Judge Daniel M. Crowley, Case Number: 23STCV14734, Date: 2023-12-11 Tentative Ruling

Defendant Castle Creek Properties, Inc.’s demurrer to Plaintiff Dominick Martin’s complaint is overruled as to the 1st cause of action.

Defendant Castle Creek Properties, Inc. (“Castle Creek”) (“Defendant”) demurs to Plaintiff Dominick Martin’s (“Martin”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pg. 1; C.C.P. §§430.10(e), (f); CRC, Rule 3.1320.) Defendant also moves to strike portions of the Complaint. (Notice of MTS, pgs. 2-2; C.C.P. §436.)

Plaintiff’s 11/28/23 request for judicial notice of “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://www.justice.gov/opa/pr/justice-department-issues-web-accessibility-guidance-underamericans-disabilities-act (last visited Nov. 13, 2023) and currently available for viewing at: https://www.ada.gov/resources/web-guidance/ (last visited Nov. 13, 2023) (P-RJN, Exh. 1), is granted.

Plaintiff’s 11/28/23 request for judicial notice of (1) 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, Doc. 118 at pgs. 7-12, 14 (C.D. Cal. Sept. 20, 2021); (2) Brief for the United States as Amicus Curiae Supporting Reversal in Marietta Memorial Hospital Employee Health Benefit Plan, et al. v. Davita Inc., et al., No. 20-1641, 2021 WL 6138201 (U.S. Dec. 23, 2021); (3) Minute Order filed on November 4, 2022 in Hunthausen v. Evans Hotels LLC, No. 37-2022-00012538-CU-CR-CTL (Cal. Super. Ct. S.D. Cty. Nov. 4, 2022) (Caietti, J.); and (4) Minute Order filed on November 28, 2022 in Mejico v. Don Roberto Jewelers, Inc., No. 30-2022-01266742-CU-CR-CJC (Cal. Super. Ct. Orange Cty. Nov. 28, 2022) (Vu, J.), is denied.

Plaintiff filed his operative Complaint on June 26, 2023, against Defendant, alleging a single cause of action for violations of the Unruh Civil Rights Act (Civ. Code §§51 et seq.).

This action arises out of Plaintiff’s several attempts to use and navigate Defendant’s website, and his denial of the full use and enjoyment of the facilities and services of the website as a result of accessibility barriers on the website, and therefore deterred Plaintiff from visiting Defendant’s California wine bar location. (Complaint ¶7.) Plaintiff alleges he is permanently blind and uses screen readers to access the internet and read website content. (Complaint ¶7.) Plaintiff alleges that he genuinely wants to avail himself of Defendant’s goods and services as offered on Defendant’s website, but he also has the dual motivation as a “tester,” and has filed multiple lawsuits against various operators of commercial websites under the Unruh Civil Rights Act as part of Plaintiff’s advocacy work on behalf of the civil rights of people with visual impairments. (Complaint ¶8.)

Plaintiff alleges on information and belief that Defendant is a Defendant owns and operates Rosenthal – The Malibu Estate Wine Bar and Patio located at 18741 Pacific Coast Highway, Malibu, California, and this location constitutes a place of public accommodation. (Complaint ¶9.) Plaintiff alleges Defendant’s location provides to the public important goods and/or services. (Complaint ¶9.) Plaintiff alleges Defendant’s location is a public accommodation within the definition of Title III of the ADA, 42 U.S.C. §12181(7), and likewise is a “business establishment” within the meaning of the Unruh Act, Civil Code §51(b). (Complaint ¶9.)

Plaintiff alleges Defendant also provides to the public its website, https://rosenthalestatewines.com/ (the “Website”). (Complaint ¶¶4, 10.) Plaintiff alleges the Website provides access to Defendant’s wine bar, including information concerning Defendant’s location, descriptions of its menus, amenities and services, hours, calendar of events, wine club, online store and many other benefits related to its facility and services. (Complaint ¶10.) Plaintiff alleges the Website is a public accommodation within the definition of Title III of the ADA, 42 U.S.C. §12181(7). (Complaint ¶10.)

Plaintiff alleges The Website’s barriers are pervasive and include, but are not limited to, the following: (1) missing alternative text which presents a problem because an image without alternative text results in an empty link; (2) image map area missing alternative text, which presents a problem because alternative text is not present for an image map area (hot spot); (3) empty or missing form labels which presents a problem because, if a form control does not have a properly associated text label, the function or purpose of that form control may not be presented to screen reader users; (4) multiple form labels, which presents a problem because a form control has more than one label associated with it; (5) empty links, which present a problem because a link contains no text; (6) broken slip link, which presents a problem because the target for the link does not exist or the link is not keyboard accessible; (7) broken Accessible Rich Internet Applications (“ARIA”) references, which presents a problem because an ARIA-labelled by or ARIA-described by reference exists, but the target for the reference does not exist; and (8) broken ARIA menu, which presents a problem because an ARIA menu does not contain required menu items. (Complaint ¶22.)

On September 5, 2023, Defendant filed the instant demurrer and accompanying motion to strike. On November 28, 2023, Plaintiff filed its oppositions. On December 4, 2023, Defendant filed its replies.

Defendant demurs on the basis that Plaintiff’s cause of action for violations of the Unruh Civil Rights Act fails to state facts sufficient to constitute causes of action against it and is uncertain, ambiguous, and unintelligible. (Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a).) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel’s declaration states he spoke to Plaintiffs’ counsel on August 10, 2023, addressing his client’s basis for demurring to the Complaint, and the parties were unable to come to an agreement concerning the issues he raised. (Decl. of Arnold ¶2.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41(a)(3).

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“The Unruh Act provides: ‘All persons within the jurisdiction of this state . . . no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.’ (Civ. Code, § 51, subd. (b).) ‘A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA (Civ. Code, § 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination.’” (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1035, review denied (Nov. 9, 2022), quoting Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.)

“Civil Code section 51, subdivision (f) states: ‘A violation of the right of any individual under the federal [ADA] shall also constitute a violation of this section.’ The ADA provides in pertinent part: ‘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 … operates a place of public accommodation.’ The ADA defines discrimination as ‘a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.’” (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1446.)

“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.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023; CACI 3060.)

Plaintiff sufficiently alleges he attempted to navigate Defendant’s Website on several occasions and has been denied the full use and enjoyment of the facilities and services of the Website as a result of the accessibility barriers of the website, which is sufficient to allege standing under the Unruh Act. (Complaint ¶7; White, 7 Cal.5th at pg. 1023.) An individual plaintiff has standing under the Unruh Act if he or she has been the victim of the defendant’s discriminatory act. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175.) Angelucci held that “Plaintiffs adequately alleged they had suffered an ‘invasion of legally protected interests’ sufficient to afford them an interest in pursuing their action vigorously.” (Id. at 175.) Here, Plaintiff has sufficiently alleged that he is a victim of Defendant’s discriminatory act by being denied the full use of the Website “despite several attempts to use and navigate the Website,” which resulted in a dignitary injury. (Complaint ¶7; Nicholls v. Holiday Panay Marina, L.P. (2009) 173 Cal.App.4th 966, 970 [“A broad interpretation of the [ADA] statute allows

the ADA to enhance self-autonomy and human dignity in day to day living.”]; Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011) 631 F.3d 939, 944 [“We now clarify that when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue. First, we hold that an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.”].)

Plaintiff sufficiently alleges a nexus between Defendant’s website and a brick-and-mortar store, Rosenthal – The Malibu Estate Wine Bar and Patio located at 18741 Pacific Coast Highway, Malibu, California, which is sufficient to meet California’s requirement for a place of public accommodation under Title III of the ADA, and a “business establishment” under the Unruh Act. (Complaint ¶¶9-10 [“The Website provides access to Defendant’s wine bar, including information concerning Defendant’s location, descriptions of its menus, amenities and services, hours, calendar of events, wine club, online store and many other benefits related to its facility and services.”]; Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905, cert. denied, 140 S. Ct. 122 (2019) [“Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants.”]; see Nicholls, 173 Cal.App.4th at pg. 970; PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-677 & n.25 [“The phrase ‘public accommodation’ is defined in terms of 12 extensive categories, which the legislative history indicates ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.”]; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 642-643 [“The ADA is a remedial statute and as such should be construed broadly to implement its fundamental purpose of eliminating discrimination against individuals with disabilities.”].)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action for violations of the Unruh Civil Rights Act is overruled.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)

Plaintiff’s cause of action is not so uncertain that Defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against it.

Defendant moves to strike the following portions from Plaintiff’s Complaint: (1) ¶31: “Plaintiff is also entitled to a preliminary and permanent injunction enjoining Defendant from violating the Unruh Act, Cal Civil Code § 51 et seq., and requiring Defendant to take the steps necessary to make the Website readily accessible to and usable by visually-impaired individuals”; (2) Prayer For Relief ¶2: “A preliminary and permanent injunction requiring Defendant to take the steps necessary to make the Website, https://rosenthalestatewines.com/ readily accessible to and usable by visually-impaired individuals, but hereby expressly limits the injunctive relief to require that Defendant expend no more $20,000 as the cost of injunctive relief”; and (3) ¶8: “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].” Harty v. Burlington Coat Factory of Penn., L.L.C., Civil Action No. 11-01923, 2011 WL 2415169, at *1 n.5 (E.D. Pa. June 16, 2011). Indeed, it is widely accepted that “testers” such as Plaintiff advance important public interests and should be “praised rather than vilified.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006). Plaintiff has filed multiple lawsuits against various operators of commercial websites under the Unruh Civil Rights Act as part of Plaintiff’s advocacy work on behalf of the civil rights of visually-impaired persons. Plaintiff intends to continue to engage in such advocacy work into the foreseeable future to ensure that Defendant’s commercial Website and others are fully and equally enjoyable to and usable by visually-impaired persons, including himself.”

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading[; or] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436.)

(c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:

(1) The signature of the officer, or, in the officer’s absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.

(3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.

Civil Code §3368 defines preventive relief as relief “given by prohibiting a party from doing that which ought not to be done.” (Civ. Code §3368.) Civil Code §3368 is preceded by Civil Code §3366 which provides: “Specific or preventive relief may be given as provided by the laws of this state.” (Civ. Code §3366.)

3. By declaring and determining the rights of parties, otherwise than by an award of damages.

Plaintiff’s Complaint states at ¶31: “Plaintiff is also entitled to a preliminary and permanent injunction enjoining Defendant from violating the Unruh Act, Cal Civil Code § 51 et seq., and requiring Defendant to take the steps necessary to make the Website readily accessible to and usable by visually-impaired individuals”; and at Prayer For Relief ¶2: “A preliminary and permanent injunction requiring Defendant to take the steps necessary to make the Website, https://rosenthalestatewines.com/ readily accessible to and usable by visually-impaired individuals, but hereby expressly limits the injunctive relief to require that Defendant expend no more $20,000 as the cost of injunctive relief.”

California Courts have characterized the Unruh Act as affording plaintiffs with injunctive relief without differentiating between preventive relief versus

specific (or mandatory) relief. (Thurston v. Omni Hotels Management Corp. (2021) 69 Cal. App. 5th 299, 306 n.11 [“the complainant may seek injunctive relief”], citing Civ. Code §52(c)(3); Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522, 535 [“In 1992, the Legislature amended the Unruh Civil Rights Act to specify that ‘[a] violation of the right of any individual under the Americans

with Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation of this section.’ The amendment was intended to allow persons injured by a violation of the ADA to seek the full range of remedies provided under the Unruh Civil Rights Act, including injunctive relief, actual damages (in some cases treble damages), and a minimum statutory award of $4,000 per violation.”], emphasis added and internal citations omitted); Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 655 [“[W]e find the trial court’s injunction mandating compliance with WCAG 2.0 efficient and well within the court’s competence to administer. The injunction is neither overbroad, uncertain, nor unconstitutional.”], emphasis added; Flowers v. Prasad (2015) 238 Cal.App.4th 930, 938 [“Civil Code section 52, which provides remedies for violations of section 51, authorizes a damages award of no less than $4,000 and injunctive relief.”], emphasis added.) Further, the California Supreme Court has expressly recognized that the Unruh Act was historically interpreted as allowing injunctive relief even when there was no express provision in the statutory language. (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 27 n.5 [“[a]lthough the Unruh Act makes no express provision for injunctive relief, that remedy as well as damages may be available to an aggrieved person.”].)

Here, Plaintiff seeks an injunction requiring defendant to affirmatively alter, or remediate, the Website to conform to Plaintiff’s demands including changing various aspects of the Website including text, links, and labels. (Complaint ¶22.) Plaintiff therefore seeks mandatory injunctive relief. Given that Defendant’s narrow interpretation of the injunctive relief available to address Unruh Act violations committed against Plaintiff would defeat the general purpose of the

Unruh Act to eradicate California business establishments’ discriminatory business practices and to provide Plaintiff with a remedy to “ensure the full enjoyment of the rights described in this section,” (Civ. Code § 52(c)(3)), the only tenable interpretation of subdivision (c)(3) of section 52 is a broad interpretation of the injunctive relief remedy. (White, 7 Cal. 5th at pg. 1025 [“courts must consider [the Unruh Act’s] broad remedial purpose and overarching goal of deterring discriminatory practices by businesses”].)

Plaintiff’s tester status supports and strengthens his likelihood of returning to the Website to ensure Defendant’s compliance with Title III of the ADA and the Unruh Act. The Eleventh Circuit’s decision in Houston v. Marod Supermarkets, Inc. is instructive. On the issue regarding the threat of future injury, Houston relied on: (1) the plaintiff’s ADA testing as a factor weighing in favor of the likelihood of his return to the location of the ADA violation for another test, (2) the plaintiff’s exposure to illegal conduct in the past; (3) the lack of remediation of the barriers, and (4) the fact that the plaintiff’s likelihood of suffering future injury was not contingent upon speculative events or events that were beyond the plaintiff’s control. (Houston v. Marod Supermarkets, Inc. (11th Cir. 2013) 733 F.3d 1323, 1336-1337, 1340.) Here, the Complaint sufficiently pleads a threat of a future dignitary injury that is “real and immediate,” based on Plaintiff’s several attempts to access the website. (Houston, 733 F.3d at 1337.) Given the threat of future injury, this supports the Complaint’s prayer for injunctive relief. Further, the Complaint alleges Plaintiff’s dual motivation for visiting the Website, which is not irrelevant to this action. (Complaint ¶8.)

Hon. Daniel M. Crowley

Judge of the Superior Court