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
I.
BACKGROUND
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 The Court declines to take judicial notice of the unpublished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.
II. ANALYSIS
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.
III. ORDER
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.