Judge: Mel Red Recana, Case: 23STCV16536, Date: 2024-10-15 Tentative Ruling
Case Number: 23STCV16536 Hearing Date: October 15, 2024 Dept: 45
Hearing date: October
15, 2024
Moving Party: Defendant
FYI MC, LLC
Responding Party: Plaintiff
Walter Mitchell
Demurrer with Motion to Strike
The Court
considered the moving and opposition papers.
The
Court OVERRULES Defendant’s demurrer in its entirety.
The
Court DENIES Defendant’s motion to strike in its entirety.
Background
Plaintiff Walter
Mitchell is a blind individual who requires screen reading software to access
website content across the Internet. (Compl., ¶ 4.) This case arises from
Defendant FYI MC, LLC allegedly maintaining its website “millikencreekinn.com”
(the Website) “in such a way that the Website contains numerous access barriers
preventing Plaintiff, and other blind and visually-impaired individuals, from
gaining equal access to the Website.” (Compl., ¶ 4.)
On July 16, 2023,
Plaintiff Walter Mitchell (Plaintiff) filed a complaint against Defendant FYI
MC, LLC (Defendant) for violations of the Unruh Civil Rights Act, California
Civil Code § 51 et seq. Plaintiff seeks declaratory relief, a
preliminary and permanent injunction “requiring Defendant to take the steps
necessary to make the Website, millikencreekinn.com, readily accessible to and
usable by visually-impaired individuals,” damages, and attorneys’ fees.
On September 3,
2023, Defendant demurred to the entirety of Plaintiff’s complaint.
On September 3,
2023, Plaintiff filed an opposition to Defendant’s demurrer and a Response to
Defendant’s motion to strike.
Legal Standard
1.
Demurrer
A demurrer is an
objection to a pleading, the grounds for which are apparent from either the
face of the complaint or a matter of which the court may take judicial notice.
(Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency
of a pleading “by raising questions of law.” (Postley v. Harvey (1984)
153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose
of determining its effect, its allegations must be liberally construed, with a
view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The
court “‘treat[s] the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law . . ..’” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
When a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a
pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015)
244 Cal.App.4th 118, 226.)
2. Motion to Strike
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike a
pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1).)¿ The
court¿may, upon a motion, or at any time in its discretion, and upon terms it
deems proper, strike any irrelevant, false, or improper matter inserted in any
pleading.¿ (Code Civ. Proc., § 436, subd. (a).)¿ The court may also strike all
or any part of any pleading not drawn or filed in conformity with California
law, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subd.
(b).)¿ An immaterial or irrelevant allegation is one that is not essential to
the statement of a claim or defense; is neither pertinent to nor supported by
an otherwise sufficient claim or defense; or a demand for judgment requesting
relief not supported by the allegations of the complaint.¿ (Code Civ. Proc.,
431.10, subd. (b).)¿ The grounds for moving to strike must appear on the face
of the pleading or by way of judicial notice.¿ (Code Civ. Proc., §
437.)¿¿¿
Meet and Confer
Before filing a
demurrer or motion to strike, the moving party is required to meet and confer
in person or by telephone with the party who filed the pleading demurred to or
the pleading that is subject to the motion to strike for the purposes of
determining whether an agreement can be reached through a filing of an amended
pleading that would resolve the objections to be raised in the demurrer or
motion to strike. (Code Civ. Proc., §§ 430.41; 435.5.)
Matthew Arnold,
counsel for Defendant, provided a declaration for the demurrer which states
that “[o]n August 10, 2023, I met and conferred with plaintiff’s counsel,
Victoria Knowles, Esq. by telephone, regarding the issues raised in my client’s
Demurrer on the causes of action in plaintiff’s complaint,” and a declaration
for the motion to strike which states that on August 10, 2023, he “met and
conferred about this Motion to Strike with Victoria Knowles, Esq., representing
plaintiff Walter Mitchell.” (Arnold Decls., ¶ 2.)
Thus, the meet
and confer requirement has been met.
Judicial Notice
Plaintiff requests
the Court to take judicial notice of seven minute orders and court orders that
have been filed with the Los Angeles Superior Court. (Request for Judicial
Notice, Exhibits 1-7.)
Although a court may take judicial
notice of court records and files, judicial notice is limited to matters that
are indisputably true. (Evid. Code, section 452(d); Arce v. Kaiser
Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) The truth of
the matters asserted in these records is not subject to judicial notice. (Arce,
supra, 181 Cal.App.4th at p. 483.) However, the court may take judicial
notice of a document’s legal effect. (Julian Volunteer Fire Co. Assn. v.
Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600 [“In
taking judicial notice of an official document, a court may take notice not
only of the fact of the document but also facts that can be deduced, and/or
clearly derived from, its legal effect, such as the names and dates contained
in the document, and the legal consequences of the document. This is different
from taking judicial notice of the truth of specific factual representations
within a document.”].)
Thus, the Court
takes judicial notice of the seven minute orders and court orders as to their
existence and legal effect but not as to the truth of the matters asserted in them.
Discussion
1.
Demurrer
Defendant demurs to the
entirety of Plaintiff’s complaint alleging violations of the Unruh Act on the
grounds that the allegations contained in the complaint fail to state facts
sufficient to constitute the cause of action and that the complaint is
uncertain.
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 the
Unruh Act. (Civ. Code § 51(f).)
A cause of action under the Unruh
Act requires the following 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.)
“When a plaintiff has
visited a business’s website with intent to use its services and alleges that
the business’s terms and conditions exclude him or her from full and equal
access to its services, the plaintiff need not enter into an agreement with the
business to establish standing under the Unruh Civil Rights Act. In general, a
person suffers discrimination under the Act when the person presents himself or
herself to a business with an intent to use its services but encounters an
exclusionary policy or practice that prevents him or her from using those
services. We conclude that this rule applies to online businesses and 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.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023; CACI 3060.)
Plaintiff has sufficiently
pleaded facts to state a violation of the Unruh Act.
Plaintiff sufficiently alleges that he
is a permanently blind individual that uses screen readers to access the
internet. (Compl. ¶ 7.) Plaintiff has alleged that he has been “denied []
full and equal access, [] deterred [] on a regular basis from accessing the
Website, [and] deterred from visiting Defendant’s physical location Plaintiff
would have been able to do by using the Website.” (Compl., ¶ 24.) In Angelucci, the Court held that
“Plaintiffs adequately alleged they had suffered an ‘invasion of legally
protected interests’ sufficient to afford them an interest in pursuing their
action vigorously.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th
160, 175.) Plaintiff here similarly alleges that “despite several attempts to
use and navigate the Website, Plaintiff has been denied the full use and
enjoyment of the facilities and services of the Website as a result of
accessibility barriers on the Website,” which harmed Plaintiff’s dignitary
interest. (Compl. ¶ 7; see Nicholls v. Holiday Panay Marina, L.P. (2009)
173 Cal.App.4th 966, 970 [“A broad interpretation of the [ADA] statute allows
the ADA to enhance self-autonomy and human dignity in day to day living.”].)
Plaintiff has also alleged
that “Defendant owns and operates the Milliken Creek Inn and Spa, located at
1815 Silverado Trail, Napa, California” and that Plaintiff has “been denied
equal equal enjoyment of and access to the hotel location and to Defendant’s
other services, advantages, privileges, and accommodations offered to the
public through the Website.” (Id. ¶¶ 9, 20.) This would constitute the
nexus between Defendant’s website and the Milliken Creek Inn and Spa necessary
to satisfy the requirement for a place of public accommodation under Title III
of the ADA, and a “business establishment” under the Unruh Act. (See Midvale,
supra, 39 Cal.App.5th at p. 642 [“To limit the ADA to discrimination in
the provision of services occurring on the premises of a public accommodation
would contradict the plain language of the statute”] Robles v. Domino’s
Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905 ( [“Domino’s website and app
facilitate access to the goods and services of a place of public
accommodation—Domino’s physical restaurants.”].)
Therefore, Plaintiff
sufficiently pleads a violation of the Unruh Act.
2.
Motion to Strike
Defendant moves to strike Plaintiff’s “tester” allegations within ¶ 8 of
Plaintiff’s complaint and Plaintiff’s prayer for injunctive relief within ¶¶
31-33 of Plaintiff’s complaint and ¶¶ 1-3 of Plaintiff’s prayer. Plaintiff
argues that Defendant’s motion to strike should be disregarded because
Defendant failed to file or serve a notice of motion, and that the instant
motion to strike is untimely. (Response to MTS, page 10-11.) However, the Court
does not need to address these arguments as Defendant’s motion to strike fails
on its merits.
a.
Injunctive Relief
Defendant argues that Plaintiff cannot seek injunctive relief “because
Unruh does not allow for such relief.” (Motion to Strike (MTS), page 2.) According
to Defendant, Civil Code § 52 only allows for “preventative relief,” and
Plaintiff’s prayer for injunctive relief is considered “affirmative relief,”
which would be prohibited.
Civil Code Section 52 provides the remedies that may be imposed for the
violation of the Unruh Act. The section provides in pertinent part: “Whenever
there is reasonable cause to believe that any person or group of persons is
engaged in conduct of resistance to the full enjoyment of any of the rights
described in this section, and that conduct is of that nature and is intended
to deny the full exercise of those rights . . . any person aggrieved by the
conduct may bring a civil action in the appropriate court by filing with it a
complaint. The complaint shall contain the following: a request for preventive
relief, including an application for a permanent or temporary injunction,
restraining order, or other order against the person or persons responsible for
the conduct, as the complainant deems necessary to ensure the full enjoyment of
the rights described in this section.”
Plaintiff is permitted to pursue injunctive relief against Defendant for
violation of the Unruh Act.
California Courts have consistently allowed individuals to obtain
injunctive relief under the Unruh Act without differentiating between
preventative relief and mandatory relief, specifically considering the language
of Civil Code Section 52, subdivision (c)(3). (Thurston, supra, 69
Cal.App.5th at n.11 [“the complainant may seek injunctive relief”], citing Civ.
Code §52(c)(3); Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522,
535 [“In 1992, the Legislature amended the Unruh Civil Rights Act to specify
that ‘[a] violation of the right of any individual under the Americans with
Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation
of this section.’ The amendment was intended to allow persons injured by a
violation of the ADA to seek the full range of remedies provided under the
Unruh Civil Rights Act, including injunctive relief, actual damages (in
some cases treble damages), and a minimum statutory award of $4,000 per
violation”] (emphasis added and internal citations omitted); Flowers v.
Prasad (2015) 238 Cal.App.4th 930, 938 [“a disabled person asserting a
violation of section 51 may seek injunctive relief.”].) Further, the California
Supreme Court has stated that “in enforcing the [Unruh] Act, courts must
consider its broad remedial purpose and overarching goal of deterring
discriminatory practices by businesses.” (White, supra, 7 Cal.5th at p. 1025.)
In Midvale, the Court affirmed the granting of an injunction
prayed for by a blind individual attempting to use the defendant restaurant’s
website that did not have screen reading software. (Thurston v. Midvale
Corp. (2019) 39 Cal.App.5th 634, 655.) The injunction required the
defendant restaurant’s website to comply with certain accessibility guidelines.
(Id. [“[W]e find the trial court's injunction mandating compliance with
WCAG 2.0 efficient and well within the court's competence to administer. The
injunction is neither overbroad, uncertain, nor unconstitutional.”].) Similarly
here, Plaintiff, a blind individual who “requires screen reading software to
read website content and access the internet,” has alleged that he is barred
from accessing Defendant’s Website as “[t]he Website contains access barriers
that prevent free and full use by Plaintiff and other blind persons using
screen reading software.” (Compl., ¶¶ 4, 21.)
Given that Civil Code Section 52, subdivision (c)(3) provides that a plaintiff
may request any “other order against the person or persons responsible for the
conduct, as the complainant deems necessary to ensure the full enjoyment of the
rights described in this section,” Plaintiff’s prayer for injunctive relief is permitted.
Additionally, Defendant argues that Plaintiff cannot seek injunctive
relief because that would require Defendant to alter its website in violation
of Civil Code Sections 51, subdivision (d) and 52, subdivision (g).
Civil Code Section 51, subdivision (d) and 52, subdivision (g) both in
relevant part state that nothing in the Code section should be construed or
require “any construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction, alteration,
repair, or modification that is otherwise required by other provisions of law,
to any new or existing establishment, facility, building, improvement, or any
other structure . . . .” However, the addition of “any other structure” conveys
that the meaning of “any new or existing establishment, facility, building,
improvement” is limited to a “structure,” rather than also including online websites.
(See Hall St. Assocs. v. Mattel (2008) 552 U.S. 576, 586 [“[W]hen a
statute sets out a series of specific items ending with a general term, that
general term is confined to covering subjects comparable to the specifics it
follows.”].) Further, as explained above, injunctive relief has been found to
be available in cases such cases, lending support to the assertion that online
websites are not within the purview of Civil Code Section 51, subdivision (d)
and 52, subdivision (g).
Accordingly, Defendant’s request to strike Plaintiff’s prayer for injunctive
relief within ¶¶ 31-33 of Plaintiff’s complaint and ¶¶ 1-3 of Plaintiff’s
prayer is denied.
b.
Allegations of “Tester” Status
Defendant argues ¶ 8 of Plaintiff’s complaint, which refers to Plaintiff
as a “tester,” should be stricken as Plaintiff lacks standing to pursue a claim
under the Unruh Act.
A tester is an “individual[s] with [a] disability[y] who visit[s] places
of accommodation to determine their compliance with the ADA.” (Martin v. Thi
E-Commerce, LLC (2023) 95 Cal.App.5th 521, 526.) An individual has standing
under the Unruh Act, “when the person presents himself or herself to a business
with an intent to use its services but encounters an exclusionary policy or
practice that prevents him or her from using those services.” (White,
supra, 7 Cal.5th at p. 1023.) “In light of its broad preventive and
remedial purposes, courts have recognized that ‘[s]tanding under the Unruh
Civil Rights Act is broad.’” (Id. quoting Osborne v. Yasmeh
(2016) 1 Cal.App.5th 1118, 1127.)
Plaintiff alleges that “While [he] genuinely wants to avail himself of
Defendant’s goods and services as offered on Defendant’s Website, Plaintiff has
a dual motivation: Plaintiff is also a ‘tester’” and that he has filed multiple
lawsuits against various operators of commercial websites under the Unruh Act
as part of Plaintiff’s advocacy work on behalf of the civil rights of visually-impaired
persons.” (Compl., ¶ 8.) Firstly,
“testers” that advance the public interest should be “praised rather than
vilified.” (Murray v. GMAC Mortgage Corp. (7th Cir. 2006) 434 F.3d 948,
954.) Secondly, while Plaintiff alleges that she has a “dual” motive in trying
to access Defendant’s Website, this is only one of the purposes of Plaintiff
desiring access to Defendant’s website, as he alleged that “[he] genuinely
wants to avail himself of Defendant’s goods and services.” (Compl., ¶ 8.)
Defendant asserts that by Plaintiff being a “tester,” there is no “bona
fide intent” to use the services (See Thurston, supra, 69
Cal.App.5th at p. 308 [“for [Plaintiff] to prevail on her Unruh Civil Rights
Act claim against [Defendant], she had to show a ‘bona fide intent’ to book a
room”].) However, the Court must assume the allegations in Plaintiff’s
complaint are true. As mentioned above, Plaintiff alleged that he “genuinely
wants to avail himself of Defendant’s goods and services as offered on
Defendant’s Website,” which indicates bona fide intent. (Compl., ¶ 8.) Moreover,
in Midvale, the Court concluded that Plaintiff, a blind user of the
defendant restaurant’s website, had standing under the Unruh Act because
Plaintiff indicated that “she tried to access the website numerous times and
repeatedly encountered barriers. Her attempts began before and continued after
her lawsuit was filed.” (Thurston, supra, 39 Cal.App.5th at p. 653.)
Here too, Plaintiff alleges that he has attempted to “access [Defendant’s
Website] multiple times in the past, and [it] deterred Plaintiff on a regular
basis from accessing Defendant’s Website,” and that he “continues to attempt to
utilize the Website and plans to continue to attempt to utilize the Website in
the near future.” (Compl., ¶¶ 7, 24.)
Thus, Defendant’s request to strike mention of Plaintiff’s “tester”
standing within ¶ 8 of Plaintiff’s complaint is denied.
Conclusion
Thus,
Defendant’s demurrer is OVERRULED. Defendant’s motion to strike as to ¶¶8,
31-33 of Plaintiff’s complaint and ¶¶ 1-3 of Plaintiff’s prayer is DENIED.
It is so ordered.
Dated: October
15, 2024
_______________________
MEL RED RECANA
Judge of the Superior Court