Judge: Douglas W. Stern, Case: 22STCV41093, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV41093    Hearing Date: March 28, 2023    Dept: 68

Luis Licea vs. R.W. Selby & Co., Inc., 22STCV41093

MOVING PARTY:    Defendant R.W. Selby & Co., Inc

RESPONDING PARTY:      Plaintiff Luis Licea

(1) Demurrer and (2) Motion to Strike


A. Factual

Plaintiff is a visually impaired individual and a self-described “tester” who visits websites to check if they are accommodating for people who are visually impaired. Defendant is the owner of an apartment complex which has a website where potential renters can get information about the apartment complex and schedule a tour of the apartment complex.

Plaintiff filed this suit against Defendant after Plaintiff visited Defendant’s website and found that it had several problems, including missing alternative text for images, missing form labels, and empty headings. (Comp., ¶ 22.) These issues make it difficult for visually impaired individuals to use the website and find out information about Defendant’s apartment complex. (Comp., ¶23.) Defendant has not remedied these issues, even after Plaintiff brought them to Defendant’s attention. (Comp., ¶ 24.)

Plaintiff is requesting injunctive relief as well as damages, attorney’s fees, and pre-judgment interest. (Comp., Prayer for Relief.)

B. Procedural

This action was filed by Plaintiff on December 30, 2022. Defendant filed the Demurrer with Motion to Strike that is now before the Court on February 17, 2023. Plaintiff filed his opposition on March 15, 2023. Defendant filed a reply on March 22, 2023.

C. Judicial Notice

Plaintiff requested that the Court take judicial notice of several government documents and court cases. The Court takes judicial notice of the first two documents from the ADA website. The Court declines to take judicial notice of the unpublished decisions and settlement agreements which Plaintiff has included as Requests 3-11.

Defendant requested that the Court take judicial notice of a letter sent by Plaintiff’s counsel prior to filing the complaint. The Court declines to take judicial notice of this document.


A. The Demurrer

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1. Cause of Action for Violation of Unruh Civil Rights Act

Defendant demurs to Plaintiff’s cause of action on the basis that Plaintiff failed to plead a nexus between the website and any physical location and because Plaintiff’s claim for direct violation of the UCRA fails because he does not plead intentional discrimination.

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(b).) “A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA (Civ. Code, § 51(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 (SDCCU).)

a.            Intentional Discrimination

“Unless an Unruh Act claim is based on an ADA violation, the act requires a claimant to prove “‘intentional discrimination.’” 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.” Thus, absent an ADA violation, the Unruh Act requires allegations supporting “‘willful, affirmative misconduct’” with the specific intent “to accomplish discrimination on the basis of [a protected trait].” Although “evidence of disparate impact [may] be probative of intentional discrimination in some cases” under the Unruh Act, it cannot alone establish such intent.” (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036 (internal citations omitted).)

In this case, Plaintiff attempts to impute intentional discrimination onto Defendant’s failure to remedy the website after Plaintiff complained. As the Cot’n Wash Court found, that would not qualify for intentional discrimination because Defendant’s failure to address the disparate impact of its website on visually impaired individuals does not rise to the level of willful, affirmative misconduct sufficient to show intent. As such, Plaintiff has not sufficiently pled intentional discrimination.

b.            Violation of the ADA

Because Plaintiff has failed to plead intentional discrimination, the only other way Plaintiff could maintain his cause of action is if it states a violation of the ADA. An Unruh Act cause of action based on a violation of the ADA does not require proof of intentional discrimination. (See Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 673 [need not prove intent to establish Unruh Act claim based on ADA violation].)

To establish a Title III violation, a plaintiff must show: (1) a covered disability; (2) that “the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [the] disability.” (See SDCCU, supra, at p. 1060.)

There is conflicting case law on whether a website qualifies as a place of public accommodation. At least two courts have applied the nexus framework which Defendant references, meaning that there must be a nexus between the website and a physical place for the website to qualify as a place of public accommodation. (See SDCCU, supra, 50 Cal.App.5th 1048; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston).) In both of those cases, one involving a bank website and the other involving a restaurant website, the Courts found that there was a sufficient nexus between the website and a physical place: a bank and a restaurant. In Cot’n Wash, the Court found that a purely digital retail website is not a place of public accommodation. (Cot’n Wash, supra, 81 Cal.App.5th 1026.)

In this case, the website at issue is for an apartment complex. The apartment complex is a physical location. People can use the website to get information about the apartment complex and to schedule a tour of the apartments. (Demurrer at p. 1.) Based on the cases involving a bank and a restaurant, this would appear to be a sufficient next between a website and a physical location. One argument that Defendant makes is that because an apartment complex is not listed under the 12 categories of public accommodations in the ADA (41 USCA § 12182(a)), then it cannot be a public accommodation. However, this is a nonexclusive list and things not listed there may be public accommodations. (See SDCCU, supra, 50 Cal.App.5th at pp. 1060-1061.) An apartment complex could be a public accommodation for purposes of the ADA.

Accordingly, there is a sufficient nexus between the website and a physical location to allow Plaintiff to maintain a cause of action under the Unruh Civil Rights Act for violation of the ADA.

“Avail himself of Defendant’s goods and services as offered on Defendant’s Website”

Plaintiff alleges in paragraph 8 of the Complaint that he seeks to avail himself of the goods and services as offered on Defendant’s Website.  Defendant notes that Plaintiff has failed to allege the requisite intent to obtain the goods or services or facilities that are offered by Defendant – the rental of apartments.

“Put another way, the [Unruh Act] is ‘confined to discriminations against recipients of the “business establishment's ... goods, services or facilities.” ’ [Citation.] [Unruh Act] claims are thus ‘appropriate where the plaintiff was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship.’ ” (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149, 278 Cal.Rptr.3d 587, italics added.) For online businesses, the plaintiff must allege that “he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services. These requirements are sufficient to limit standing under [the Unruh Act] to persons with a concrete and actual interest that is not merely hypothetical or conjectural.” (White, supra, 7 Cal.5th at p. 1032, 250 Cal.Rptr.3d 770, 446 P.3d 276, italics added.)

Beyond the pleading stage, if a plaintiff wants to prevail on an Unruh 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.”  Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 306–307 [284 Cal.Rptr.3d 341, 347, 69 Cal.App.5th 299, 306–307], review denied (Dec. 22, 2021).  (Bold added.)

As alleged by Plaintiff, he is seeking the goods and services – apartment rental – that is available on the website.  The Court can not make a determination at this stage that Plaintiff can not prove his allegation that he was seeking the apartment rental services.

Defendant’s demurrer to this cause of action is OVERRULED.

IV. The Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

1. Damages and Injunctive Relief

Defendant argues that any references to injunctive relief should be stricken from Plaintiff’s complaint because Plaintiff has not pled facts sufficient to show intentional discrimination. However, Civ. Code § 52(a) states that “Whoever denies…or makes any discrimination or distinction contrary to Section 51…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…”

A violation of the ADA is discrimination contrary to Section 51. If Defendant is found to have violated the ADA, then Plaintiff could obtain damages. Further, Section 52(c) allows a Plaintiff to obtain preventative relief if a Defendant is found to have violated Section 51. Therefore, Plaintiff may request injunctive relief as part of his complaint.

Defendant also notes that there a limitations to the type of injunctive relief that the Plaintiff may obtain.  It argues that only “preventive relief” is authorized under section 52(c).  Since the statute allows for injunctive relief, the Court concludes that it is premature to determine that Plaintiff may not obtain an appropriate statutorily authorized injunction.  At the pleading stage where the contours of any injunction is ill-defined, it is possible that Plaintiff is entitled to an injunction that does not run afoul of the issue that Defendant notes.  The Court is not prepared to conclude based only on the allegations of the Complaint and the prayer that proper injunctive relief authorized by the statute (“preventative”) is not possible.  Therefore the Court shall not strike the prayer for injunctive relief simply because some of the verbiage might be construed as seeking a form of injunctive relief that is not authorized.  This may be addressed when there is a full record and the specific relief requested in light of that record is known.  The Motion to Strike is DENIED as to this matter.

2. Plaintiff’s References to Being a Tester

Defendant has requested that the Court strike Plaintiff’s references to being a tester. It is unclear why Plaintiff would place in his Complaint allegations that he is a “tester.”  It does not confer standing.  “… if a plaintiff wants to prevail on an Unruh 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.”  Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 306–307 [284 Cal.Rptr.3d 341, 347, 69 Cal.App.5th 299, 306–307], review denied (Dec. 22, 2021).

Hence, it appears that the claimed status of being a “tester” has no relevance to the claim asserted by Plaintiff.  The Motion to Strike the allegations regarding the status of Plaintiff as a “tester” is GRANTED.  Court will therefore strike the allegations in paragraph 8 at the end of the first sentence on line 22 to the end of that paragraph..

3. Miscellaneous Allegations

Defendant has asked the Court to strike the allegations of paragraph 5 regarding jurisdiction.  That is DENIED.

The Motion to Strike as to Paragraphs 30 and 31 relating to injunctive relief shall be DENIED.

Defendant’s Request to Reclassify the Action

Defendant has requested that the Court reclassify the action to being limited civil jurisdiction on the theory that the $4,000 listed in Civ. Code Section 52 is the maximum amount Plaintiff could recover. This is not the case. This is the statutory minimum damages for each violation of Section 52(a). A Plaintiff may be awarded more than $4,000 for an Unruh claim. Therefore, the total amount that Plaintiff recovers could be more $25,000.

In his opposition, Plaintiff throws in the argument that attorney’s fees could be included in the recoverable amount in order to meet the $25,000 threshold. (Opposition at p. 24.) However, attorney’s fees are not part of the $25,000 amount in in controversy. CCP § 85(a) states that a case is treated as limited jurisdiction if the following applies: “The amount in controversy does not exceed twenty-five thousand dollars ($25,000). As used in this section, “amount in controversy” means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorney’s fees, interest, and costs” (emphasis added). Thus, while Plaintiff may meet the $25,000 threshold in other respects, Plaintiff would not meet it based on recoverable attorney’s fees.

The Court denies Defendant’s request to reclassify the action.


1.            Defendant’s demurrer is OVERRULED.

2.            Defendant’s motion to strike is GRANTED IN PART.

3.            The Motion to reclassify the action as civil limited jurisdiction is DENIED.