Judge: Robert B. Broadbelt, Case: 21STCV36304, Date: 2022-08-08 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 21STCV36304    Hearing Date: August 8, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Ivyconnect, Inc.

RESPONDING PARTY:        Plaintiff Rusty Rendon

Demurrer to Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer.

BACKGROUND

Plaintiff Rusty Rendon (“Plaintiff”) filed this action against defendant Ivyconnect, Inc. (“Defendant”) on October 1, 2021, alleging one cause of action for violation of the Unruh Civil Rights Act based on the allegation that Defendant has denied visually-impaired individuals, including Plaintiff, equal enjoyment of and access to its website due to the website’s accessibility barriers.

Defendant moves the court for an order sustaining its demurrer to Plaintiff’s Complaint on the ground that Plaintiff, as a matter of law, cannot allege a violation of the Unruh Civil Rights Act.

JUDICIAL NOTICE

The court grants Plaintiff’s request for judicial notice.  (Evid. Code § 452, subd. (c), (d).)

The court denies Defendant’s request for judicial notice, filed on June 14, 2022, as an improper attempt to file new evidence in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

EVIDENTIARY OBJECTIONS

The court rules on Plaintiff’s objections, filed June 8, 2022, as follows:

Objection No. 1 is sustained.

Objection Nos. 2 and 3 are overruled. 

DEMURRER

The court sustains Defendant’s demurrer to Plaintiff’s Complaint because Plaintiff fails to state facts sufficient to constitute a cause of action for violation of the Unruh Civil Rights Act since Plaintiff fails to allege facts establishing either (1) a violation of the Americans with Disabilities Act (“ADA”) or (2) intentional discrimination.  (Code Civ. Proc., § 430.10, subd. (e); Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 [explaining that a cause of action under the Unruh Civil Rights Act may be brought under two theories: (1) a violation of the ADA or (2) a denial of access based on intentional discrimination].)

First, the court finds that Plaintiff fails to allege facts sufficient to establish a violation of the ADA because Plaintiff does not allege denial to a “place of public accommodation” since Plaintiff has alleged denial of access to a website “without any connection to a physical space.”  (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 [holding that the ADA applies to websites connected to a physical place of accommodation without addressing whether the ADA governed a website unconnected to a physical place]; Martinez v. Cot’n Wash, Inc. (August 1, 2022 B314476) ___ Cal.App.5^th ___ [2022 WL 3025828 at p. *1] [holding that, under current law, the ADA does not apply to retail websites without any connection to a physical space].)  Because Plaintiff has not alleged that Defendant’s website is connected to a physical space, Plaintiff cannot maintain his cause of action for violation of the Unruh Civil Rights Act that is based on a violation of the ADA.  (Civ. Code, § 51, subd. (f); Compl., ¶¶ 10, 16-18, 20, 24.)

            Second, the court finds that Plaintiff fails to allege facts sufficient to establish a violation of the Unruh Civil Rights Act based on a theory of intentional discrimination since Plaintiff has not alleged willful misconduct on the part of Defendant that goes beyond the use and failure to address a policy that is neutral on its face.  (Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1238 [“a policy that is neutral on its face is not actionable, even if it has a disproportionate impact on a protected class”]; Martinez v. Cot’n Wash, Inc., supra, ___ Cal.App.5^th ___ [2022 WL 3025828 at p. *4].)

            Because Plaintiff has failed to state facts sufficient to constitute a cause of action for violation of the Unruh Civil Rights Act under either theory, the court sustains Defendant’s demurrer to Plaintiff’s Complaint.  (Code Civ. Proc., § 430.10, subd. (e).)

ORDER

            The court sustains defendant Ivyconnect, Inc.’s demurrer to Plaintiff’s Complaint.  (Code Civ. Proc., § 430.10, subd. (e).)

            The court grants plaintiff Rusty Rendon 20 days leave to file a First Amended Complaint, to the extent amendment is possible, to allege either (1) a physical nexus between Defendant’s website and a physical space, or (2) facts establishing willful, affirmative misconduct evidencing a discriminatory intent that goes beyond the application of a facially neutral policy.

            The court orders defendant Ivyconnect, Inc. to give notice of this order.

IT IS SO ORDERED.

DATED:  August 8, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court