Judge Christopher K. Lui, Case 22STCV28397 2023-04-14 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff tenants allege that Defendant landlord has failed to remediate uninhabitable conditions at the dwelling which Plaintiffs rent.

Defendant filed a Cross-Complaint alleging that Plaintiffs/Cross-Defendants have created various disturbances at the property, damaged the property, and have refused to move out despite Cross-Complainant terminating their tenancy.

Defendant Memorial Health Services’ demurrer to the first and only cause of action is OVERRULED.

The Declaration of Kandice L. Kim reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Defendant requests that the Court take judicial notice of the following: Defendant’s webpage, https://www.millerchildrens.memorialcare.org/, referred to in the Complaint. The request is GRANTED only as to the existence of the website, but not as to any statements contained therein as they are hearsay, not being offered against the hearsay declarant, but rather by the declarant.

While we may take judicial notice of the existence of the audit report, Web sites, and blogs, we may not accept their contents as true. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364 [76 Cal. Rptr. 3d 146].) “When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.]” (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 [84 Cal. Rptr. 2d 843, 976 P.2d 214].)

The rule against hearsay applies to statements contained in judicially noticed-documents. No exception to the hearsay rule has been demonstrated:

The motion judge took judicial notice of the declarations filed in these three cases, but not of the truth of their hearsay contents. The ruling was correct. The hearsay rule applies to statements contained in judicially noticed documents, and precludes consideration of those statements for their truth unless an independent hearsay exception exists. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 25, p. 119.)

(North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778 [bold emphasis added].)

1. “Guidance on Web Accessibility and the ADA” published on March 18, 2022 via the United States Department of Justice’s official U.S. government website at: https://beta.ada.gov/web-guidance/ (last visited April 3, 2023)(Exh. 1);

2. Press Release dated March 18, 2022 regarding the “Guidance on Web Accessibility and ADA” published on March 18, 2022 via the United States Department of Justice’s official U.S. government website at: https://www.justice.gov/opa/pr/justice-department-issues-web-accessibility-guidance-under-americans-disabilities-act (last visited April 3, 2023)(Exh. 2);

3. Brief of the United States as Amicus Curiae in Support of Appellant in Hooks v. OKBridge, Inc., No. 99-50891, 1999 WL 33806215, at pgs. 6-20 (5th Cir. July 25, 2000) filed on or about July 25, 2000 (Exh. 3);

4. Statement of Interest of the United States of America in National Ass’n of the Deaf v. Netflix, Inc., Case No. 3:11-cv-30168-MAP, Dkt. 45 at pgs. 4, 6 n.4, 12 n.5, 2012 WL 1834803 (D. May 15, 2012)(Exh. 4);

5. Brief for the United States as Amicus Curiae in Magee v. Coca-Cola Refreshments USA, No. 16-668, 2017 WL 3085074, at pgs. 7-13, 15-17, 20-22 (U.S. July 19, 2017)(Exh. 5);

6. Statement of Interest of the United States of America in Vargas, et al. v. Quest

Diagnostics Clinical Labs, Inc., et al., Case No. 2:19-cv-08108-DMG-MRW, Dkt. 118 at pgs. 7-12, 14 Cal. Sept. 20, 2021)(Exh. 6);

7. The consent decree entered in National Fed’n of the Blind, et al. v. HRB Digital LLC, et No. 1:13-cv-10799-GAO, Consent Decree [ECF #60 at pg. 5] (D. Mass. Mar. 24, 2014) (the Consent Decree”)(Exh. 7);

8. Settlement Agreement between the United States of America and Ahold USA, Inc. and Peapod, LLC, DJ 202-63-169, dated November 17, 2014 (Exh. 8);

9. Press Release dated November 17, 2014 on the website of the United States Department Justice announcing its Settlement Agreement with Peapod, LLC and Ahold USA, Inc. (Exh. 9);

10. Settlement Agt. Between the United States of America and edX Inc., DJ #202-36-255, ¶ 18(a), dated Apr. 2, 2015 (Exh. 10);

11. Settlement Agreement Between the United States of America and Teachers Test Prep Under the Americans with Disability Act, DJ# 202-11-346, dated June 18, 2018 (Exh. 11).

12. Denial of Petition for Rehearing En Banc filed on March 2, 2022 in Gil v. Winn-Dixie Stores, Inc., No. 17-13467-CC (11th Cir. Mar. 2, 2022) (per curiam), (Exh. 12).

Requests Nos. 1 – 12 are DENIED. These materials are not relevant to the Court’s ruling on this demurrer. The Court need only take judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The Court may deny a request for judicial notice of material unnecessary to its decision. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.)

1. First and Only Cause of Action (Violation of Unruh Civil Rights Act, Civil Code, § 51 et seq.)

Defendant argues that Plaintiff has not, and cannot, allege any facts showing that he suffered an injury-in-fact – a fundamental standing requirement under the Unruh Civil Rights Act (“UCRA”). Defendant argues that the Complaint fails to allege that any inability by Plaintiff to access subject website actually impacted his ability to patronize a physical location. The Complaint does not plead any actual harm that has occurred to Plaintiff.

The only requirement for pleading standing under the Unruh Civil Rights act was articulated by the California Supreme in White v. Square, Inc. as follows:

When a plaintiff has visited a business's website with intent to use its services and alleges that the business's terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act. In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store. Although mere awareness of a business's discriminatory policy or practice is not enough for standing under the Act, entering into an agreement with the business is not required. We express no view on White's occupational discrimination claims.

8. Plaintiff Rusty Rendon resides in Madera County, California. Plaintiff is permanently blind and uses screen readers in order to access the internet and read website content. As detailed above, despite several attempts to use and navigate the Website, Plaintiff has been denied the full use and enjoyment of the facilities and services of the Website as a result of accessibility barriers on the Website. The access barriers on the Website have caused a denial of Plaintiff’s full and equal access multiple times in the past, and deterred Plaintiff on a regular basis from accessing Defendant’s Website. Similarly, at all relevant times the access barriers on the Website deterred Plaintiff from visiting Defendant’s California hospital location.

9. While Plaintiff genuinely wants to avail himself of Defendant’s goods and services as offered on Defendant’s Website, Plaintiff has a dual motivation: Plaintiff is also a “tester,” which one federal court has defined to be “individuals with disabilities who visit places of public accommodation to determine their compliance with Title III [of the ADA].” . . .

22. Defendant denies blind individuals equal enjoyment of and access to the hospital services, privileges, advantages, and accommodations and information made available through the Website by preventing them from freely navigating the Website. The Website contains access barriers

that prevent free and full use by Plaintiff and other blind persons using screen reading software.

24. Due to the inaccessibility of the Website, blind and otherwise visually impaired customers who use screen readers are hindered from effectively browsing for Defendant’s hospitals, amenities and services, privileges, advantages, and accommodations that exist online unlike sighted users. If the Website were accessible, Plaintiff would independently and privately investigate Defendant’s hospitals, services, privileges, advantages, accommodations, and amenities, and found Defendant’s location, as sighted individuals can and do.

25. Despite several attempts to access the Website in recent months, the numerous access barriers contained on the Website have denied Plaintiff’s full and equal access, and have deterred Plaintiff on a regular basis from accessing the Website. Similarly, based on the numerous access barriers contained on the Website, Plaintiff has been deterred from visiting Defendant’s physical location and/or accessing information concerning Defendant’s hospitals as Plaintiff would have been able to do by using the Website. Plaintiff continues to attempt to utilize the Website and plans to continue to attempt to utilize the Website in the near future. Plaintiff’s dignitary interest as a disabled person has been harmed by Defendant’s actions.

This is sufficient to meet the White pleading standard for standing. This argument is not persuasive.

Defendant argues that Plaintiff has failed to allege facts with sufficient particularity to demonstrate injury or violation of the UCRA.

Again, White does not require such particularity. The details of the dates and instances on which Plaintiff visited Defendant’s website is properly the subject of discovery.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:85.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Defendant argue that to the extent this cause of action is based on a violation of the Americans with Disabilities Act (“ADA”) because Plaintiff has not alleged that a nexus exists between the webpage allegedly visited by Plaintiff and denial of access to a brick-and-mortar location in California that Defendant owns, operates, or leases as required by Cal. Civ. Code § 51(f).

In Martinez v. San Diego Cty. Credit Union (2020) 50 Cal.App.5th 1048, the court adopted the nexus requirement for purposes of an Unruh Act cause of action based upon a violation of the ADA:

The courts have not been consistent in defining the scope of the nexus requirement. (See General Nutrition, supra, 323 F.Supp.3d at p. 1375 [“While courts agree a nexus is necessary, few have defined the nexus precisely.”].) But most courts have interpreted the requirement broadly to conclude that a plaintiff has made the requisite showing if the facts show the website “connect[s] customers to the goods and services of [the defendant's] physical” place. (Robles, supra, 913 F.3d at pp. 905–906; see Thurston, supra, 39 Cal.App.5th at pp. 644–646; General Nutrition, at p. 1376; see also Castillo, supra, 286 F.Supp.3d at pp. 878–881.) We agree with this standard. Because the nexus test presupposes that Congress did not intend ADA to apply directly to a website, courts applying the nexus test 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. This standard requires a court to focus on the connection between the website and the goods and services offered by the defendant.

(Martinez v. San Diego Cty. Credit Union (2020) 50 Cal. App. 5th 1048, 1067 [bold emphasis added].)

As noted above, Plaintiff has sufficiently pled that his inability to use screen reading software with Defendant’s website hinders his ability to research information pertinent to visiting Defendant’s brick and mortar location. This is sufficient to meet the nexus pleading requirement.

Defendant argues that Plaintiff has not pleaded facts showing that Defendant committed “willful and affirmative” misconduct against Plaintiff because of his alleged disability, as required by Cal. Civ. Code § 51(a)–(e):

Unless an Unruh Civil Rights Act claim is based on an ADA violation, the act requires a claimant to prove “‘intentional discrimination.’” (Koebke, supra, 36 Cal.4th at p. 854.) A claimant may not “rel[y] on the effects of a facially neutral policy on a particular group … to infer solely from such effects a discriminatory intent.” (Ibid.; see also ibid. [“‘[a] disparate impact analysis or test does not apply to Unruh Civil Rights Act claims’”].) Thus, absent an ADA violation, the Unruh Civil Rights Act requires allegations supporting “‘willful, affirmative misconduct’” (Koebke, at p. 853) with the specific intent “to accomplish discrimination on the basis of [a protected trait].” (Id. at p. 854.) Although “evidence of disparate impact [may] be probative of intentional discrimination in some cases” under the Unruh Civil Rights Act, it cannot alone establish such intent. (Ibid., italics omitted.)

Martinez argues that the FAC alleges such “‘willful, affirmative misconduct’” (Koebke, supra, 36 Cal.4th at p. 853) sufficient to establish intentional discrimination and thus states a cause of action under the Unruh Civil Rights Act on that independent basis. Specifically, he argues the FAC allegations establish CW “‘failed to take adequate actions to correct’” accessibility barriers in its website “‘even after being notified’” of them in correspondence from Martinez's counsel. (Boldface & italics omitted.) But if, under the reasoning of Koebke, Martinez cannot establish CW's intent to discriminate by showing only that its website does not allow visually impaired individuals the same access available to those who are not visually impaired (i.e., a disparate effect of a neutral structure), it follows that CW's failure to address this disparate effect likewise cannot establish CW's intent to discriminate. (Koebke, supra, at p. 854; see Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1237–1239 [60 Cal. Rptr. 3d 631] (Citations [*1037] omitted.)

. . . To the extent those federal cases suggest an Unruh Civil Rights Act plaintiff can prove intentional discrimination solely through a defendant's failure to adequately respond to complaints about discriminatory effects of a neutral policy or action—and we are not convinced that they all do—we disagree with them as inconsistent with Koebke.

For these reasons, we do not recognize a failure to address known discriminatory effects of a policy as alone sufficient to establish intentional discrimination under the Unruh Civil Rights Act, and the FAC could not have stated a cognizable Unruh Civil Rights Act claim on this basis.

(Martinez v. Cot'n Wash, Inc., (2022) 81 Cal.App.5th 1026, 1036-38 [bold emphasis added].)

Here, Plaintiff does not allege intentional discrimination, only that Defendant failed to address the disparate impact of its website upon sight-impaired individuals.

29. 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.

Under Martinez—which this Court is bound to follow despite Plaintiff’s protestations[1]—this is insufficient to plead intentional discrimination under the Unruh Civil Rights Act.

Plaintiff’s conclusory allegations of intentional discrimination need not be accepted as true for purposes of this demurrer. “[A]lthough a court must on demurrer accept as true properly pleaded facts, a demurrer does not admit contentions or conclusions of law or fact.” (Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 185.)

Nonetheless, because the violation of the ADA is sufficiently pled, the demurrer to this cause of action cannot be sustained. A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4^th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4^th 1680, 1682.) The proper procedure is to bring a motion to strike the substantively defective allegation. (Id. at 1682-83.)

Finally, Defendant argues that Plaintiff has not pleaded that he was a bona fide patron of Defendant, which is a fundamental standing requirement under the UCRA.

However, this is an evidentiary matter going to Defendant’s affirmative defense, which is outside the scope of this demurrer[2].

Beyond 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.” (White, supra, 7 Cal.5th at p. 1032, italics added.) . . .

However, our Supreme Court specifically added that its “opinion does not preclude Square from disputing White's factual allegations. Square may argue in a motion for summary judgment or at trial that White did not actually possess a bona fide intent to sign up for or use its services. Our standing analysis is limited to the pleadings, in which White unequivocally alleges his intention to use Square's services.” (Citations omitted.)

(Thurston v. Omni Hotels Mgmt. Corp. (2021) 69 Cal. App. 5th 299, 307 [bold emphasis and underlining added].)

For the foregoing reasons, the demurrer to the first and only cause of action is OVERRULED.

[1]

What should a trial court do when confronted with a published Court of Appeal opinion which compels it to rule one way when it believes that the opinion is erroneous? First, it has no choice but to follow the declared law in the appellate opinion “wherever the facts of a case are not fairly distinguishable from the facts of the case in which [the appellate court has] declared the applicable principle of law.” (Citation omitted.)

(Cuccia v. Superior Court (2007) 153 Cal. App. 4th 347, 354.)

[2]

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905 [200 Cal. Rptr. 497].)

(Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)