Judge Gail Killefer, Case 22STCV20350 2023-01-31 Tentative Ruling

TENTATIVE: Defendant’s demurrer is sustained. Plaintiff is given 20 days leave to amend the complaint. Defendant is to give notice.

This action arises in connection with a website operated by Sherwood Management Co, Inc. (“Defendant”). According to Rusty Rendon (“Plaintiff”), Defendant owned the Daniels Jewelers website at the domain https://www.danielsjewelers.com/ (the “Website”). Plaintiff is permanently blind and relies on screen readers in order to access the internet and read website content. Plaintiff alleges that he attempted to access the Website and has been denied full enjoyment due to several inaccessibility errors. Specifically, Plaintiff alleges the Website had several missing or empty labels or texts. As a result, Plaintiff was deterred from further use of the Website.

Plaintiff requests judicial notice of the following in support of his opposition:

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/webguidance/ (Exhibit 1)

2. Press Release dated March 18, 2022 regarding the “Guidance on Web Accessibility and the ADA” published on March 18, 2022 (Exhibit 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 (Exhibit 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. Mass. May 15, 2012) (Exhibit 4)

5. Brief for the United States as Amicus Curiae in Magee v. Coca-Cola Refreshments USA, Inc., No. 16-668, 2017 WL 3085074, at pgs. 7-13, 15-17, 20-22 (U.S. July 19, 2017) (Exhibit 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 (C.D. Cal. Sept. 20, 2021) (Exhibit 6)

7. The consent decree entered in National Fed’n of the Blind, et al. v. HRB Digital LLC, et al., No. 1:13-cv-10799-GAO, Consent Decree [ECF #60 at pg. 5] (D. Mass. Mar. 24, 2014) (the “Consent Decree”) (Exhibit 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 (Exhibit 8)

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

10. Settlement Agt. Between the United States of America and edX Inc., DJ #202-36-255, ¶ 18(a), dated Apr. 2, 2015 (Exhibit 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 (Exhibit 11)

Plaintiff’s request is granted. The existence and legal significance of these documents is a proper matter for judicial notice. (Evidence Code § 452(h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

The¿Unruh¿Act provides that all persons are entitled “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever,” “no matter what their disability . . .” or other characteristics. (Civ. Code § 51(b).) Under the¿Unruh¿Act, anyone who “denies, aids, or incites a denial, or makes any discrimination or distinction” contrary to the¿Unruh¿Act is liable for damages. (Civ. Code § 51(a).)¿ “California’s Unruh Civil Rights Act provides: ‘All persons within the jurisdiction of this state are free and equal and 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 violation of any individual right under the Federal Americans with Disabilities Act (“ADA”) is also a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under the ADA, “[n]o 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).)

Under the ADA, a place of public accommodation expressly includes establishments that serve food or drink. (42 U.S.C. § 12181(7)(B).) A website, on the other hand, is not identified in any of the statutory categories of the ADA. (Martinez v. San Diego County Credit Union, supra, 50 Cal.App.5th 1048, 1060.) Under the nexus theory recently adopted by California courts of appeal, “websites are covered by the ADA only if there is a nexus between the websites and access to a physical place of public accommodation. [Citation.]” (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 640-41.) “[D]iscrimination occurring ‘offsite’ violates the ADA if it prevents disabled individuals from enjoying services a defendant offers from a physical place of public accommodation.” (Id.; see also Martinez v. San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1067 [agreeing with the nexus theory standard and stating it “requires a court to focus on the connection between the website and the goods and services offered by the defendant”].)

Defendant contends that Plaintiff’s claims for violation of the Unruh Act fail because the Complaint fails to allege a sufficient nexus to a physical place of public accommodation. (Dem., 6-7; citing Robles v. Domino’s Pizza, LLC, (9th Cir. 2019) 913 F.3d 898, 905.; Weyer v. Twentieth Century Fox Film Corp., (9th Cir. 2000) 198 F.3d 1104, 1115; Thurston, supra, 39 Cal.App.5th at 640-641; Martinez, supra, 50 Cal.App.5th at 1067.) Defendant contends the Complaint fails to allege such a nexus:

“rather than plead how Plaintiff was prevented from accessing the services of the physical location, he only alleges that he was ‘hindered from effectively browsing for Defendant’s products, amenities and services, privileges, advantages, and accommodations that exist online. . .’” (Dem., 8; citing Complaint ¶23.)

Defendant, in the alternative, contends the Complaint otherwise fails to sufficiently allege a claim for intentional discrimination under the Unruh Act as “Plaintiff has alleged no facts to show that Defendant intended to discriminate against people with disabilities or blind persons,” correctly explaining that a facially neutral policy is not actionable under the Unruh Act. (Dem., 9-10; citing Turner v. Ass’n of Am. Med. Colleges, (2008) 167 Cal. App. 4th 1401, 1408, as modified on denial of reh’g; Belton v. Comcast Cable Holdings, LLC, (2007) 151 Cal. App.4th 1224, 1237.)

“Plaintiff fails to allege why Defendant would know of any alleged ‘barriers,’ whether he purportedly ‘notified’ Defendant of the ‘discrimination such barriers cause,’ or how Defendant’s actions constitute willful, affirmative misconduct.” (Dem., 10.)

Defendant further contends Plaintiff has failed to sufficiently allege he was a bona fide patron of the business, as the Complaint “does not plead what services he intended to use on Defendant’s Website to access the goods of stores, what specific item he intended purchase through the Website when he visited the Website, and how he was prevented from engaging in that purchase.” (Dem., 10-11.)

Lastly, Defendant contends Plaintiff fails to sufficiently plead “with particularity” the injury he sustained,

“Plaintiff does not identify any particular image that lacks alternative text, the specific URL on which he encountered it, the date he contends he encountered it, or the service that he claims he was denied access to because of the missing text. The same problems exist with respect to each category of access barriers he lists in Compl., ¶ 22. Without more specific information, Defendant is forced to speculate as to which image, button, or link among thousands caused his problems on the Website.” (Dem., 11; citing Complaint ¶22.)

Defendant explains the ADA “does not recognize an ‘informational’ or ‘dignitary injury’ in screen-reader cases.” (Dem., 12; citing Gomez v. Tribecca, Inc., No. CV20-06894 DSF (AFMx), 2022 U.S. Dist. LEXIS 84695, at *11 (C.D. Cal. May 10, 2022); Gomez v. Gates Estates, Inc., No. C 21-7147 WHA, 2022 U.S. Dist. LEXIS 27266, at *10 (N.D. Cal. Feb. 15, 2022).)

In opposition, Plaintiff first contends the ADA’s definition of places of public accommodation is broad and cites to portions of the legislative record to show an intent to “adapt” the ADA to new technologies. (Opposition, 9-11.) Plaintiff also cites Robles to concede liability under the ADA may be imposed upon a sufficient showing of a nexus to a public place of accommodation. (Opp., 11-12.) Plaintiff then contends a sufficient nexus is shown here as the Website includes a location locator, description of products and services, and other benefits related to Defendant’s facilities. (Opp., 13; citing Complaint ¶¶9-13.)

Next, Plaintiff contends “this Court is required to assume as true” the Complaint’s allegations regarding Defendant’s intentional discrimination against Plaintiff. (Opp., 14.) The court disagrees with Plaintiff’s instruction as this court does not assume as true legal conclusions or other conclusory claims at the demurrer stage. A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Plaintiff refers to the Complaint’s allegations regarding Defendant’s knowledge of the Website’s alleged accessibility problems, and their alleged failure to address these barriers. (Opp., 14-15.) Plaintiff then argues any reliance on Martinez v. Cot’N Wash, Inc., 81 Cal. App. 5th 1026 (2022), rev. denied, No. S276363 (2022) is misplaced as the ruling is “poorly reasoned” for failing to recognize proxy discrimination. (Opp., 15.) Plaintiff then defines proxy discrimination for this court, but fails to explain, or provide any guiding authority, why Martinez was poorly reasoned as he concludes.

Plaintiff further contends the Complaint alleges Plaintiff seeks to avail himself of Defendant’s business, and therefore Plaintiff’s intent cannot be decided as a matter of law at this demurrer stage. (Opp., 16-20.) Lastly, Plaintiff argues the pleadings are alleged with sufficient particularly as they “are tailored to Defendant’s Website,” and sufficiently plead requests for damages under the Unruh Act. (Opp., 21-22.)

In reply, Defendant contends the Complaint fails to show Plaintiff intended to utilize services or purchase goods from Defendant’s jewelry store, to have standing under the Unruh Act. (Reply, 3.) Defendant further explains its contention that Plaintiff “must allege how any alleged incompatibility with [screen reading software] somehow impeded his ability to access Defendant’s physical location.” (Reply, 4.) Lastly, Defendant contends Plaintiff fails to identify “even one image lacking alt-text which impeded his ability to access Defendant’s physical location.” (Reply, 4-5.) The court agrees.

A review of Plaintiff’s Complaint shows conclusory claims regarding Defendant’s intentional discrimination, the nexus to Defendant’s physical places of accommodations, how any alleged missing form labels or alternative texts constitute a denial of goods/services or discrimination, and how Plaintiff was injured as a result. (Complaint ¶¶10-12, 20-24, 28-32.) While the Complaint alleges “Defendant’s policy and practice to deny blind users, including Plaintiff, equal enjoyment of and access to the Website,” the court does not assume such strongly conclusory claims to be true at the demurrer stage. To do so would allow pleadings with scant factual allegations to defeat a demurrer by merely introducing strongly worded legal conclusions; this court does not intend on changing a pivotal stage of the litigation process in California.

For these reasons, the court finds the cause of action to be insufficiently pled. Plaintiff includes few factual allegations to establish an Unruh Act claim for violation of the ADA.

Defendant’s demurrer is sustained. Plaintiff is given 20 days leave to amend. Defendant is to give notice.

[1] Defendant submits the declaration of its counsel Matthew W. Arnold (“Arnold”) to demonstrate compliance with statutory meet and confer requirements. Arnold attests that on November 8, 2022, the parties met and conferred telephonically regarding the arguments raised in the instant demurrer and were unable to reach an agreement. (Demurrer, ii.) This is sufficient for purposes of CCP § 430.41.