Judge: Michael Small, Case: 23STCV09179, Date: 2023-09-06 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 23STCV09179    Hearing Date: September 6, 2023    Dept: 57

Plaintiffs’ complaint alleges that they are blind individuals who require screen reading software to access website content on the internet.  Plaintiffs further allege that the Defendant maintains its websites for the apartment buildings that it manages in a way that erects barriers to the ability of the Plaintiffs and other blind individuals to obtain equal access to the websites and the services related to the apartment buildings that are offered on the websites.   Plaintiffs assert that the Defendants’ maintenance of their websites in this way violates California’s Unruh Civil Act (“UCRA”) in two ways.  First, Plaintiffs claim that the Defendant has intentionally violated the UCRA because it knowingly maintains its websites in a form that is inaccessible to blind individuals and has failed to take adequate corrective measures to eliminate the barriers that the websites impose for blind individuals after having been notified of the existence of the barriers.  Second, relying on the provision of the UCRA that states that violations of the rights of any individual under the federal Americans with Disabilities Act (“ADA”) also constitute a violation of the UCRA, Plaintiffs claim that the Defendant’s maintenance of its websites in a manner that imposes barriers to blind individuals violates the ADA and thus violates the UCRA as well.  As a remedy, Plaintiffs claim that they are entitled to recover the UCRA’s statutory minimum penalty of $4,000 for each and every violation of the UCRA – that is, each time they visited the Defendant’s websites.

Pending before the Court are the Defendant’s demurrer to the Plaintiffs’ complaint and the Defendant’s motion to strike the portions of the complaint that suggest that each Plaintiff is entitled to recover statutory penalties of $4,000 for every time that they tried to access the Defendant’s websites.

Intentional Discrimination under the UCRA

Defendant's demurrer to the Plaintiffs' complaint is sustained to the extent the demurrer contends that Plaintiffs have failed to state a claim under the UCRA for intentional discrimination against them based on their disabilities.   Based on the allegations in the complaint, the proposition that Defendant intentionally discriminated against the Plaintiffs is foreclosed by Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026 ("Cot'n Wash”).  

The Plaintiffs Cot’n Wash alleged that the Defendant intentionally discriminated against blind individuals in violation of the UCRA by maintaining a retail website that was inaccessible to them because the website was incompatible with screen reading software that the Plaintiffs needed to access the website and that the Plaintiffs had made the Defendant aware of the barriers the website imposed but took not steps to remove the barriers.  (Cot’n Wash, supra, 81 Cal.App.5th at p. 1034)  The Court of Appeal affirmed  a ruling sustaining Defendant’s demurrer.  It held that although the Defendant’s  maintenance of the website in the manner alleged by the Plaintiffs had discriminatory effects on blind individuals, the allegations that the Plaintiffs informed the Defendant of these effects and Defendant did not ameliorate the effects was insufficient to establish a claim of intentional discrimination against blind individuals based on their disability under the UCRA.  (Id. at pp. 1032, 1036-1037).   The allegations of the Plaintiffs in this case are on all fours with the allegations that were held in Cot’n Wash to be insufficient to state a claim for intentional discrimination under the UCRA.

Plaintiffs argue that there is a conflict between Cot'n Wash, on the one hand, and Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, as to whether allegations along the lines of the Plaintiffs' here can state a claim for intentional discrimination based on disability in violation of UCRA, and that this Court should follow Hankins, not Cot'n Wash.  There is no conflict between the Cot'n Wash and Hankins.  The allegations in Hankins that were deemed sufficient to support a claim of intentional discrimination were different than the allegations in Cot'n Wash that were deemed insufficient.  The lack of a conflict between the two cases is evinced by the absence in Cot'n Wash, which post-dated Hankins by 14 years, of any citation by the Court of Appeal in Cot’n Wash to Hankins in the recitation of pertinent caselaw on whether the allegations of the sort in Cot'n Wash can state a claim for intentional discrimination based on disability in violation of UCRA.

The Court has determined that it is reasonably possible that Plaintiffs could amend their complaint to plead around Cot’n Wash and state a claim against the Defendant for intentional discrimination based on the Plaintiffs' disabilities in violation of UCRA.  Accordingly, the Court is sustaining the demurrer with leave to amend.  Plaintiffs are directed to file and serve an amended complaint within 21 days.

Violation of the ADA

Defendants' demurrer to the Plaintiffs' complaint is overruled to the extent that the demurrer contends that the Plaintiffs have failed to state a claim under the UCRA based on an asserted violation of the ADA.  The ADA does not require a showing of intentional discrimination -- practices that have discriminatory effects on disabled persons can violate the ADA.   In the Court's view, the allegations in the complaint are sufficient to state a UCRA claim through the ADA based on Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048 (“SDCCU”).  In that case, the Plaintiff, who was blind, alleged that the Defendant’s website was inaccessible to him.   The Court of Appeal reversed an order dismissing the Plaintiff’s complaint.  It held that the Defendant’s unintentional denial of the Plaintiff’s ability to access the website was sufficient to state an ADA claim because the denial prevented or impeded the Plaintiff’s ability to access the goods and services that the Defendant offered at its physical facilities.  (Id. at pp. 1054, 1069.)  The allegations of the Plaintiffs here in this case fall within the ambit of SDCCU.  Specifically, the Plaintiffs allege that their inability to access the Defendant’s websites impedes their ability to access the physical apartment buildings that the Defendant manages.   Defendant’s attempt in its demurrer papers to distinguish SDCCU is unavailing at the pleading stage.

Motion to Strike

The Court is granting Defendant’s motion to strike with leave to amend.   Defendant has the  better of the argument as to the statutory text.  The Court does not read the UCRA to authorize the recovery of multiple statutory penalties of $4,000 for every repeat visit to a website that violates the ADA.  Plaintiffs have cited no California state court precedent to the contrary.  For the most part, federal cases applying the UCRA have held that multiple penalties for the same alleged ADA violation are unavailable for repeat visits where plaintiffs have not sought and received assurances that the violation has been corrected before making a return visit.