Judge: Loren G. Freestone, Case: 37-2023-00023675-CU-CR-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00023675-CU-CR-CTL MEJICO VS LA JOLLA NOBEL LP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant La Jolla Nobel LP's demurrer to Plaintiff Brittney Mejico's complaint is OVERRULED.

La Jolla Nobel's motion to strike portions of the complaint is DENIED.

La Jolla Nobel's motion to reclassify the case as a limited civil case is DENIED.

Preliminary Matters La Jolla Nobel's unopposed request for judicial notice of state statutes and the 'Contact Us' page of its website is granted.

Mejico's unopposed request for judicial notice the Department of Justice's 'Guidance on Web Accessibility and the ADA' and two briefs filed on behalf of the United States is granted.

Demurrer The complaint alleges a single cause of action for violation of the Unruh Civil Rights Act (Civil Code, § 51).

'A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA; 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.) A plaintiff pursuing an ADA theory does not need to prove intentional discrimination. (See generally Munson v. Del Taco Inc. (2009) 46 Cal.4th 661.) La Jolla Nobel demurs on the ground that Mejico has failed to sufficiently allege either a violation of the ADA or intentional discrimination. For the reasons set forth below, Mejico has sufficiently alleged a violation of the ADA, and therefore it is unnecessary to reach La Jolla Nobel's argument regarding intentional discrimination. (See Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856, fn.

14 [a demurrer must be overruled a claim is viable under at least one theory].) Title III of the ADA prohibits discrimination based on a disability with respect to a 'place of public accommodation.' (42 U.S.C. § 12182(a).) A standalone website is not a place of public Calendar No.: Event ID:  TENTATIVE RULINGS

3014430  45 CASE NUMBER: CASE TITLE:  MEJICO VS LA JOLLA NOBEL LP [IMAGED]  37-2023-00023675-CU-CR-CTL accommodation. (See Martin v. Thi E-Commerce, LLC (2023) 95 Cal.App.5th 521, 528–538; Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1039–1053.) However, under the 'nexus theory,' 'liability can attach if the plaintiff shows a connection between the alleged disability discrimination on a website and the plaintiff's ability to access and/or enjoy the benefits of the entity's physical location.' (See San Diego County Credit Union, supra, 50 Cal.App.5th at pp. 1059–1066; accord Thurston v. Midvale Corp.

(2019) 39 Cal.App.5th 634, 640–646.) There is a sufficient nexus 'if the facts show the website connects customers to the goods and services of the defendant's physical place.' (San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1067.) For example, there can be a nexus if a website helps customers find the physical location, provides descriptions of offered services, and facilitates requests for those services. (See id. at pp. 1067–1071.) La Jolla Nobel argues that its website is not a place of public accommodation because even though it is connected to a physical location (its apartment complex), the physical location itself is not a place of public accommodation. It relies on Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, which held that the ADA 'does not apply to apartments and condominiums.' (Id. at p. 1553.) However, when there is both a commercial office that is open to the general public and residential areas that are not open to the general public, 'it is appropriate to consider the particular area in question' in determining whether the ADA applies. (See Coronado v. Cobblestone Village Community Rentals L.P.

(2008) 163 Cal.App.4th 831, 851, overruled on other grounds.) In other words, 'commercial real estate open to the public qualifies as a public accommodation even though it is a part of a residence or residential development.' (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1100.) Commercial real estate includes 'a sales or rental office receiving public traffic.' (Id. at p. 1103.) Here, although La Jolla Nobel's apartment units are not places of public accommodation, its rental office is such a place, and Mejico has adequately alleged a nexus between the website and the rental office.

The website allegedly allows users to find the complex to visit and includes descriptions of its floor plans/amenities/services, a photo gallery, neighborhood information, and an online application. The website allegedly provides advertising and marketing information to influence consumers to visit the complex. The information on the website is allegedly similar to what would typically be provided by employees onsite. Mejico allegedly attempted to use the website to access information about the complex, visit the complex, and apply for a unit.

La Jolla Nobel's own request for judicial notice of its website further bolsters this conclusion. (See Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166 [a general demurrer 'tests the allegations of the complaint' as 'supplemented by any matter of which the trial court takes judicial notice'].) The website includes a 'Contact Us' page that lists the address for the complex and helps users 'Get Directions.' The website also lists a telephone number for the complex, as well as its 'Office Hours.' The website allows users to 'leave a message for the office team' and to 'request an appointment,' and to provide information such as the number of 'desired bedrooms.' Mejico has adequately alleged that the website has a nexus to La Jolla Nobel's rental office, which is a place of public accommodation. The demurrer is therefore overruled.

Motion to Strike La Jolla Nobel moves to strike (1) Mejico's allegations related to her prayer for injunctive relief, and (2) Mejico's allegations related to her role as a 'tester.' Prayer for Injunctive Relief Mejico alleges that she is 'entitled to a preliminary and permanent injunction enjoining Defendant from violating the Unruh Civil Rights Act, California Civil Code § 51 et seq., and requiring Defendant to take the steps necessary to make the Website readily accessible to and usable by visually-impaired Calendar No.: Event ID:  TENTATIVE RULINGS

3014430  45 CASE NUMBER: CASE TITLE:  MEJICO VS LA JOLLA NOBEL LP [IMAGED]  37-2023-00023675-CU-CR-CTL individuals.' La Jolla Nobel argues that certain language in Civil Code section 52, subdivision (c)(3), only contemplates prohibitory injunctions to remedy intentional discrimination. La Jolla Nobel that Mejico is impermissibly seeking a mandatory injunction to remedy what is, at most, an unintentional ADA violation.

La Jolla Nobel's argument is inconsistent with the 'Supreme Court's consistent holding that the Act must be construed liberally in order to carry out its . . . broad preventative and remedial purposes.' (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 652.) In Midvale, the court upheld an injunction 'mandating compliance with WCAG [Web Content Accessibility Guidelines] 2.0' based solely on an unintentional ADA violation related to a business' website that was not compatible with the blind plaintiff's screen reader software. (Id. at pp. 651–655.) Mejico makes a similar claim and her prayer for injunctive relief is consistent with Midvale. This aspect of the motion to strike is therefore denied.

'Tester' Allegations In addition to alleging that she wants to rent an apartment, Mejico alleges that she is a 'tester' who advocates for the visually impaired by visiting websites to determine their compliance with the ADA.

La Jolla Nobel argues that the 'tester' allegations must be stricken because they cannot support a claim under the Unruh Civil Rights Act. It relies on Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, which held that a plaintiff suing under the act cannot prevail if they lacked 'a bona fide intent' to utilize the defendant's services. (Id. at p. 309.) In Omni Hotels, the blind plaintiff (Thurston) alleged that the defendant hotel's (Omni) website was incompatible with her screen reader and therefore sued under the Unruh Civil Rights Act. (Id. at p. 302.) At trial, the Thurston argued that she visited the website 'to look at making a reservation at one of Omni's locations,' whereas Omni argued that she 'never intended to go to Omni's website to book a hotel' and instead 'visited Omni's website as part of a shakedown strategy to get money.' (Id. at p. 305.) The jury was instructed to determine whether Thurston 'attempted to use Omni's website for the purpose of making a hotel reservation (or to ascertain Omni's prices and accommodations for the purpose of considering whether to make a hotel reservation).' (Id. at p. 304.) The jury found that was not Thurston's purpose and judgment was entered in favor of Omni. (Id. at p. 305.) On appeal, Thurston argued that her intent or motivation for visiting the website was irrelevant and it was error to so instruct the jury, but the court of appeal disagreed. (Id. at p. 308.) The court noted that for pleading purposes it is sufficient for the plaintiff to simply allege that he or she 'intended to make use of the business's services.' (Id. at p. 306, emphasis in original.) The court then held 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.' (Id. at p. 307, emphasis in original.) Thus, the court held that while 'Thurston had standing to assert an Unruh Civil Rights Act claim against Omni,' the jury was properly instructed to decide whether Thurston possessed a 'bona fide intent' to book a room. (Id.

at p. 309.) In the wake of Omni Hotels, the Ninth Circuit held that 'past ADA litigation' is 'one factor' the trier of fact may consider, among others, in determining whether a plaintiff suing under the Unruh Civil Rights Act lacked a bona fide intent to use the defendant's services. (See Arroyo v. Golbahar (9th Cir. 2023) 2023 WL 2064588 at *2–3.) Notably, however, one of the judges opined that California law 'contains no prohibition on tester litigation' and that even 'testers' may be able to state a claim under the Unruh Civil Rights Act as long as they in fact intended to utilize the defendant's services. (Id. at *6 (conc. & dis. opn.

of Thomas, J.); see also Midvale, supra, 39 Cal.App.5th at p. 651, fn. 6.) Here, Mejico alleges that she 'genuinely wants to avail herself of [La Jolla Nobel's] goods and services Calendar No.: Event ID:  TENTATIVE RULINGS

3014430  45 CASE NUMBER: CASE TITLE:  MEJICO VS LA JOLLA NOBEL LP [IMAGED]  37-2023-00023675-CU-CR-CTL as offered on Defendant's Website' and that access barriers have prevented her from 'applying online as [she] would have been able to do by using the Website.' That allegation must be accepted as true for present purposes, and as Omni Hotels makes clear, no more is required at the pleading stage to state a claim under the Unruh Civil Rights Act. La Jolla Nobel may argue that Mejico's 'dual motivation' as a 'tester' was in fact her only motivation and rendered her intent not 'bona fide,' such that the claim fails on the merits. But Omni Hotels and Arroyo both make clear that any such argument must be made by way of a motion for summary judgment or at trial.

La Jolla Nobel has not demonstrated that Mejico's 'tester' allegations are 'irrelevant, false, or improper.' (Code Civ. Proc., § 436, subd. (a).) This aspect of the motion to strike is therefore denied.

Motion to Reclassify La Jolla Nobel moves to reclassify this case to a limited civil case on the ground that Mejico's prayer for injunction relief should be struck, and even if the motion to strike is denied, the alleged value of the injunctive relief (no more than $20,000) combined with the maximum statutory damage ($4,000) is under the amount in controversy threshold (previously $25,000, now $35,000).

A motion to reclassify shall only be granted 'if the case has been classified in an incorrect jurisdictional classification.' (Code Civ. Proc., §403.040, subd. (a).) A case is treated as a limited civil case only if the amount in controversy does not exceed $35,000 and the relief sought is a type that may be granted in such a case. (See Code Civ. Proc., § 85, subds.

(a)–(b).) If either requirement is not met, the case is classified as an unlimited civil case. (See id. at § 88.) While a court in a limited civil case can issue a 'temporary restraining order or preliminary injunction' (see Code Civ. Proc., § 86, subd. (a)(8)), it cannot issue a permanent injunction. (See Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 275; accord Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083, 1105; St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352, 362.) For the reasons set forth above, Mejico has properly prayed for a permanent injunction. Regardless of the cost to comply with that injunction, it is a type of relief that is not available in a limited civil case. As such, the case is properly classified as unlimited and the motion to reclassify is denied.

Conclusion The demurrer is overruled. The motion to strike and motion to reclassify are denied.

La Jolla Nobel shall file an answer within 10 days.

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