Judge: Cherol J. Nellon, Case: 23STCV22779, Date: 2024-01-23 Tentative Ruling

Case Number: 23STCV22779    Hearing Date: January 23, 2024    Dept: 14

Walter Mitchell vs. Covenant Living

Case Background

 

Plaintiff is a blind individual. To navigate the Internet, he uses a screen-reading software that verbally recounts what a web site says and lets him know what keyboard commands to use in navigating the site. Plaintiff alleges that Defendant’s website design is not compatible with his screen-reading software, leaving him unable to use the site.

 

            On September 20, 2023, Plaintiff filed his Complaint for Violation of the Unruh Act against Defendants Covenant Living Communities and Services (“Defendant”).

 

            No trial date has yet been set.

 

Instant Pleading

 

            Defendant now demurs to the complaint, on the ground that (1) Plaintiff has no standing because he has not pled eligibility to use Defendant’s services, (2) Plaintiff’s claim is moot because screen readers have always worked on Defendant’s web site, and (3) Plaintiff has failed to identify anything that he could not access.

 

Decision

 

            Defendant’s Request for Judicial Notice is DENIED. The exhibits thereto are not proper subjects for judicial notice, and they constitute extrinsic evidence which the court cannot consider on demurrer.

 

            Plaintiff’s Request for Judicial Notice is GRANTED as to Exhibit 1 and otherwise DENIED. Briefs filed by non-parties in other cases represent additional argument which should come from Plaintiff in his memorandum.

 

            The demurrer is SUSTAINED, with 10 days leave to amend.

 

Governing Standard

 

            Civil Code § 51 provides in relevant part as follows:

 

            “(a) This section shall be known, and may be cited, as the Unruh Civil Rights Act.


(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
…
(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.”

 

Civil Code § 52 provides in relevant part that:

“(a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney's fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”

 

There are two ways to state a claim for the violation of Civil Code § 51: (1) allege intentional discrimination based on the plaintiff’s inclusion in a protected category, or (2) allege a violation of the ADA. Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668-672. Plaintiff has attempted both in this case.

 

Discussion

 

            To have standing to sue under the Unruh Act, a plaintiff must have visited the establishment with a “bona fide” intent to buy their goods or use their services. White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032. Defendant argues that, because it is a senior living facility with a minimum age, Plaintiff may not be eligible to use their services and therefore may not have standing to sue.

 

Plaintiff responds that (1) he was interested in securing the Defendant’s services for his mother and (2) was investigating for his own sake, as he is nearing eligibility. While this may be true, it was not pled. Plaintiff should include those facts in his pleadings.

 

Conclusion

 

            Because Plaintiff is obliged to plead a bona fide intent to use Defendant’s services, and Defendant’s services are confined to a specific age group, Plaintiff needs to plead facts showing his interest in and eligibility for those services. Therefore, the demurrer is SUSTAINED, with 10 days leave to amend.