Judge Kerry Bensinger, Case Number: 23STCV15264, Date: 2023-12-13 Tentative Ruling

This is a discrimination case involving website accessibility. Plaintiff, Drew Hunthausen, is a blind individual who requires screen reading software to read website content and access the content. Defendant, Johnny Was, LLC, owns and operates clothing store locations in California, including a store in Manhattan Beach, California. Defendant has a public website which provides access to Defendant’s array of services, including a location locator, description of its products, and amenities, among other things. Plaintiff claims the website is maintained in such a way that there are numerous access barriers that prevent Plaintiff, and other blind and visually-impaired individuals, from gaining equal access to the website. Plaintiff further claims that this constitutes a violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq. (“ADA”) and the Unruh Civil Rights Act, California Civil Code §§ 51, et seq. (“Unruh”).

On June 29, 2023, Plaintiff filed a Complaint against Defendant for Violation of the Unruh Act. Plaintiff seeks injunctive relief, statutory damages, attorney’s fees, and costs.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Plaintiff requests judicial notice of two documents: (1) the “Guidance on Web Accessibility and the ADA” which is published on the United States Department of Justice’s official website, and (2) the Statement of Interest of the United States of America in Vargas, et al. v. Quest Diagnostics Clinical Labs, Inc., et al. (C.D. Cal. Sept. 20, 2021) Case No. 2:19-cv-08108-DMG-MRW, Doc. 118 at pgs. 7-12, 14.

In its Reply, Defendant requests judicial notice of Plaintiff’s complaint filed in Brooks v. See's Candies, Inc. (C.D. Cal, June 8, 2020) No. 2:20-CV01236-MCE-DB and the order dismissing Plaintiff’s complaint in that matter.

Because the Court does not rely on these documents in the disposition of this demurrer, the Court does not rule on the parties’ requests for judicial notice.

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b); see Civ. Code, § 52.) Moreover, a violation of the ADA also qualifies as a violation of Unruh. (Civ. Code, § 51, subd. (f).)

To state a cause of action for violation of the Unruh Act, a plaintiff must show that: (1) defendant denied, aided or incited a denial of or discriminated against plaintiff with respect to full and equal accommodations, advantages, facilities, privileges, or services; (2) the substantial motivating reason for defendant’s conduct was due to its perception of an actionable characteristic; (3) the actionable characteristic was a substantial motivating reason for defendant’s conduct; and (4) defendant was a substantial factor in causing plaintiff’s harm. (CACI No. 3060.) Importantly, “[a] plaintiff who establishes a violation of the ADA . . . need not prove intentional discrimination in order to obtain damages under section 52.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665.) On the other hand, a plaintiff establishing an Unruh violation that is not also an ADA violation must nevertheless establish that the discrimination was intentional. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172; see Long v. Playboy Enterprises Intern., Inc. (2014) 565 Fed.Appx. 646, 647-648 [observing that the Munson Court’s holding did not disturb the requirement that a non-ADA Unruh claim be based on intentional discrimination].)

Additionally, the plaintiff must establish bona fide intent to use the business’s services. (White v. Square (2019) 7 Cal.5th 1019, 1032; Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, 309.)

Defendant argues Plaintiff’s Unruh Act violation claim fails, in part, for three reasons: (1) the Complaint does not allege a nexus between Defendant’s website and denial of access to Defendant’s brick-and-mortar location; (2) that Defendant committed “willful and affirmative” misconduct; (3) Plaintiff has not alleged sufficient facts identifying the specific deficiencies on Defendant’s website; and (4) Plaintiff lacks standing. The Court addresses each argument in turn.

By its terms, the Unruh Act applies only to “business establishments.” (Civ. Code, § 51.) Recent California cases have clarified that this concept is broader than the concept of “places of public accommodation” as used in the ADA. Specifically, in California, a website, that is, a business whose offerings are made entirely by way of an internet connection and one’s own computer or device, may qualify as a business establishment under Unruh. (See White, supra, 7 Cal.5th at p. 1023 [analyzing issue of standing and holding that “visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store”]; id. at p 1027 [“The case before us involves a plaintiff who neither paid a fee nor requested equal treatment before leaving the business establishment – in this case, a website, not a brick-and-mortar vendor”]; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th, 634-644 [observing in express dicta that “[e]xcluding websites just because they are not built of brick-and-mortar runs counter to the purpose of the statute”].) Published federal cases also indicate that an online store where goods are sold can qualify as its own business establishment under Unruh without any requirement of a nexus to physical store. (See, e.g., National Fed’n of the Blind v. Target Corp. (N.D. Cal. 2007) 486 F.Supp.2d 1022, 1056.)

Here, the Complaint indicates that Defendant owns and operates clothing store locations in California and provides a public Website. The Website provides access to Defendant’s array of services, including a location locator for its clothing store locations, descriptions of its products, amenities, and services. (Complaint, ¶¶ 9-10.) At the pleading stage, and especially in light of White, supra, this is sufficient to plead Defendant’s status as a business establishment as defined in the Unruh Act.

If a claim is based on direct violations of Unruh, the plaintiff must plead and prove that the violations were intentional. (Long v. Playboy Enterprises Intern., Inc. (2014) 565 Fed.Appx. 646, 647-648.) Defendant argues that Plaintiff has not pled facts to support the requisite intent. The Complaint alleges, in relevant part:

Defendant’s actions constitute intentional discrimination against Plaintiff on the basis of a disability in violation of the Unruh Act because Defendant has constructed a Website that is inaccessible to Plaintiff, knowingly maintains the Website in this inaccessible form, and has failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause.

By alleging that Defendant did not correct the barriers after being notified about the discriminatory nature of the barriers, Plaintiff has pled knowledge of the access problem sufficiently for the pleading stage. This, in turn, suffices for pleading Defendant’s intent. The allegations are sufficient to place Defendant on notice of Plaintiff’s theory of intent: that Defendant continued to offer a non-compliant website even after learning about the existing barriers. (See Ruiz v. Musclewood Inv. Props., LLC (2018) 28 Cal.App.5th 15, 22 [in Disabled Persons Act claim, knowledge of defects along with lack of action to rectify in response to an attempt to obtain corrective action, may permit an inference of intent].)

Finally, Defendant argues that the Complaint does not allege specific deficiencies on Defendant’s website which prevented access. Not so. The Complaint alleges that:

The Website’s barriers are pervasive and include, but are not limited to, the following: (1) Missing alternative text which presents a problem because an image without alternative text results in an empty link. Alternative Text is invisible code embedded beneath a graphical image on a website. Web accessibility requires that Alternative Text be coded with each picture so that a screen reader can speak the Alternative Text where a sighted user sees pictures. Alternative Text does not change the visual presentation, but instead generates a text box that will pop-up when the mouse moves over the picture. The lack of Alternative Text on these graphics prevents screen readers from accurately vocalizing a description of the graphics; (2) Empty or missing form labels which presents a problem because, if a form control does not have a properly associated text label, the function or purpose of that form control may not be presented to screen reader users. Form labels provide visible descriptions and larger clickable targets for form controls; and (3) Empty links, which present a problem because a link contains no text. If a link contains no text, the function or purpose of the link will not be presented to the user. This can introduce confusion for keyboard and screen reader users.

Here, the Complaint provides multiple examples of specific deficiencies located within Defendant’s websites as well as the explanation as to why those deficiencies infringe on Plaintiff’s right to accessibility. (See Complaint ¶¶ 21, 23.) Accordingly, Plaintiff has sufficiently alleged specific deficiencies within Defendant’s websites.

Defendant argues the Complaint does not sufficiently allege that Plaintiff has Article III^{^[1]} standing to maintain his ADA claim under Unruh. Defendant’s argument is misplaced. Plaintiff is pursuing a violation of the Unruh Act, a California statute, and has proceeded in state court. Under well-established precedent, Article III standing is required to invoke the jurisdiction of a federal court. “We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or . . . a federal statute.” (Asarco, Inc. v. Kadish (1989) 490 U.S. 605, 617.) Simply put, there is no authority for the proposition that a plaintiff must establish Article III standing to maintain an Unruh claim in a California state court just because the Unruh claim is based on a violation of federal law. Article III does not constrain this Court.

Moreover, Plaintiff sufficiently alleges standing under Unruh. “Standing under the Unruh Civil Rights Act is broad.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118, 1127.) “[A] plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175.) “A person who visits a business’s website with intent to use its services and encounters terms or conditions that exclude the person from full and equal access to its services has standing under the Unruh Civil Rights Act, with no further requirement that the person enter into an agreement or transaction with the business.” (White, 7 Cal.5th at pp. 1032–33.) Here, the Complaint sufficiently alleges Plaintiff’s intention to use Defendant’s services. (See Complaint, ¶¶ 23, 24,)

Defendant argues that Plaintiff must allege having a bona fide intent to use Defendant’s services. For this proposition, Defendant cites Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299. This case is unavailing. Thurston explicitly states that, “[b]eyond the pleading stage, if a plaintiff wants to prevail on an Unruh Civil Rights 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. [Citation.]” (Thurston, 69 Cal.App.5th at p. 307, emphasis added, citation omitted.) This matter is at the pleading stage. As such, Plaintiff is not required to allege bona fide intent.

The Complaint states a claim for an Unruh violation. Because the demurrer is overruled on this basis, at this time the Court need not and does not reach the question whether the facts also support an ADA violation (and therefore a subdivision (f) Unruh violation).

Kerry Bensinger

Judge of the Superior Court

[1] To establish Article III standing, a plaintiff must show having suffered an (1) injury-in-fact, (2) that is causally connected to the Defendant’s challenged conduct, and (3) which is likely to be “redressed by a favorable decision.” (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560-61.)