Judge: Curtis A. Kin, Case: 21STCV17170, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV17170    Hearing Date: August 4, 2022    Dept: 72

MOTIONS FOR SUMMARY JUDGMENT (2)

Date:         8/4/22 (9:30 AM)                   

Case:         Luis Licea v. Rhone Apparel, Inc. (21STCV17170)

TENTATIVE RULING:

Plaintiff Luis Licea’s Motion for Summary Judgment is DENIED.

Defendant Rhone Apparel, Inc.’s Motion for Summary Judgment is DENIED.

I.                   PLAINTIFF LUIS LICEA’S MOTION FOR SUMMARY JUDGMENT       

Plaintiff Luis Licea moves for summary judgment on the sole cause of action for violation of the Unruh Civil Rights Act (“Unruh Act”) codified in Civil Code § 51 et seq. “A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the [Americans with Disabilities Act] (§ 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, citing Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670.)

Plaintiff asserts that defendant Rhone Apparel, Inc. violated the Americans with Disabilities Act (“ADA”). Alternatively, if the Court were to find that defendant is not obligated to comply with the ADA, plaintiff maintains that he is still entitled to summary judgment based on defendant’s intentional discrimination.

A.    Evidentiary Matters

Plaintiff’s requests for judicial notice are DENIED in their entirety as “unnecessary to the resolution of the appellate issues before” the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

The Court exercises its discretion to rule on the objections it deems material for the disposition of the motion. (CCP § 437c(q).) Plaintiff’s evidentiary objection number 4 is OVERRULED as to Exhibit B, the deposition of Isaac Paulsen, because defendant included the court reporter’s signed certification page for this deposition transcript. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523, citing CCP § 273(a) [“The deposition excerpts also included the court reporter's signed certification page—an alternative method of authentication”].)

B.     Americans with Disabilities Act

Title III of the ADA states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).)

It is undisputed that plaintiff is blind. (UMF 5.) It is also undisputed that defendant operates a website with a nexus to a physical location. (UMF 2, 3; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 [“[I]ncluding websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute”].) 

At issue here is whether defendant discriminated against plaintiff. Discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C. § 12182(b)(2)(A)(iii).)

To read website content on the Internet, plaintiff uses a screen reader that vocalizes visual information on the computer screen. (UMF 5, 6.) Plaintiff visited defendant’s website on May 4, 2021. (UMF 7.) Plaintiff declares that he “encountered significant barriers that prevented [him] from fully and equally accessing the Website without frustration and difficulty.” (UMF 7.) Plaintiff maintains that the website contained unlabeled buttons that lacked descriptive tags, including buttons reading as “unlabeled 1 button” and “0 button.” (Licea Decl. ¶ 4.) Plaintiff also maintains that certain graphics did not contain labels that described what was on the page. (Licea Decl. ¶ 5.) Instead, the labels read “link graphic Rhone apparel,” “link graphic Rhone,” “link graphic Rhone,” “link graphic Rhone,” “link graphic channel/UCVn5Sb5Jp-

Hwp-9mR4AqBA.” (Licea Decl. ¶ 5.) Plaintiff also declares there were two tabs that read as “1 of 2 tab” and “2 of 2 tab,” which caused confusion as to the function of the tabs. (Licea Decl. ¶ 6.) When plaintiff attempted to purchase a “Swift Tank” from defendant’s website, he was unable to use the “add to cart” function. (Licea Decl. ¶ 7.) According to plaintiff, the website did not indicate that the product was successfully added to the cart and did not redirect plaintiff to a check out page.” (Licea Decl. ¶ 7.)

The foregoing evidence is sufficient for plaintiff to meet his burden on summary judgment. Plaintiff’s declaration demonstrates that defendant may have failed to take steps to ensure that plaintiff, a blind person, was not excluded or denied services because of the absence of auxiliary aids and services. A screen reader is an auxiliary aid. (42 USC § 12103(1)(B); 28 C.F.R. § 36.303(b)(2) [auxiliary aids and services includes screen reader software and “other effective methods of making visually delivered materials available to individuals who are blind”].)

To demonstrate a triable issue of material fact, defendant presents the declaration and supplemental declaration of Isaac Paulsen, its Director of Data and Technology. (Def. Exs. D, E.) Paulsen declares that, in an audit conducted on April 7, 2021, before plaintiff visited the website, there were 63 errors regarding accessibility but that they were all fixed. (Def. Ex. E [“Supp Paulsen Decl.”] ¶¶ 8, 23.) Defendant maintains that 55 of the errors were regarding alternative text, but such alternative text was excluded because it was not needed to navigate the website and would have only confused blind users. (Resp. to UMF 17-19; Def. Ex. B [“Paulsen Dep.”] at 32:22-33:17.) Defendant also maintains that six errors pertained to missing form labels, one error was an empty button, one error was a broken slip link, and three errors were contrast errors. (Supp. Paulsen Decl. ¶ 23.)

Defendant’s evidence is sufficient to demonstrate a triable issue of material fact. Defendant was required to ensure effective communication by furnishing auxiliary aids and services. (28 C.F.R. § 36.303(c)(1) [“A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities”].) “The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” (28 C.F.R. § 36.303(c)(1)(ii).)

Defendant’s averment that it conducted an audit and fixed its barriers to access approximately a month before plaintiff visited the website raises a triable issue of fact regarding whether the access barriers plaintiff claims to have experienced on May 4, 2021 were present and/or rose to the level of depriving plaintiff of full and equal enjoyment of Rhone’s website. For example, with respect to plaintiff’s allegation that he could not use the “add to cart” function (Licea Decl. ¶ 7) , defendant declares that it fixed a broken slip link and an empty button. (Supp. Paulsen Decl. ¶ 23.) While plaintiff avers about missing alternative text, defendant’s evidence indicates that the website included necessary alternative text to navigate the website but excluded alternative text that would have rendered ineffective the communication to plaintiff. Further, defendant’s Director of Data and Technology claims that Rhone regularly conducts testing of the website for accessibility errors and that the website “is accessible to screen reader users by continuously incorporating accessibility features into its constantly changing Website.”  (Supp. Paulsen Decl. ¶¶ 6-7, 24.)  From this, a trier of fact could find that plaintiff experienced no accessibility barriers on May 4, 2021, notwithstanding his claims to the contrary.

For the foregoing reasons, defendant demonstrates a triable issue of material fact as to whether its website provided full and equal enjoyment to plaintiff.

C.     Non-ADA Cause of Action

The elements of an Unruh action based on a denial of full and equal accommodations in a business establishment for a non-ADA case are: (1) defendant denied or made a distinction that denied full and equal accommodations to plaintiff, (2) that a substantial motivating reason for defendant’s conduct was his perception of plaintiff’s disability, (3) plaintiff was harmed, and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060; Wilkins-Jones v. County of Alameda (N.D. Cal. 2012) 859 F.Supp.2d 1039, 1048, citing Civ. Code § 51(b).)

For the reasons stated above, defendant demonstrates a triable issue as to whether plaintiff was denied full and equal access to defendant’s website. (See Resp. to UMF 17-19.)  Thus, even if plaintiff were correct in his contention that defendant engaged in intentional discrimination (Mtn. at 26-27), plaintiff cannot prevail on this theory of liability as a matter of law.

Accordingly, plaintiff’s motion is DENIED.

II.                DEFENDANT RHONE APPAREL, INC.’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Luis Licea’s evidentiary objections are OVERRULED.

Defendant Rhone Apparel, Inc. moves for summary judgment on the ground that its website complies with all available Web Content Accessibility Guidelines (“WCAG”) and that it diligently audits and improves the accessibility of its website. (UMF 5-15.)

As discussed above, plaintiff avers that he experienced access barriers on the Rhone website on May 4, 2021, including the inability to “independently and efficiently browse the Website” or use the “add to car” button to purchase a product he purportedly wanted.  (Licea Decl. ¶¶ 7-8.)  Further, plaintiff’s expert Vashaun Jones identifies a number of purported problems with the website that do not comport with WCAG 2.1 Guidelines, which the expert claims were present during his inspection the Rhone website on February 18, 2022, and June 25, 2022.  (See 6/26/22 Jones Decl. ¶¶5-15 & Ex. A.)