Judge: Maurice A. Leiter, Case: 22STCV13166, Date: 2022-10-13 Tentative Ruling

Case Number: 22STCV13166    Hearing Date: October 13, 2022    Dept: 54

Hearing Date: October 13, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Newmont Corporation

Responding Party: Plaintiff Rusty Rendon

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE ANSWERS TO THE SECOND AMENDED COMPLAINT WITHIN 15 DAYS OF NOTICE RULING.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On April 20, 2022, Plaintiff sued Defendant, asserting one cause of action for violation of Unruh Civil Rights Act. Plaintiff alleges that Defendant’s website is inaccessible for blind and visually impaired individuals.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant demurs to Plaintiff’s complaint on the grounds that it fails to state sufficient facts. Defendant asserts that its website is not a “place of public accommodation” pursuant to the ADA, and Plaintiff has failed to allege intentional discrimination and injury.

Under the Unruh Act, “[a]ll persons within the jurisdiction of this state are free and equal . . . and no matter what their . . . disability [or other protected characteristic] . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code § 51; see also CACI No. 3066.) “Whoever denies, aids, or incites a denial, or makes any discrimination or distinction” contrary to the Unruh Act is liable for damages. (Civ. Code, § 52(a).) A violation of the Americans with Disabilities Act (ADA) also qualifies as a violation of Unruh. (Civ. Code § 51(f).) 

A cause of action under Unruh consists of these elements: (1) the defendant denied the plaintiff access to full and equal accommodations, advantages, facilities, privileges, or services in a business establishment; (2) the plaintiff’s membership in a protected class was a motivating factor for this denial; and (3) defendants’ wrongful conduct caused plaintiff to suffer injury, damage, loss or harm. (See Wilkins-Jones v. County of Alameda (2012) 859 F.Supp.2d 1039, 1048.) “A plaintiff who establishes a violation of the ADA . . . need not prove intentional discrimination in order to obtain damages under section 52.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665.) By contrast, a plaintiff establishing an Unruh violation that is not also an ADA violation must establish that the discrimination was intentional. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172; see Long v. Playboy Enterprises Intern., Inc. (2014) 565 Fed.Appx. 646, 647-648 [observing that the Munson Court’s holding did not disturb the requirement that a non-ADA Unruh claim be based on intentional discrimination].) 

1. Business Establishment

The Unruh Act applies only to “business establishments.” (Civ. Code § 51.) Recent California cases have clarified that this concept is broader than the concept of “places of public accommodation” as used in the ADA. Specifically, in California, a website, that is, a business whose offerings are made entirely by way of an internet connection and one’s own computer or device, may qualify as a business establishment under Unruh. (See White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023 [analyzing issue of standing and holding that “visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store”]; id. at p 1027 [“The case before us involves a plaintiff who neither paid a fee nor requested equal treatment before leaving the business establishment – in this case, a website, not a brick-and-mortar vendor”]; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th, 634-644 [observing in express dicta that “[e]xcluding websites just because they are not built of brick-and-mortar runs counter to the purpose of the statute”].) Published federal cases also indicate that an online store where goods are sold can qualify as its own business establishment under Unruh without any requirement of a nexus to physical store. (See, e.g., National Fed’n of the Blind v. Target Corp. (N.D. Cal. 2007) 486 F.Supp.2d 1022, 1056.) 

Plaintiff alleges “Defendant is a business that: (1) offers services to the public via its Website; (2) has a discrete, standalone location or identity via its Website; and (3) provides significant amounts of information to consumers on its Website, which is equivalent to or even more information than what would be typically provided by either an on-site proprietor or its employees.” (Compl. ¶ 12.) This is sufficient to establish Defendant is a “business establishment” under the Unruh Act.

2. Intentional Discrimination

As discussed, if a claim is based on direct violations of Unruh, the plaintiff must plead and prove that the violations were intentional. (Long, supra, 565 Fed.Appx. at pp. 647-648.) Defendant argues that Plaintiff has not pled facts to support the requisite intent. Plaintiff alleges, “Defendant’s actions constituted intentional discrimination against Plaintiff on the basis of a disability in violation of the Unruh Civil Rights Act because Defendant constructed a Website that was inaccessible to Plaintiff, knowingly maintained the Website in this inaccessible form, and failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause.” (Compl. ¶ 24.) 

The Court must treat Plaintiff’s allegations as true. Plaintiff alleges that Defendant was notified that the website was inaccessible and failed to take corrective action. This is sufficient to establish intentional discrimination. (See Ruiz v. Musclewood Inv. Props., LLC (2018) 28 Cal.App.5th 15, 22 [in Disabled Persons Act claim, knowledge of defects along with lack of action to rectify in response to an attempt to obtain corrective action, may permit an inference of intent].) 

3. Injury

Defendant argues that Plaintiff’s allegations of injury are “abstract.” Plaintiff alleges that Plaintiff was unable to access Defendant’s website due to its inaccessibility. This is sufficient to establish injury.

Defendant’s demurrer is OVERRULED.