Judge Lynette Gridiron Winston, Case Number: 22PSCV03059, Date: 2024-08-26 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV03059, Date: 2024-08-26 Tentative Ruling

The Court DENIES Plaintiff Rebecca Castillo’s motion for leave to amend the complaint.

Defendant Passion Foods, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is an ADA/Unruh Civil Rights Act case. On December 23, 2022, plaintiff Rebecca Castillo (Plaintiff) filed this action against defendant Passion Foods, Inc. (Defendant) and Does 1 through 10, alleging one cause of action for violations of the Unruh Civil Rights Act.

On July 26, 2024, Plaintiff moved for leave to amend the complaint. On August 13, 2024, Defendant opposed the motion. On August 19, 2024, Plaintiff replied.

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) However, leave to amend should not be granted where amendment would be futile. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726.)

Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).)

Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).)

The Court notes that Plaintiff submitted an additional declaration and exhibits with Plaintiff’s reply papers. Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues for the first time; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court therefore declines to consider the additional declaration and exhibits to the extent they seek to introduce new information or arguments.

The Court GRANTS Defendant’s request for judicial notice. (Evid. Code § 452, subd. (d).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

Plaintiff seeks leave to amend the complaint to add allegations regarding her habits and customs as a visually disabled person, her recent visit to Defendant’s restaurant in Oxnard, and allegations regarding website accessibility barriers identified by a Certified Professional in Accessibility Core Competencies related to Plaintiff’s disabilities. Plaintiff also seeks to add allegations that her Jobs Access with Speech software is up to date and that she also encountered an inaccessible video on Defendant’s website. Plaintiff then seeks to add allegations that Plaintiff returned to Defendant’s website on January 23, 2024 and found that the barriers she had encountered in November 2022 still existed. Plaintiff also seeks to add allegations that she traveled to Defendant’s restaurant in Oxnard and was forced to rely on sighted assistance to review the menu and place an order. Plaintiff contends good cause exists to amend the complaint to add these allegations and thereby further prove that Defendant has no policy or plan to ensure its website is compliant and accessible, and will also help inform an award for injunctive relief. Plaintiffs also contends Defendant will not be prejudiced in any way by such amendments.

In opposition, Defendant contends the amendment places the action in a venue other than where the alleged injury occurred. Defendant notes that Oxnard is in Ventura County, not Los Angeles County, and contends that these new allegations make clear that the original injury complained of occurred outside of Los Angeles, as liability for website accessibility cases attaches only if the website operates a gateway or nexus to a physical location. Defendant contends the proposed amended complaint presents two issues, namely that this action was improperly in Los Angeles County from the outset and should be transferred to Ventura County, and that granting the motion would just perpetuate the original improper filing.

Defendant then contends the proposed amendment is futile because Plaintiff’s proposed amendment regarding an additional website visit does not entitle her to more statutory damages under Civil Code section 52, and the alleged visit of Defendant’s restaurant after the additional website visit does not relate to the initial visit from the original complaint. Defendant also contends the additional factual allegations regarding Plaintiff’s disability and an expert analysis of Defendant’s website would do nothing but provide purported evidence of Plaintiff’s claim, which would be subject to discovery. Defendant contends Plaintiff’s new allegations about an additional visit to Defendant’s website on January 23, 2024 is essentially futile because Plaintiff is not entitled to more than one $4,000.00 statutory penalty under Civil Code section 52, subdivision (a).

Defendant further argues that in website accessibility cases, a plaintiff cannot obtain additional statutory damages by repeatedly visiting non-compliant websites without first seeking and receiving assurances that the website has been corrected, which has not been alleged here. Defendant argues that deterrence damages are in construction-related accessibility cases, not website accessibility cases. Defendant also argues Plaintiff inexcusably and unreasonably delayed seeking leave to amend.

Defendant finally argues that it would be prejudiced if Plaintiff is permitted to amend the Complaint. Defendant contends such amendment at this stage, more than 2 years after the original complaint was filed, would increase the cost of litigation requiring additional motions demurring to and/or striking portions of the amended complaint, and requiring additional discovery.

“A corporation or association may be sued in the county… where the obligation or liability arises… or in the county where the principal place of business of such corporation is situated…” (Code Civ. Proc., § 395.5.)

With respect to the issue of venue, while the Court finds Plaintiff’s efforts to include an alleged visit to Defendant’s Oxnard location problematic, it does not necessarily mean venue was improper when Plaintiff filed this action. If Defendant’s principal place of business is located in Los Angeles County as alleged, then venue in Los Angeles County would still be proper because Defendant is a corporation. (See Compl., ¶ 14; Fitzgerald Decl., Ex. A, ¶ 14; Code Civ. Proc., § 395.5.)

To establish a violation of the ADA, “a plaintiff must show: (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.’” (SDCCU, supra, at p. 1060, quoting Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.) Websites alone are not considered places of public accommodation under the ADA. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1043-1044, 1052-1053 (Cot’n Wash).) However, under the nexus test, courts will “consider whether the alleged website deficiencies impinge on the plaintiff's ability to have equal access to, and enjoyment of, the products and services offered at the physical location.” (SDCCU, supra, 50 Cal.App.5th at p. 1067.)

For example, the Ninth Circuit found such a nexus between Domino’s website and physical locations where customers could locate nearby restaurants and place orders over the website for home delivery or in-store pickup. (Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905.) In another case, the Court of Appeal found a nexus where a restaurant’s website included a menu and reservation system that were inaccessible to visually impaired customers. (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 638, 646.) A nexus also exists if the website provides a list of locations and services that the customer could use to determine where to go. (SDCCU, supra, 50 Cal.App.5th at p. 1069.)

The Court finds Plaintiff’s motion not well taken. First, although not raised in the parties’ respective briefs, the Court notes that Plaintiff’s motion and supporting declaration provide no evidence regarding when the facts giving rise to the amended allegations were discovered or the reasons why the request for amendment was not made earlier. (See generally, Fitzgerald Decl.; Cal. Rules of Court, rule 3.1324, subd. (b).)

Second, although not raised in the parties’ respective briefs, the Court also notes that Plaintiff’s new allegations regarding events occurring after filing this action are reserved for supplemental pleadings, not amended complaints. (Code Civ. Proc., § 464, subd. (a); Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.)

Third, the Court agrees with Defendant that the Unruh Civil Rights Act does not authorize recovery of multiple statutory penalties of $4,000.00 for every repeat visit to a website that violates the ADA. (See Civ. Code, § 55.56, subd. (a) [statutory damages under Civ. Code, § 52, subd. (a), may be recovered in a “construction-related accessibility claim”]; Robles v. Domino’s Pizza LLC (C.D. Cal. 2021) 2021 WL 2945562, *10 [district court disagreed that each visit constituted a violation under the Unruh Civil Rights Act and found instead that plaintiff alleged only one overarching violation].)[1] Plaintiff’s proposed allegation of the subsequent website visit on January 23, 2024, is therefore of no avail to Plaintiff and would be futile. (See Fitzgerald Decl., Ex. 1, ¶ 40.) It is also problematic because it occurred after Plaintiff filed the original complaint. (See Code Civ. Proc., § 464, subd. (a); Foster v. Sexton, supra, 61 Cal.App.5th at p. 1032.)

Fourth, the Court agrees with Defendant that most of Plaintiff’s new proposed allegations regarding Plaintiff’s disability and an expert analysis of Defendant’s website are merely evidence. “A complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390, italics in original.)

Finally, Defendant correctly contends that website accessibility cases require a nexus to a physical location for liability to attach to the defendant. (SDCCU, supra, 50 Cal.App.5th at p. 1067.) The proposed new allegations tie the physical location in question to one of Defendant’s restaurants in Oxnard, which is in Ventura County. (See Fitzgerald Decl., Ex. 1, ¶ 41.) The Court finds it troubling that Plaintiff seeks leave to amend almost two years after filing this lawsuit, only to now add allegations regarding a visit to a restaurant in Oxnard. The Court infers from these new proposed allegations that the Oxnard restaurant is the physical location Plaintiff is referencing in her original complaint, even if she had not actually visited it when she filed the complaint. (Reply, 4:8-9.) Otherwise, if Plaintiff’s visit to Defendant’s website is not tied to the Oxnard restaurant, it is unclear what physical location her claim would be based on for purposes of the nexus test. (See generally, Compl.; Robles v. Domino’s Pizza, LLC, supra, 913 F.3d at p. 905.

The Court further finds that Defendant has established prejudice if the amendment is allowed. This case is ready to be set for trial and the amended complaint would likely require additional challenges to the pleading and additional discovery. Based on the foregoing, the Court DENIES the motion.

The Court DENIES Plaintiff Rebecca Castillo’s motion for leave to amend the complaint.

Defendant Passion Foods, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Contrary to Plaintiff’s assertion, Robles v. Domino’s Pizza LLC (C.D. Cal. 2021) 2021 WL 2945562 was not overturned on appeal. (Reply, 5:10-11.) The Ninth Circuit in Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898 overturned Robles v. Dominos Pizza LLC (C.D. Cal. 2017) 1330216.