Judge: Martha K. Gooding, Case: 2022-01258659, Date: 2022-09-26 Tentative Ruling
Demurrer to Complaint
Defendant Nordstrom, Inc. (“Defendant”) generally and specially demurs to the Complaint by Plaintiff Drew Hunthausen (“PlaintifF”). The Demurrer is overruled.
Requests for Judicial Notice
Plaintiff’s unopposed requests for judicial notice are granted.
Defendant’s requests for judicial notice, made with its Reply, are granted. Because they are court documents (including a published Court of appeal opinion), these documents are subject to judicial notice. Evid. Code § 452(d).
Plaintiff’s Evidentiary Objections
With his Opposition, Plaintiff purports to “object” to statements in Defendant’s memorandum in support of its demurrer to the effect that Plaintiff is a chronic litigant that acts through the same counsel. MPAs are not evidence to which one may object. The objections are overruled.
Demurrer for Uncertainty
The Court first addresses Defendant’s demurrer for uncertainty.
A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but rather is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal. 2d 872, 883. “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. Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).
Further, uncertainty is a disfavored ground on a demurrer. See, Rutter, Civil Procedure Before Trial, Section 7:85. A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. See Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.
In its demurrer, Defendant does not specify how and why Plaintiff’s Complaint is uncertain – as opposed to insufficiently plead. Accordingly, the demurrer on this ground is OVERRULED. The Complaint is not so poorly pled that Defendant cannot reasonably determine what it must respond to.
Demurrer for Failure to State a Claim
Plaintiff’s Complaint consists of a single cause of action for violation of the Unruh Act.
[W]here, as here, statutory remedies are invoked, the facts “must be pleaded with particularity.” (Covenant Care, supra, 32 Cal.4th at p. 790, 11 Cal.Rptr.3d 222, 86 P.3d
290.)
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.
Civil Code section 51, the Unruh Act, provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA per section 51(f)); 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.
Direct Violation
For an Unruh Act cause of action, a plaintiff must plead intentional discrimination, e.g., willful, affirmative misconduct, in violation of the terms of the Act. Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172 and 1175.
Here, to plead discrimination Plaintiff alleges that:
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.
[Complaint, ¶ 28.]
But it has previously been found that inferring discriminatory intent solely from the effects of a facially neutral policy on a particular group, and thus, a disparate impact on a particular group, is insufficient to support intentional discrimination for a claim under the Unruh Act. Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 853-854. “Despite its broad application, the Unruh Act does not extend to practices and policies that apply equally to all persons,” and “[a] policy that is neutral on its face is not actionable under the Unruh Act, even when it has a disproportionate impact on a protected class.” Turner v. Assn. of Am. Medical Colleges (2008) 167 Cal.App.4th 1401, 1408.
More recently, in a directly applicable case, the Court of Appeal confirmed that the disparate impact of a website on sighted and visually impaired persons is not enough to show intentional discrimination – even if the defendant fails to change the website after the disparate impact is brought to its attention.
But if, under the reasoning of Koebke, Martinez cannot establish CW's intent to discriminate by
showing only that its website does not allow visually impaired individuals
the same access available to those who are not visually impaired (i.e., a
disparate effect of a neutral structure), it follows that CW's failure to address this disparate effect likewise cannot establish CW's
intent to discriminate.
Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036.
Plaintiff argues Martinez v. Cot’n Wash is wrongly decided. But that is not an argument for this court. As a California Court of Appeal opinion, Martinez v. Cot’n Wash is binding on this court. Auto Equity Sales v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455-56.
Plaintiff also points to Hankins v. El Torito as contrary California authority. There, the Court of Appeal affirmed a judgment after trial finding El Torito violated the Unruh Civil Rights Act by intentionally discriminating against the physically handicapped by providing a restroom for patrons on an upper floor, accessible only by stairway, and refusing to provide access to the first-floor employee restroom to handicapped persons who could not climb the stairs. Hankins v. El Torito (1998) 63 Cal.App.4th 510.
Plaintiff contends Hankins v. El Torito establishes that “knowledge” is enough. But Hankins involves very different facts, including affirmative denial of access by the defendant. Hankins does not involve a website; it involves an affirmative standing policy or practice, which Plaintiff does not allege here. In contrast, Martinez v. Cot’n Wash is directly on point.
Accordingly, the Court finds that Plaintiff has not alleged a direct violation of the Unruh Act.
ADA Violation
For an ADA violation, a plaintiff must plead and prove: (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.” Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1060.
Federal courts have reached different conclusions on whether a website is a public accommodation. Id. at 1061. The majority view, including that of the Third, Sixth, Ninth, and Eleventh Circuits, is that websites are not “public accommodations” under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities. Id. at 1063. Under this approach, to the extent barriers on the website impinge on a plaintiff's ability to access such benefits at a physical premises, the claim can be actionable under a nexus theory. Id. at 1064 -1065 (finding claim that website connects customers to the goods and services offered at Credit Union's physical locations sufficient to meet this standard); Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 (affirming MSJ for plaintiff based on nexus theory: “We hold that including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress's mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.”).
For our purposes, however, the issue is settled by the recent opinion in Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026. There, the Court of Appeal determined that a website does not constitute “public accommodations” under the ADA.
We ultimately conclude that the language of the statute, when considered in the context of Congress's failure to act and the DOJ's silence in terms of formal guidance, does not permit us to adopt an interpretation of the statute that is not dictated by its language, especially in the face of the legislative and agency inaction described above. . . .
Based on all of the factors we discuss above, we conclude that [the] website is not a “place of public accommodation” under Title III as currently written.
Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1052-53.
Thus, the only way Plaintiff can plead an ADA violation is if he sufficiently pleads a nexus between the barriers he encountered on Defendant’s website and his ability to access benefits at the physical premises of Defendant’s stores.
Courts 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. This standard requires a court to focus on the connection between the website and the goods and services offered by the defendant. Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1067.
Robles and Thurston both applied this standard to uphold a visually impaired plaintiff's ADA claim against a restaurant. The Robles court found the plaintiff alleged sufficient facts to show the requisite nexus in her action against Domino's Pizza based on allegations that Domino's website (and related “app”) permitted the customer to find the location of the nearest restaurant and is the primary means of ordering pizzas “to be picked up at or delivered from Domino's restaurants.” (Robles, supra, 913 F.3d at p. 905.) The Thurston court found the nexus test was satisfied by facts showing the restaurant's website provided consumers with the opportunity to review the menu and make a reservation, which the court found expedited the customer's ability to obtain the benefits of the restaurant's physical facility. (Thurston, supra, 39 Cal.App.5th at pp. 638, 645-646, 252 Cal.Rptr.3d 292.) Thurston explained these website features “speed[ ] up” the customer's “experience at the physical location” and thus facilitate the use and enjoyment of the services offered at the restaurant. (Id. at p. 645, 252 Cal.Rptr.3d 292.) The court further stated the nexus test was met even though the website was not necessarily an “extension” of the restaurant's physical services (id. at pp. 644-645, 252 Cal.Rptr.3d 292) because, as in Robles, “the website connects customers to the services of the restaurant” (id. at p. 646, 252 Cal.Rptr.3d 292, italics added).
Martinez v. San Diego County Credit Union, 50 Cal.App.5th at 1067 (emphasis added).
Plaintiff’s allegations are far less detailed factually than those the courts have approved. For example:
In FedFinancial, the court found the nexus test satisfied based on the plaintiff's allegations that the credit union's website “is a service of Defendant's physical, brick and mortar location,” and “ ‘provides access to [the credit union's] array of services, privileges, advantages, and accommodations including, but not limited to, a branch locator for the [credit union's] facility, shared branch locations, and ATMs so that a potential customer may determine from the website the closest location for them to visit, descriptions of its types of banking services and accounts, online banking and bills pay services, loan information and documents, location service hours, special offers, an “About” page so that users may determine [the credit union's] services ... and qualifications for membership.’ Plaintiff ... also alleged that the access barriers on Defendant's website ... prevented him from ... visiting Defendant's physical location.” (FedFinancial, supra, 324 F.Supp.3d at pp. 666-667, citation omitted.)
. . .
In Fort McPherson, the court likewise found the nexus test satisfied based on the plaintiff's allegations that the credit union's website “allows users to find the physical location of Defendant's facility, provides information about Defendant's services (including twelve online calculators), advantages, accommodations, and amenities, and enables visitors to the website to ‘pre-shop’ before visiting the physical location to purchase a mortgage.” (Fort McPherson, supra, 347 F.Supp.3d at p. 1354.) Similarly, the Piedmont Plus court found the nexus test was satisfied based on the plaintiff's allegations that the website provides “ ‘information concerning [Defendant's] locations it operates [and] information and descriptions of its amenities and services, privileges, advantages, and accommodations,’ and it ‘allowed users to find the locations for them to visit.’ ” (Piedmont Plus, supra, 335 F.Supp.3d at p. 1282.)
Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1068–1069.
Plaintiff alleges that the website provides access to Defendant’s array of services, including a location locator for its store locations, descriptions of its products, amenities and services, online store and many other benefits related to these facilities and services. The website provides a breadth of information concerning its products and other amenities and services, privileges, advantages, and accommodations, and allows users to find the retail locations to visit. [Complaint, ¶¶ 18-19.] But the website contains access barriers that prevent free and full use by Plaintiff and other blind persons using screen reading software. [Id., ¶ 20.]
Plaintiff further alleges that, despite several attempts to access the website in recent months, the numerous access barriers contained on the Website have denied Plaintiff’s full and equal access, and have deterred Plaintiff on a regular basis from accessing the Website. Similarly, based on the numerous access barriers contained on the Website, Plaintiff has been deterred from visiting Defendant’s physical locations and/or purchasing Defendant’s products as Plaintiff would have been able to do by using the Website. Plaintiff continues to attempt to utilize the Website and plans to continue to attempt to utilize the Website in the near future. [Complaint, ¶ 24.]
Thus, virtually all of Plaintiff’s allegations about inaccessibility and barriers are alleged in terms of the website. (Complaint, ¶¶ 4, 7, 8, 23, 24.) The only “nexus” Plaintiff pleads between the barriers he encountered on Defendant’s website and his ability to access benefits at the physical premises of Defendant’s stores is his alleged inability to use a “store locator” on the website to locate Defendant’s physical locations. But there are no allegations that he wants or intends to visit any physical store location.
Mindful of the particularity requirement for pleading statutory causes of action, the Court finds Plaintiff’s lone, conclusory, allegation insufficient; Plaintiff has not alleged sufficient facts to show a nexus between the access barriers on the website and Plaintiff’s (in)ability to access services or benefits at the physical premises.
The Demurrer is SUSTAINED with 15 days leave to amend.
Defendant is ordered to give notice unless all parties waive notice at the hearing.