Judge: Carolyn M. Caietti, Case: 37-2023-00031670-CU-CR-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00031670-CU-CR-CTL MEJICO VS GARDEN COMMUNITIES [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Garden Communities' Demurrer to Plaintiff's Complaint is OVERRULED.

Preliminary Matters Defendant's request for judicial notice is denied as to No. 3 ['case list']. Defendant's request for judicial notice as to Nos. 1 and 2 are granted and notice will only be taken to the extent permitted.

Plaintiff's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Defendant's reply request for judicial notice is granted and notice will be taken to the extent permitted.

The Court is not bound by federal district court and unpublished California appellate decisions, nor other superior court rulings cited by the parties. (Cal. Rules of Ct., rule 8.1115; Wood v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 742, 762-63; Rittman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043, fn. 18.) The parties are also cautioned to ensure compliance with the California Rules of Court regarding font size and page limits. In addition, excessive use of footnotes to avoid page limits could result in those footnotes not being considered by the Court.

Discussion A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Calendar No.: Event ID:  TENTATIVE RULINGS

3015117  45 CASE NUMBER: CASE TITLE:  MEJICO VS GARDEN COMMUNITIES [IMAGED]  37-2023-00031670-CU-CR-CTL The complaint's one cause of action sufficiently states facts to constitute a violation of the Unruh Act.

The complaint sufficiently alleges standing. 'For online businesses, the plaintiff must allege that 'he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services. These requirements are sufficient to limit standing under [the Unruh Civil Rights Act] to persons with a concrete and actual interest that is not merely hypothetical or conjectural.' (Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 306–307, rev. denied (Dec. 22, 2021) (Omni Hotels), citing White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025).) (Standing was not an issue presented in Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075, fn. 9, infra.) Here, the complaint sufficiently alleges she visited Defendant's website, encountered the discriminatory terms and intended to make use of Defendant's services. (Complaint, at ¶¶ 7, 8.) Defendant also argues Plaintiff has not and cannot plead Plaintiff was a bona fide patron of the website, citing Omni Hotels, supra. Omni Hotels does not require Plaintiff be a 'bona fide patron.' Rather, as discussed above, Plaintiff met the allegation requirements described in Omni Hotels. It is only '[b]eyond the pleading stage, if a plaintiff wants to prevail on an Unruh Civil Rights Act claim, he or she must present sufficient evidence to overcome the online defendant's argument that he or she 'did not actually possess a bona fide intent to sign up for or use its services.'' (Omni Hotels, supra, at p. 307, citing White, supra, at p. 1032 (original emphasis).) This case is analogous to Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048 (SDCCU). In SDCCU, the Court of Appeal for the Fourth District/Division One reviewed a ruling on a judgment on the pleadings on a case by a blind individual against a credit union for violation of the Unruh Act. The court explained the two applicable theories of recovery under the Unruh Act are: (i) intentional discrimination; and (ii) violation of the Americans with Disabilities Act (ADA). (Id., at p. 1055.) Since the court concluded the plaintiff sufficiently alleged a claim under the ADA theory, it did not reach the issue whether the alleged intentional discrimination theory also supported the cause of action. (Id., at p. 1059.) In assessing whether the plaintiff alleged a violation of the ADA, the court adopted the majority of courts' view that websites are not 'public accommodations' under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities.

(SDCCU, supra at p. 1063, 1065.) The court also agreed with the majority's standard, defining the scope of the nexus requirement that a plaintiff makes a requisite showing if the facts show the website 'connects customers to the goods and services of the defendant's physical place.' (Id., at p. 1067 [brackets omitted].) Under this standard, courts consider whether the alleged website deficiencies impinge on the plaintiff's ability to have equal access to, and enjoyment of, the products and services offered at the physical location and focus on the connection between the website and the goods and services offered by the defendant. (Ibid.) The Fourth District found the plaintiff's allegations were sufficient to bring the case within the standard. (Id., at p. 1069.) Like the plaintiff in SDCCU, Plaintiff is permanently blind and uses screen readers in order to access the internet and read website content. (Complaint, at ¶ 7.) Plaintiff alleges Defendant maintains its website in such a way that the website contains numerous access barriers, preventing Plaintiff and other blind and visually-impaired individuals, from gaining equal access to the website. (E.g., Complaint, at ¶¶ 7, 19-24.) Analogous to SDCCU, Plaintiff alleged the manner Defendant's website was formatted precluded Plaintiff from using her screen reading software to allow her to read the website's content. (E.g., Complaint, at ¶¶ 19-21.) Defendant's website contained access barriers that prevented free and full use by Plaintiff, including image map area missing alternative text and empty or missing form labels. (Id., at ¶ 22.) Further, Plaintiff was hindered from browsing Defendant's apartment complexes, amenities and services, privileges, advantages, and accommodations that exist online (id., at ¶ 23) and 'Plaintiff has been deterred from visiting Defendant's leasing office and/or accessing information concerning Defendant's apartment complexes as Plaintiff would have been able to do by using the Website.' (Id., at Calendar No.: Event ID:  TENTATIVE RULINGS

3015117  45 CASE NUMBER: CASE TITLE:  MEJICO VS GARDEN COMMUNITIES [IMAGED]  37-2023-00031670-CU-CR-CTL ¶ 24.) If the website were accessible, she could independently and privately investigate Defendant's apartment complexes, services, privileges, advantages, accommodations and amenities found at Defendant's location as signed individuals can and do. (e.g., Complaint, at ¶ 23.) These allegations show the website deficiencies impinged on Plaintiff's ability to have equal access to and enjoyment of Defendant's apartments.

Thus, the complaint sufficiently alleges a violation of the Unruh Act under at least one theory. It is not necessary to assess whether the complaint also alleged an intentional discrimination theory. (See, SDCCU, supra, at p. 1059; see also, Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 ['if the complaint states a cause of action under any theory...that aspect of the complaint is good against a demurrer.'] & [courts 'must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.'].) For these reasons, the demurrer is OVERRULED.

Concluding Orders Defendant is ordered to file and serve an answer by May 3, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant is ordered to serve written notice of the Court's final ruling on all parties by April 23, 2024.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

3015117  45