Judge: Cherol J. Nellon, Case: 23STCV29159, Date: 2024-02-29 Tentative Ruling

Case Number: 23STCV29159    Hearing Date: February 29, 2024    Dept: 14

Lecea vs Veniroe

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 November 29, 2023, Plaintiff filed his Complaint for Violation of the Unruh Act against Defendant Veniroe, Inc.

            No trial date has yet been set.

(1)       Demurrer

            Defendant now demurs to the complaint, on the ground that Plaintiff has failed to plead willful and affirmative discrimination.

Decision

            Defendant’s Request for Judicial Notice is DENIED. Exhibit 1 is an unpublished ruling in a different case, which is not properly citable as authority,[1] and Exhibit 2 constitutes extrinsic evidence which the court cannot consider on demurrer.

            Plaintiff’s Request for Judicial Notice is DENIED. The materials submitted are not relevant to the argument raised on the demurrer.

            The demurrer is OVERRULED.

Governing Statutes

            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.”

Discussion

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.4^th 661, 668-672. Plaintiff has attempted both in this case.

            Defendant challenges Plaintiff’s ability to plead intentional discrimination. However, Defendant concedes (by not arguing the point) that Plaintiff has pled a violation of the ADA. There is one cause of action for violation of the Unruh Act. An ADA violation under Section 51(f) and intentional discrimination are alternative methods of pleading that same cause of action. In the context of the Unruh Act, intentional discrimination requires something more than the existence of a disparate impact on members of a protected class. Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4^th 824, 854. It requires “willful, affirmative misconduct.” Id. at 853. Because Defendant concedes that Plaintiff has properly pled an ADA violation, the court need not consider the intentional discrimination theory on this pleading.

(2)       Motion to Strike

            Defendant now moves this court for an order striking Plaintiff’s request for damages “for each and every offense” and/or “per violation.” Defendant also requests that this court strike allegations relating to intentional discrimination “in the alternative” to the demurrer.

Decision

            The motion is DENIED.

Discussion

            The language of Civil Code § 52(a), as quoted above, allows recovery for “each and every offense.” The issue here is whether there is a new “offense” every time Plaintiff returns to Defendant’s website and is unable to use it. Defense says no. Plaintiff says yes.

            There are good reasons to fall on either side of the line, as the various federal decisions cited by each party demonstrate.[2] On the one hand, it seems fundamentally unfair for plaintiffs to “run up the score” by repeatedly visiting a non-compliant site without notifying the owner or giving them a chance to resolve the issue. On the other hand, it would be equally unfair to permit defendants to drag their feet on resolution, secure in the knowledge that they will only be forced to pay one penalty.

            The court cannot tell which of these scenarios (or some other possibility) fits this case simply from the face of the pleadings. This is a matter for discovery, and then perhaps a motion for summary adjudication pursuant to Code of Civil Procedure § 437c(t).

            Defendant’s alternative request, that the court strike Plaintiff’s intentional discrimination theory, would have the court engage in an idle act. See Civil Code § 3532. This theory does not affect the damages that may be awarded, or otherwise change the shape of the case. All Plaintiff needs to prevail in full is to prove an ADA violation; and that theory is not contested at this stage.