Judge: Maurice A. Leiter, Case: 22STCV38678, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV38678    Hearing Date: March 14, 2023    Dept: 54

Hearing Date: March 14, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Boba Time, Inc.

Responding Party: Plaintiff Ismael Herrera

T/R:    DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF NOTICE OF 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 December 13, 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, Plaintiff has failed to allege facts showing intentional discrimination and that Plaintiff is a bona fide patron who suffered 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.) Importantly, “[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.) The ADA applies to “places of public accommodation.” The Court of Appeal recently held that websites that have a nexus to a physical location may be “places of public accommodation” under the ADA if denial of access to the website impedes a person’s equal access to the physical location. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1052.)

            Plaintiff alleges that Defendant owns and operates cafes. (Compl. ¶ 19.) Plaintiff claims that denial of access to the website has denied him equal enjoyment of and access to the cafe locations. (Compl. ¶¶ 20-24.) This is sufficient to establish Defendant is a business establishment under the Unruh Act and a place of public accommodation under the ADA. The demurrer cannot be sustained on this basis.

2. Intentional Discrimination

As Plaintiff has sufficiently alleged a violation of the ADA, Plaintiff need not allege intentional discrimination.

3. Bona Fide Patron and Injury

Defendant argues that Plaintiff’s is not a bona fide patron of the website and did not suffer injury because Plaintiff is a “tester” of websites for ADA compliance. Plaintiff alleges a genuine intent to use Defendant’s services and products. (Compl. ¶ 8.) Plaintiff alleges that Plaintiff was unable to access Defendant’s website due to its inaccessibility. On demurrer, the Court must treat Plaintiff’s allegations as true.

            Defendant’s demurrer is OVERRULED.