Judge: Mark E. Windham, Case: 23STLC05999, Date: 2024-02-28 Tentative Ruling

Case Number: 23STLC05999    Hearing Date: February 28, 2024    Dept: 26

Casillas v. Merrilee’s, Inc., et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Merrilee’s, Inc. dba Merrilee’s Swimwear’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On September 18, 2023, Plaintiff Jose Casillas (“Plaintiff”) filed the Complaint in this action against Defendant Merrilee’s, Inc. dba Merrilee’s Swimwear (“Defendant”). The Complaint alleges a single violation of the Unruh Civil Rights Act (“the UCRA”). Defendant filed the instant Demurrer to the Complaint on January 25, 2024. Plaintiff filed an opposition on February 14, 2024 and Defendant replied on February 21, 2024.

Discussion

Plaintiff alleges that he is a visually impaired individual who requires screen-reading software to access and read website content. (Compl., ¶3.) Defendant is the owner/operator of a public accommodation known as https://merrilees.com (“the Website”) and locations connected to it. (Id. at ¶4.) The Website and its subgroup of websites, which provide information, price lists, product descriptions, and other material relating to the public accommodations and online retail, are not fully accessible to screen-reading technology used by visually impaired and blind individuals. (Id. at ¶¶6, 8.) On August 19, 2023, Plaintiff attempted to use the Website to access information about Defendant’s business but was unable to do so. (Id. at ¶¶9-10.) As a result, Plaintiff was deterred from potentially transacting business with Defendant and suffered damages. (Id. at ¶¶11-13.) The Complaint alleges a single cause of action for violation of Civil Code section 51. (Id. at ¶16.)

Defendant demurs to the Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Motion, Stillman Decl., ¶3.) Plaintiff argues that the demurrer is untimely because it was not filed within 30 days. While a demurrer may be filed within that time, the Court has the discretion to hear it even if filed after that time. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 279-280 [citing Code Civ. Proc., § 430.40].)

Regarding the failure to allege sufficient facts, Defendant first argues that the Complaint does not include a sufficient nexus between the website and the physical location of the store, as required by case law. Specifically, “[C]ourts applying the nexus test 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.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1067.) “But most courts have interpreted the requirement broadly to conclude that a plaintiff has made the requisite showing if the facts show the website “connect[s] customers to the goods and services of [the defendant's] physical” place. [Citations omitted].” (Ibid.) The Complaint only alleges that Defendant owns the public accommodations known as the Website and any locations connected to the Website. (Compl., ¶4.) No other information is alleged about the “locations” including whether they are physical locations or the nature of their connection to the Website. The Complaint, therefore, does not allege a sufficient nexus between the Website and a physical location.

Next, the demurrer argues that the Complaint does not allege any specific facts regarding the deficiencies in the Website that impeded Plaintiff’s access. The Court agrees. The Complaint simply alleges that the Website and its subgroup of webpages were not fully accessible to screen-reading technology. (Id. at ¶8.) No facts are alleged regarding what full access entails and how it was lacking with respect to the Website, such that the Complaint fails to put Defendant on notice of the accessibility violations that purportedly caused Plaintiff harm.

Finally, Defendant argues that Plaintiff has not sufficiently alleged that he was deterred from the enjoyment of services because access to information is not a right protected under the UCRA. The authority on which Defendant relies, however, is a non-binding concurrence in Acheson Hotels, LLC v. Laufer (2023) 601 U.S. 1, 11. This is not grounds to find a failure to allege sufficient facts.

Based on the first two grounds, however, the demurrer to the Complaint is sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment, however, the burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff has filed an opposition and the Court finds a reasonable possibility that Plaintiff can allege facts demonstrating the requisite nexus and nature of the accessibility defects. Therefore, leave to amend is granted.

Conclusion

Defendant Merrilee’s, Inc. dba Merrilee’s Swimwear’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.