Judge: Nathan Vu, Case: 2022-01266742, Date: 2022-11-14 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Demurrer

Defendant Don Robert Jewelers, Inc.’s demurrer to the first cause of action of the Complaint is OVERRULED.

Defendant Don Roberto Jewelers, Inc. demurs to the first cause of action of the Complaint filed by Plaintiff Brittney Mejico.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)

Unruh Civil Rights Act

The first cause of action of the Complaint states a cause of action for violation of the Unruh Civil Rights Act (Unruh Act). (See Civil Code, § 51 et seq.)

The Unruh Act was enacted to “create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments.” (Flowers v. Prasad (2015) 238 Cal. App. 4th 930, 937, citations omitted.)

The substantive protections against discrimination established by the Unruh Civil Rights Act states: “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, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civil Code, § 51, subd. (b).)

In addition, the Unruh Act incorporates the protections created by the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). (Flowers v. Prasad, supra, 238 Cal. App. 4th at p. 937 [“A violation of the right of any individual under the [ADA] shall also constitute a violation of this section.”]; Civil Code, § 51, subd. (f).) Thus, a plaintiff who pleads a violation of the ADA does not need to allege anything further to state a claim under the Unruh Act.

However, if a plaintiff cannot plead a violation of the ADA, the plaintiff may still state a claim under the Unruh Act by pleading intentional discrimination in violation of Civil Code section 51. (Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 670-72.)

ADA and Website Nexus to Physical Location

Defendant first argues that the first cause of action fails because Plaintiff has not plead that Defendant’s website has a nexus to a physical location and therefore, Defendant’s website cannot be a “public accommodation” under the ADA.

However, two recent state cases point towards an expansive interpretation of “public accommodation”. The Court of Appeal recently held 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.” (Thurston v. Midvale Corp. (2019) 39 Cal. App. 5th 634, 644.) However, in that case, the court declined to address “the wholly hypothetical question whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.” (Ibid.)

The Court of Appeal reasoned that not allowing for an ADA claim under those circumstances would “run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.” (Id. at pp. 644; see also ibid. [“Excluding websites just because they are not built of brick-and-mortar runs counter to the purpose of the statute.”].)

In addition, the Supreme Court has analogized a website unconnected to a physical location as being similar to brick and mortar store: “[V]isiting 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 (2019) 7 Cal. 5th 1019, 1023.)

Some federal circuits, including the First, Second, and Seventh Circuits, hold that the ADA applies to websites regardless of any nexus to a physical location. (See Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New England, Inc. (1st Cir. 1994) 37 F.3d 12, 20; Pallozzi v. Allstate Life Ins. Co. (2nd Cir. 1999) 198 F.3d 28, 32; Does v. Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557, 559.)

Other federal courts of appeal, including the Third, Sixth, and Ninth Circuits, hold that a physical place or nexus to a physical place must exist for the ADA to apply. (See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Ford v. Schering-Plough Corp. (3rd Cir. 1998) 145 F.3d 601, 612, 614 (3d Cir. 1998); Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1114–15.)

However, the Ninth Circuit has distinguished Weyer v. Twentieth Century Fox Film Corp. to extend the reach of the ADA to websites that are connected to a physical place. (See Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905.) In that case, the Ninth Circuit looked to the Department of Justice’s guidance on ADA compliance, which indicated that websites may be public accommodations. (Ibid.) Thus, the Ninth Circuit held that the ADA applies to websites “even though customers predominantly access them away from the public accommodation restaurant.” (Ibid.) At the same time, it was important that the website was connected to a physical place: “Unlike the insurance policy in Weyer, Domino's website and app facilitate access to the goods and services of a place of public accommodation—Domino's physical restaurants.” (Ibid.)

In this case, Plaintiff alleges that Defendant operates brick and mortar retail locations in this state and this county. (Compl., ¶¶ 6 & 9.) Plaintiff also alleges that Defendant’s website has a connection to Defendant’s physical locations in that the website points customers towards the physical locations and “is heavily integrated with these physical retail locations, and provides advertising and marketing information helpful to influencing consumers to visit and shop at its physical retail locations. (Compl., ¶¶ 10 & 13.) Finally, Plaintiff alleged that the deficiencies in Defendant’s Website deterred her from visiting Defendant’s retail location. (Compl., ¶ 7.)

Plaintiff thus pleads a sufficient nexus between Defendant’s website and Defendant’s physical locations such that the website is a “public accommodation” under the ADA, pursuant to Thurston v. Midvale Corp. and Robles v. Domino's Pizza, LLC. The complaint thus pleads a violation of the ADA sch that the Unruh Act cause of action withstands the demurrer. There is no need for the court to address the issue of whether a website unconnected to a physical location can be the basis for an ADA claim or whether Plaintiff sufficiently plead a claim for intentional discrimination under the Unruh Act.

Plaintiff shall give notice of this ruling.