Judge: Robert S. Draper, Case: 20STCV02693, Date: 2023-03-09 Tentative Ruling

Case Number: 20STCV02693    Hearing Date: March 9, 2023    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Plaintiff Andrew Baracco’s Motion for Summary Judgment is DENIED.

Defendant Greiners Clothing, LLC’s Motion for Summary Judgment is DENIED.

The Court finds that a triable issue of material fact exists as to whether a nexus exists between Defendant’s website and its place of public accommodation. 

FACTUAL BACKGROUND

This is an action for violation of the Unruh Civil Rights Act (“Unruh”). The Complaint alleges as follows.

Plaintiff Andrew Baracco (“Plaintiff”) is visually impaired. (Compl. ¶ 2.) Plaintiff attempted to access Defendant Greiners Clothing, LLC’s (“Defendant”) website, but found that it was not fully accessible to screen-reading technology used by blind individuals. (Compl. ¶ 3.) The inaccessibility of Defendant’s website has deterred Plaintiff from visiting Defendant’s brick and mortar locations that offer Defendant’s products for sale. (Compl. ¶ 18.)

PROCEDURAL HISTORY

On January 21, 2020, Plaintiff filed the Complaint asserting a single cause of action for Violation of the Unruh Civil Rights Act.

On March 4, 2021, Defendant filed an Answer.

On March 19, 2021, the case was reassigned to the instant Department 78.

On August 12, 2021, Plaintiff filed the instant Motion for Summary Judgment.

On November 15, 2022, Defendant filed the instant Motion for Summary Judgment.

On January 13, 2023, Plaintiff filed an Opposition to Defendant’s Motion for Summary Judgment.

As of March 7, 2023, Defendant has filed neither an Opposition to Plaintiff’s Motion for Summary Judgment or a Reply to its own Motion for Summary Judgment.

DISCUSSION

      I.          EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections Numbers 1-9 are OVERRULED.

    II.          REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)  

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)  However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

Here, Defendant requests judicial notice of the following:

1.    Los Angeles Superior Court register of actions, listing the 168 Civil Rights/Discrimination actions brought by Plaintiff Andrew Baracco.

Defendant’s Request for Judicial Notice is DENIED as irrelevant to the instant matter.

  III.          MOTION FOR SUMMARY JUDGMENT

Both Plaintiff and Defendant move for summary adjudication of the single cause of action for Violation of the Unruh Civil Rights Act.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

A.   Unruh Civil Rights Act

Both parties move for summary adjudication of the single cause of action for violation of the Unruh Civil Rights Act.

The Unruh Civil Rights Act (“Unruh Act”) prohibits discrimination on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. (See Civ. Code § 51.) Civil Code Section 51 provides that any violation of the Americans with Disabilities Act of 1990 (“ADA”) constitutes a violation of the Unruh Act. (See id., § 51(f); Jankey v. Song Koo Lee (2012) 55 Cal.4th 1038, 1044 (finding violations of the ADA are per se violations of the Unruh Act).) A plaintiff seeking damages for violation of the Unruh Act based on a violation of the ADA pursuant to section 51(f) need not prove intentional discrimination. (See Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664-65.)  

“[T]o prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” (Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc. (9th Cir. 2010) 603 F.3d 666, 670.)  

Here, Defendant does not contend that Plaintiff is not disabled under the ADA, or that Defendant’s website is in compliance with the ADA. (PUMF Nos. 1, 16.) Instead, Defendant contends that the website does not constitute a place of public accommodation as it has no nexus to a physical business establishment.

A.   Place of Public Accommodation

Defendant contends that, under the recently decided Martinez v. Cot’n Wash, Inc. (2021) 81 CA.5^th 1026, Defendant’s website does not constitute a place of public accommodation under the ADA as it has no nexus to any brick and mortar establishment.

In Martinez, plaintiff alleged defendant violated the Unruh Act by maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software. Defendant did not offer any products or services at any physical location.

The trial court dismissed the Complaint on demurrer, finding that a website was not a business establishment under the ADA, and that the Complaint did not state facts sufficient to demonstrate intentional discrimination.

The Court of Appeal affirmed. The Martinez Court found that “the language of the statute, when considered in the context of Congress's failure to act and the DOJ's silence in terms of formal guidance, does not permit us to adopt an interpretation of the statute that is not dictated by its language, especially in the face of the legislative and agency inaction described above.” (Martinez at p. 1052.) Accordingly, the Martinez Court held that a website without any nexus to a brick and mortar establishment cannot sustain a violation of the ADA.

Here, Defendant note that no products are available for purchase from its website, customers cannot reserve services on the website, and Customers cannot review availability of merchandise in store. (Bowers Decl. ¶¶ 3-4.) Accordingly, Defendant argues, Defendant’s website has no nexus to a brick and mortar establishment and is not subject to the ADA. 

In Opposition, Plaintiff notes that unlike the retailer in Martinez, Defendant does maintain a brick and mortar establishment. Moreover, Defendant notes that on Defendant’s website a prospective customer can find information about brands, collections, and styles of good available in Defendant’s stores; the locations, operating times and consumer policies of Defendant’s retail stores; how customers can be measured and fitted in Defendant’s stores; and, as of 2020, information regarding medical masks available for purchase, along with their price and delivery time. (SSUF Nos. 4-8.)

Because of this, Plaintiff argues that Martinez is inapposite, and Thurston v. Midvale Corp. (2019) 252 Cal.App.5^th 634 is controlling.

In Thurston, plaintiff brought suit for violation of Unruh under the ADA, arguing that defendant’s website was not ADA compliant. The trial court granted summary judgment in plaintiff’s favor. The Thurston Court affirmed, rejecting defendant’s argument that “its website is not an extension of the services offered by its dine-in only restaurant because a customer could not order a meal and have it delivered.” (Thurston at p. 645.) Instead, the Court found that because a customer could study the menu and make a reservation for a meal at defendant’s restaurant, “the customer is simply speeding up his experience at the physical location: . . .his table will be ready when he arrives at [defendant’s restaurant.]” (Ibid.)

The Court finds that neither Thurston nor Martinez is on-point here, where the evidence shows that Defendant’s website has information regarding defendant’s brick and mortar locations, but a consumer cannot purchase, browse defendant’s entire catalogue, or otherwise “speed up his experience at the physical location.”

Accordingly, the Court finds that there exists a triable issue of material fact as to whether Defendant’s website constitutes a place of public accommodation under the ADA, and both Motions for Summary Judgment are DENIED on this ground.

B.   Ownership of the Brick and Mortar Locations

Next, Defendant contends that summary judgment should be granted as Defendant only maintains one brick-and-mortar location in Florida, and the Los Angeles brick-and-mortar location referred to in Plaintiff’s Complaint has since closed, and was owned by a subsidiary of Defendant.

Defendant provides no authority as to why this information necessitates summary judgment, and the Court finds it irrelevant to the instant motion.

Accordingly, both Plaintiff’s and Defendant’s Motion for Summary Judgment are DENIED.

DATED: March 9, 2023

______________________________

Hon. Robert S. Draper

Judge of the Superior Court