Judge: Jon R. Takasugi, Case: 22STCV09691, Date: 2023-01-13 Tentative Ruling

Case Number: 22STCV09691    Hearing Date: January 13, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for a judgment on the pleadings is GRANTED.

            On 3/21/2022, Plaintiff Drew Hunthausen (Plaintiff) filed suit against Finchey Corporation of California dba Pacific BMW (Defendant or Pacific BMW) alleging a violation of the Unruh Act.

            Now, Defendant moves for a judgment on the pleadings.

Factual Background

Plaintiff is a blind individual. Plaintiff alleges that because of the allegedly missing alternative text and spacer images and empty links and forms, he and other blind or visually-impaired customers cannot "effectively brows[ e) for Defendant's auto dealership, amenities and services, privileges, advantages, and accommodations that exist online unlike sighted users." [Complaint ¶ 20).

Discussion

            Defendant argues that Plaintiff cannot establish standing to assert this claim because: (1) he does not allege facts which could show the specific barriers deprive Plaintiff full and fair enjoyment of or equal access to the dealership; (2) he does not allege facts could show bona fide intent; and (3) he does not allege facts that the dealer violated the ADA.

            The Court agrees.

            As to the first point, Plaintiff alleges a number of barriers on the website including spacer image missing alternative text, empty or missing label forms, or multiple form labels. (See Complaint ¶ 19.) However, Plaintiff does not allege any facts which could show how these alleged barriers denied his full and fair enjoyment. Plaintiff’s allegations do not indicate how any of these barriers materially impacted his ability to read the webpage and utilize the services. As such, on a practical level, it is not immediately clear how the alleged barriers impede the ability to schedule a test drive with friends and family.

Moreover, Plaintiff has not alleged any facts which could show how these issues impacted his ability to access the physical location. As other Courts have noted, there is a critical distinction “‘between an inability to use a website to gain information about a physical location and an inability to use a website that impedes access to enjoy a physical location,’ the former being “insufficient to state a claim.” (Strojnik v. Kapalua Land 28 Co. Ltd., (D. Haw. Sept. 25, 20 19), 20 19 WL 4684450, (9th Cir. 2020) aff d, 80 I F. App'x 53 1 at *21-22; see also Robles v. Domino’s Pizza, LLC (9th Cir. 2021) 913 F.3d 898,905.)

In Whitaker v. Tesla Motors, Inc. (9th Cir. 2021), 985 F.3d 1173, the plaintiff alleged that he went to a Tesla dealership and found that Tesla "failed to provide accessible service counters," that Whitaker "personally encountered" the inaccessible service counters, and that he was denied "full and equal access." The Ninth Circuit held that "[t]hese allegations do little more than recite the elements of an ADA claim, and fall short of putting Tesla on notice of how the counters prevented Whitaker from full and equal access to the Tesla facility." (Id. at p. 1177.)

Here, similarly, Plaintiff has not alleged facts could show how the specific barriers such as missing alternative text and spacer images and empty links and forms deprive Plaintiff of full and equal access to the goods and services of the dealership. As such, it is unclear how Plaintiff’s ability to experience a test drive at the physical location is impacted by the alleged barriers.

In opposition, Plaintiff cited Reed v. CVS Pharmacy, Inc., 2017 WL 4457508 (C.D. Cal. Oct. 3, 2017) and Brooks v. See’s Candies, Inc., 2021 WL 3602153 (E.D. Cal. Aug. 13, 2021), to show that a sufficient nexus exists here between the website and the physical location merely because the website expedites the experience of viewing cars at the dealership. While the Court finds these cases persuasive, given the Court’s conclusion below, it need not reach the question of whether or not these cases are sufficient to show a nexus exists here.

            As to the second point, for Plaintiff to prevail on an Unruh Act claim, he must show that he had a "bona fide intent" to avail himself of a good or service but was unable to due to “access barriers.” (White v. Square, Inc. (2019) 7 Cal.5th 19 1019, 1032; See also Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, review denied (Dec. 22, 2021)) (court held that to prevail on claim of discrimination under Unruh Act, plaintiff had to prove that she had bona fide intent to book room with hotel when she encountered problems in attempting to access its website with screen reader.)

            Here, Plaintiff has admitted that he does not possess a license to operate a motor vehicle from 2017 to the present and that Plaintiff has not owned, leased, borrowed, or had any service or maintenance performed on any motor vehicle from 2017 to the present. Rather, Plaintiff alleges that he was interested in accompanying friends or family on a test drive. However, this is not a “good” or “service” under the Unruh Act. (See Cal. Civil Code §§1802.1-1802.2.) The Unruh Act defines “Goods” and “Services” as:

“Goods” means tangible chattels bought for use primarily for personal, family or household purposes, including certificates or coupons exchangeable for such goods, and including goods which, at the time of the sale or subsequently are to be so affixed to real property as to become a part of such real property whether or not severable therefrom, but does not include any vehicle required to be registered under the Vehicle Code, nor any goods sold or leased with such a vehicle if sold under a contract governed by Section 2982 or leased under a contract governed by Section 2985.7…

“Services” means work, labor and services, for other than a commercial or business use, including services furnished in connection with the sale or repair of goods as defined in Section 1802.1 or furnished in connection with the repair of motor vehicles (except for service contracts as defined by subdivision (p) of Section 2981 which are sold in conjunction with the sale or lease of a vehicle required to be registered under the Vehicle Code) or in connection with the improvement of real property or the providing of insurance, but does not include the services of physicians or dentists, nor services for which the tariffs, rates, charges, costs or expenses, including in each instance the deferred payment price, are required by law to be filed with and approved by the federal government or any official, department, division, commission or agency of the United States.

            Here, Plaintiff does not allege that he had an intent to own, lease, rent, borrow or service a vehicle. Plaintiff attempts to resolve this issue by arguing that’s “[t]he mere fact that Plaintiff has not owned, leased, rented, or borrowed a car in the past or even in the present does not prove his intentions in the future” and that “Plaintiff was interested in experiencing a test drive with his friends or family members […] does not constitute an admission that Plaintiff has no interest in owning, leasing, renting or borrowing a car in the future.”  (Plaintiff’s Opp. at 11:22- 12:1). However, an intention in the future to one day lease or own a car is merely hypothetical/conjectural, and is insufficent to state a claim. (See White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032, limiting standing under the Unruh Act to persons with “a concrete and actual interest that is not conjectural.”) The experience of accompanying others on a test drive, unconnected to any underlying intent to own, lease, rent, or borrow the car, is not a good or service denied to Plaintiff within the meaning of the Unruh Act, and Plaintiff’s attempt to resolve this fact by stating that he may intend to rent or buy a car in the future is insufficient to confer standing on him at this time.  

            As to the third point, Plaintiff’s claim is based on an alleged violation of the WCAG 2.0 standard. (Complaint ¶ 15.) However, the Ninth Circuit recognized that compliance with WCAG is a remedy for violation of the ADA, not the basis for a violation of the ADA. As such, any alleged deviation from WCAG 2.0 - the only thing alleged in Plaintiffs Complaint - is not sufficient to state a claim for a violation of the ADA.

            Plaintiff will be afforded an opportunity to allege additional facts which could address the deficiencies identified.

            Based on the foregoing, Defendant’s motion for a judgment on the pleadings is granted.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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