Superior Court of California

County of Los Angeles

Department 78

ANDREW BARACCO,

GREINER’S CLOTHING,

PLAINTIFF ANDREW BARACCO’S MOTION FOR SUMMARY JUDGMENT

Plaintiff’s motion for summary judgment is GRANTED.

Plaintiff is to file and serve proposed judgment within five court days after the date of this order.

A nonappearance review date for the proposed judgment is set for February 29, 2024 at 8:30 a.m.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for violation of the Unruh Civil Rights Act. Plaintiff alleges that he is a visually and legally blind person who was unable to access Defendant Greiner’s Clothing’s website because it lacked alt-text or text equivalent graphics, had inaccessible forms, had inadequate prompting and labeling, denied keyboard access, and had other deficiencies.

PROCEDURAL HISTORY

On January 21, 2020, Plaintiff filed his Complaint against Defendant.

On August 12, 2022, Plaintiff filed this motion for summary judgment. The motion is unopposed.

DISCUSSION

Legal Standard

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc., section 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)   

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (p)(2).) On a plaintiff’s motion, the plaintiff must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (Id at p.845.) The plaintiff meets his burden of showing that there is no defense to a cause of action if he has proved each element on that cause of action. (Id at p.849.) The burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Id.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).) 

A party may move for summary adjudication of a legal issue, claim for damages other than punitive damages, an affirmative defense, or an issue of duty. (Code Civ. Proc., section 437c(t).

Analysis

Plaintiff moves for summary judgment on the grounds that Defendant has no defense to the cause of action for violation of the Unruh Civil Rights Act.

“A plaintiff can recover under the Unruh Civil Rights 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. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 (San Diego County Credit Union).) 

Websites alone are generally not places of public accommodation.  However, “most of the federal circuits and one California Court of Appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity’s website if there is a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities.”  (Id. at p. 1054; see also Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 (Thurston) [“We hold that including websites connected to a physical place of public accommodation [under Title III of the ADA] 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].)   

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).)  Discrimination is further defined as failure to take steps necessary to “ensure that no individual with a disability is excluded . . . because of the absence of auxiliary aids and services.”  (42 U.S.C. § 12182(b)(2)(A)(iii).)    

For an ADA violation, a plaintiff must plead and prove: “(1) a covered disability; (2) ‘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." (San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1060.)  

Here, Plaintiff alleges that Defendant violated the Unruh Civil Rights Act when it violated the ADA by maintaining a website that is inaccessible to Plaintiff. (Compl., ¶61.) Defendant operates a retail store, Greiners Clothing, which sells designer retail products and goods. (Compl., ¶4.) Customers use a website to access the goods and services available at Defendant’s brick-and-mortar locations. (Compl., ¶29.) Plaintiff alleges the website contains barriers that prevent free and full use by visually impaired persons using keyboards and screen reading software. (Compl., ¶39.)

Plaintiff’s disability

The ADA defines “disability” as a physical or mental impairment that substantially limits one or more of the major life activities, among other definitions. (42 U.S.C. § 12102(2).)

Here, Plaintiff testifies that he is legally blind. (Baracco Decl., ¶2.) The first element of an ADA violation is met because he has a physical impairment. It is reasonable to infer that blindness substantially limits life activities that require the ability to see. 

Defendant’s operation of a public accommodation

The ADA definition of public accommodation expressly includes clothing stores.  (42 U.S.C § 12181(7)(E).) 

Here, Defendant owned and operated two retail clothing stores located in Florida and California. (Motion, Exh. D.) The second element of an ADA violation is met because clothing stores are public accommodations as defined by the ADA.

Whether Plaintiff was denied a public accommodation

Plaintiff testifies that in September 2019, he was interested in visiting the store to order a custom suit. (Baracco Decl., ¶4.) When he used his screen reader on Defendant’s website, he could not identify the masks on sale on the website because they were insufficiently identified, and labels were presented in a graphic visual format. (Baracco Decl., ¶11.) Plaintiff also became interested in Defendant’s cloth masks and attempted to access the website at least seven times between January 2020 and June 2020 to determine whether the website was still inaccessible. (Id., ¶9.) However, Defendant had not made any improvements to the website and Plaintiff could not determine which masks were available to order by telephone or email. (Id.)

Plaintiff’s expert, Robert Pool, testifies that Defendant’s website contains problems with heading encoding which would prevent visually impaired users from obtaining information from the website. (Pool Decl., ¶35.) Additionally, the website fails to offer a mechanism allowing the user to bypass blocks of the same content from one page to another. (Id., ¶36.) Pool also notes deficiencies in the landmarks usually used to direct visually impaired users to common places where information may be found on a website, unnamed footers, graphic links containing no text to signal where a link will lead, button menus that are not accessible to the visually impaired, and many other deficiencies. (Id., ¶¶34-46.) 

Because Plaintiff was unable to find information about ordering a suit or mask from Defendant’s business, Plaintiff was denied the use of a public accommodation, Defendant’s services as a clothing store, because of his disability.

Nexus

A plaintiff sufficiently shows a nexus between the website and the physical facility if the site “ ‘connect[s] customers to the goods and services of [the defendant’s] physical’ place.  (San Diego County Credit Union, supra, 50 Cal.App.5th 1048, 1067.)  Thus, it was sufficient to allege that the site permitted the plaintiff to “research and prepare” the defendant’s products and services “before going to the physical facility,” which would provide him “full and equal access to the entity’s offerings.”  (Id. at p. 1069.)  

Here, Plaintiff’s evidence also shows that Defendant’s website contains information about brands, collections, types, appearances, and styles of goods that Defendant sells at its physical facility. (Bowers depo., 39:7-17, 40:12-20. 29:15-25.) Customers use this information to obtain information about the facilities’ operating hours, among other information. (Id.) The website also displayed information about offers on gift cards and masks which a customer could read about online before buying the products in the physical store. (Id.) Customers could also choose products based on what they saw on the website. (Id.) Based on this evidence, a nexus exists between the website and the physical store here because customers, including Plaintiff, used the website to prepare and research products and offers before going to the physical store.

Plaintiff’s evidence satisfies all three elements of a violation of the Unruh Civil Rights Act arising from a violation of the ADA. Therefore, Plaintiff meets its burden of proving all elements of his claim. It does not appear from the evidence that Defendant has a defense. Defendant did not oppose this motion and therefore fails to meet its burden of showing a triable issue of material fact remains over whether Defendant’s website violated the ADA. 

Injunctive Relief

Plaintiff also argues that he is entitled to injunctive relief under the ADA and the Unruh Act. Specifically, Plaintiff request that Defendant be compelled to comply with at least the latest version of the Web Content Accessibility Guidelines (“WCAG”).

Under Civil Code section 52, subdivision (c)(3), any person aggrieved by the discriminatory conduct may bring a civil action seeking an injunction.  (See also Thurston, supra, 39 Cal.App.5th at pp. 652-653; 42 U.S.C. § 12188, subd. (a)(2).)  Other courts have held that injunctive relief pursuant to the WCAG is appropriate.  (San Diego County Credit Union, supra, 50 Cal.App.5th at pp. 1073-1074; Robles v. Domino's Pizza, LLC¿(9th Cir. 2019) 913 F.3d 898, 902, n.1 [“the [DOJ] has required ADA-covered entities to comply with WCAG 2.0 level AA (which incorporates level A) in many consent decrees and settlement agreements in which the United States has been a party”]; Redick v. PP Retail USA, LLC¿(C.D.Cal. June 9, 2022, No. CV 21-06096 RGK (SKx)) 2022 U.S.Dist.Lexis 135765, *7-8 [“Because Plaintiff encountered website barriers that prevented her from full and equal access to Defendant’s Business, she has standing to seek a Court order requiring Defendant to implement a website accessibility policy that substantially conforms with WCAG 2.1 Level AA guidelines”]; Rosales v. Indivest, Inc.¿(C.D.Cal. Mar. 4, 2022, No. 2:21-CV-02195-AB (PVCx)) 2022 U.S.Dist.Lexis 110623, *17-18; Mason v. Aldea Design, Inc.¿(C.D.Cal. Jan. 6, 2022, No. 2:21-cv-07823-SB-PVC) 2022 U.S.Dist.Lexis 109566, *10 [“District courts have since issued injunctions ordering defendants to conform their websites with WCAG 2.1, the latest version of the guidelines”].) 

Here, because Plaintiff proved the elements of his claim for a violation of the ADA and the Unruh Civil Rights Act, he is entitled to injunctive relief.

Civil Penalties 

Plaintiff also argues that he is entitled to recover damages.

Federal courts, usually in the context of deciding the amount in controversy for motions to remand, have held that $4,000 is the maximum penalty, regardless of how many times a plaintiff has visited a defendant’s website.  (Licea v. Rugs.com, LLC (C.D. Cal., Sept. 14, 2021, No. 2:21-CV-05308-AB-GJS) 2021 WL 4190635, at *3 [finding it to be unreasonable to conclude that “Plaintiff would recover 3 penalties for visiting the website 3 times]; Martin v. Container Store, Inc. (C.D. Cal. 2022) 601 F.Supp.3d 614, 617 [“there is nothing in Plaintiff’s complaint that would suggest that Plaintiff encountered ‘new access barriers’ each time he visited the Website,” thus precluding multiple $4,000 penalties]; see also Robles v. Domino's Pizza LLC (C.D. Cal., June 23, 2021, No. CV 16-6599 JGB (EX)) 2021 WL 2945562, at *10 [granting plaintiff’s motion for summary judgment, but only granting $4,000 in penalties because plaintiff “alleged a single overarching violation: Defendant maintained a website that screen readers cannot read . . . each of Plaintiff’s individual visits to the website encountered the same barrier and therefore the same violation”].) 

Here, Plaintiff alleges that he encountered barriers on at least fifteen occasions each time he attempted to view the contents of the subject website. (Baracco Decl., ¶5-16.) However, it would be unreasonable to award Plaintiff $4,000 in damages for 15 visits. Like the plaintiff in Licea, there is no evidence that Plaintiff encountered new access barriers every time he visited the website. Rather, Plaintiff testifies that he checked the website seven times between January 2020 and June 2022 to determine whether the website was made accessible. (Baracco Decl., ¶9.) However, there is no evidence that Plaintiff could have reasonably expected the website to have changed in that time. Given the evidence available, the Court finds that $4,000 in penalties for a single overarching violation is reasonable here.

DATED:  February 7, 2024

______________________________

Hon. Jill Feeney

Judge of the Superior Court