Judge: Margaret L. Oldendorf, Case: 22AHCV00897, Date: 2024-02-22 Tentative Ruling

Case Number: 22AHCV00897    Hearing Date: February 22, 2024    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is an Unruh action. Plaintiff Allan J. Williams II (Williams) is a disabled individual as defined by the Americans with Disabilities Act.  He is completely deaf. He relies on closed captioning to access audio content. Defendant Steven D. Lin MD (Defendant) operates a website advertising his orthopedic hand surgery practice. Plaintiff Williams alleges that this website was not accessible to him.  Williams has filed suit,  specifically with respect to the “Meet Our Surgeon” video on the website, which did not have closed captioning. The complaint contains two causes of action: (1) Unruh Act, and (2) California Disabled Persons Act.

Before the Court is an unopposed motion for summary judgment filed by Defendant Dr. Lin. Defendant seeks summary judgment, arguing that (1) the Website has been redesigned and the subject video has been removed, (2) Plaintiff’s Unruh and DPA claims should be dismissed because Plaintiff was required, but failed, to request captioning prior to filing suit, (3) Plaintiff’s claims fail because Plaintiff was not a bona fide patron, cannot show that any website barriers impeded his access to a physical location, and the content of the subject video was merely duplicative of content provided elsewhere on the Website in written format, and (4) Plaintiff fails to prove intentional discrimination.

Because Defendant has met his burden to demonstrate that no triable issue of material fact exists, the motion for summary judgment is GRANTED.         

          II. REQUEST FOR JUDICIAL NOTICE

          Defendant’s Request for Judicial Notice:

          Defendant requests judicial notice of a list of disabled access lawsuits Plaintiff Williams has filed. To the extent that the Court considers this request, it is unclear under which subsection of Evidence Code Section 452 judicial notice could be taken. Additionally, the Court notes that the attached list is a printout from a commercial legal research website, Bloomberg Law, and the information could be changed or modified at any time by anyone.

          Accordingly, the Court declines to take judicial notice of the subject list.

III.     LEGAL STANDARD

          A. Law Governing Motions for Summary Judgment

          Summary judgment is appropriately granted where it is shown that an action has no merit or that there is no defense to the action. (Code Civ. Proc. §437c(a).) A motion for summary judgment shall be granted where all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. CCP § 437c(c).)

          Summary adjudication may be granted where it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty. (CCP § 437c(f).)

          A defendant has met “his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) “[T]he burden [then] shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

          The pleadings play a key role in a summary judgment motion. “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Per the California Supreme Court, ‘The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493. [citations omitted.])

Unopposed declarations must be accepted as true. (CCP § 437c(e).) However, affidavits must be liberally construed in favor of the opposition and strictly construed against the moving party in determining the existence of a "triable issue" of fact. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

IV.     ANALYSIS

          a. The Undisputed Facts

          It is undisputed that Williams did not request any changes to Defendant’s website before filing suit. (UMF 1.) Additionally, the “Meet Your Surgeon” video has been removed. (UMF 2.) Williams did not face any impediments to access on the website, because the information in the video was provided elsewhere in written form. (UMFs 3, 4.) Williams brought this lawsuit as an ADA “tester.” (UMF 5.) Williams does not demonstrate intentional discrimination. (UMF 6.)

           b. Unruh Civil Rights Act

The Unruh Civil Rights Act is provided by Civil Code Section 51 et seq. Civil Code Section 51(b) provides that “[a]ll persons within the jurisdiction of this state…  are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (CC § 51(b).) The Unruh Civil Rights Act is intended to remedy traditional wrongs by business establishments. (Frantz v. Blackwell, 189 Cal.App.3d 91, 96; Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1449.) To assert a cause of action under the Unruh Civil Rights Act, a violation of the ADA must be alleged. (CC § 51(f).)

Here, Defendant argues that Williams cannot recover for a violation of the Unruh Act because the video that is the subject of the action has been removed. (Motion Memorandum of Points and Authorities p. 9: 7-14.) In so arguing, Defendant relies on an unpublished case, which violates CRC 8.1115(a). The Court declines to consider the merits  of the argument on this basis. 

Defendant also cites Unruh cases that were dismissed because the underlying barrier upon which the claims were founded was remediated. (See e.g., Grove v. De La Cruz ( C.D. CA 2005) 407 F.Supp.2d 1126, 1131; Pickern v. Best Western Timber Cove Lodge Marina Resort (E.D. CA 2002) 194 F.Supp.2d 1128, 1130; Brother v. CPL Invts., Inc. (S.D. FL 2004) 317 F.Supp.2d 1358; Parr v. L&L Drive-Inn Restaurant (HI 2000) 96 F. Supp. 2d 1065, 1087.)

Defendant urges that, similar to the cited cases, the fact that the offending video has been removed and that the website no longer contains any content inaccessible to Williams renders this claim moot. In support, Defendant offers the declaration of Steven Lin. (Lin Declaration) Lin is the hand surgeon whose video “Meet Your Surgeon” is at issue. He is the owner of the website. (Lin Decl. ¶ 1.) He declares that the information in the video was contained elsewhere on the website in written format, to be accessible to those who are hard of hearing. (Id.) He declares that any lack of captioning was accidental. (Id.) He declares that the video has since been removed, and the website has been simplified. (Id.) He attaches screenshots of the original website (Exh. A) and the current website (Exh. B.) Exh. B provides that the website now just has three text links: (1) Schedule Appointments, (2) Learn about the Surgeon and (3) Contact Us. (Lin Decl. Exh. B.) He has also lodged a copy of the video at issue with the court. Dr. Lin’s affidavit is not objected to or otherwise opposed.  (See CCP § 437c(e) [Unopposed declarations must be accepted as true.])

          In further support, Defendant offers the declaration of Michael J. Chilleen, his counsel. (Chilleen Declaration.) Chilleen attaches excerpts of Plaintiff Williams’ deposition and response to Request for Production No. 11. (Chilleen Decl., Exhs. A, B.) Plaintiff Williams testified at his deposition that he had never gone to Lin’s office. (Chilleen Decl. Exh. A p. 9: 12-18.) The response to RFP 11 was “Plaintiff will produce the following documents: Screenshot and video of the investigation of Defendant’s website.” (Chilleen Decl. Exh. B.)

          Defendant also urges that Williams cannot recover under the ADA because he never contacted the office to inform them about the lack of captioning. (Motion Memorandum of Points and Authorities p. 10: 21-22.) In support, Defendant offers the declaration of Michael J. Chilleen. Chilleen attaches excerpts of Plaintiff Williams’ deposition and response to Request for Production No. 11. (Chilleen Decl., Exhs. A, B.) Williams testified in his deposition that he had never contacted Lin’s office to inform them that the “Meet Your Surgeon” video had no closed captioning. (Chilleen Decl. Exh. A p. 17: 11-16.) Dr. Lin also declares that defendant was not contacted by Williams before the lawsuit was filed in order to put closed captioning on the video. (Lin Decl. ¶ 2.)  

          Third, Defendant urges that Williams cannot recover because he cannot allege he was denied access to a physical location. (Memorandum of Points and Authorities, p. 12: 19-21.) In support, Defendant cites Martinez v. Cot'n Wash, Inc. for the proposition that because a website is not a public accommodation under the ADA, a plaintiff must allege a relation between the allegedly discriminatory content on a website and plaintiff’s inability to access a physical location. (Martinez v. Cot'n Wash, Inc.(2022) 81 Cal.App.5th 1026, 1042.) To apply the nexus test, courts determine 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.” (Motion Memorandum of Points and Authorities p. 13: 1-4, referencing Martinez v. San Diego Cnty. Credit Union (2020) 50 Cal. App. 5th 1048, 1067.) Defendant urges that Williams failed to show that lack of captioning on the video impeded his access to Defendant’s physical office.

          Fourth, Defendant urges that Williams cannot recover because the information he sought was available elsewhere on the website in a format he could access. (Motion Memorandum of Points and Authorities p. 16: 20-22.) Under the ADA, a “public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).) Defendant then cites several federal cases for the proposition that effective communication with disabled persons is the focus, not what format the communication is in or if it is current with the latest technology. (See, e.g., Martin v. Halifax Healthcare Systems, Inc. (11th Cir. 2015) 621 Fed.Appx. 594.) In support, Defendant again offers the declaration of Dr. Lin. He declares that the information in the video was contained elsewhere on the website in written format, so as to be accessible to those who are hard of hearing. (Id.) He declares that any lack of captioning was accidental. (Id.) Exhibit A  demonstrates that the website did have a detailed written description entitled “Meet Our Surgeon” when Williams visited the website. The Court agrees that this information was not inaccessible to Williams.

          Defendant also urges that Williams does not have an Unruh Act claim because he was not a bona fide patron. (UMF 5.) Citing White v. Square, Inc., Defendant argues that a person bringing an Unruh claim must have a bona fide intent to avail themselves of the services and benefits of the business. (See White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032.) In support, Defendant cites Williams’ deposition testimony. Williams testified that he had no future plans to visit Dr. Lin’s office. (Chilleen Decl. Exh. A p. 19: 4-6.) This argument is also well taken. (See also Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, Complaint ¶ 29.)

          Lastly, Defendant urges that Williams’ Unruh Act fails as he cannot establish intentional discrimination. In support, Defendant cites Munson v. Del Taco, Inc. for the proposition that absent a violation of ADA, plaintiff must allege intentional discrimination to prevail on an Unruh claim. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668.) Disparate impact of facially neutral policies is not enough; willful affirmative conduct is needed. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 853.) Defendant cites several cases where disparate impact on a certain group was not adjudged to be enough, absent a showing of intentional discrimination. Here, Defendant urges that its policy of providing at the time, a video, and a written description of the information in the video, was facially neutral. (See UMF 6.) The Court agrees.

The Court reiterates that it declines to consider the merits of any argument based on any unpublished opinion cited in violation of CRC 8.1115(a).

          C. California Disabled Persons Act

To state a claim under section 54.1(d) of the DPA, a plaintiff must prove a violation of the ADA. (Civ. Code §54.1(d).) A plaintiff must also demonstrate that he/she/they are a bona fide patron. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1225.) Full and equal access to services, which the California Disabled Persons Act strives for, includes ADA standards, whichever has a stricter standard. (CC §5 4.1(a)(3).) Here, Williams contends that Defendant did not comply with industry standard WCAG guidelines. (Complaint ¶ 33.) However, these are voluntary guidelines, not state law.

Here, Williams does not allege a violation of the ADA (UMFs 2-4), nor a violation of a stricter state law standard. As this motion is unopposed, there is no evidence to the contrary that the conduct did not violate the ADA or stricter California law.

In sum, the motion for summary judgment is also granted on this basis.

V.       CONCLUSION AND ORDER

          Defendant’s motion for summary judgment is granted. The separate proposed Judgment shall be signed and entered this date.

          Counsel for Defendant is ordered to give notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT