state a claim under the Unruh Act based on a violation of the ADA, a plaintiff must plead a violation of the ADA; specifically, Plaintiff must allege (1) he is disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) that he was denied public accommodations by Defendant because of his disability. (Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)

In the moving papers and reply, Defendant asserts that the holding in Koebke requires a showing of intentional discrimination to show a ADA violation. Defendant’s analysis of this issue is not well-taken. It is well established that an Unruh violation based on an ADA violation does not require a showing of intentional discrimination.[1] ((Martinez, supra, 81 Cal.App.5th at pp. 1038–1039; Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 672-673.)

Thus, the demurrer must be overruled as it states a claim for an Unruh Act violation based on an ADA violation.

[1] In Martinez, which is repeatedly cited by Defendant, the court explained that a standalone website, with no connection to a physical location where goods or services were offered to the public, does not constitute a place of public accommodation under Title III of the ADA. (Martinez, supra, 81 Cal.App.5th at pp. 1034, 1039.) Here, however, the Complaint alleges Defendant operates a ““brick and mortar” location . . . such that the inaccessibility of the website illegally impedes access to the goods and services offered at the physical location, which is a place of public accommodation.” (Compl., ¶ 1.)

Judge Bruce G. Iwasaki

Department 58