Judge: Salvatore Sirna, Case: 22PSCV01571, Date: 2023-01-19 Tentative Ruling

Case Number: 22PSCV01571    Hearing Date: January 19, 2023    Dept: G

Defendant The Finish Line, Inc.’s Demurrer to Plaintiff’s Complaint 

Respondent: Plaintiff Rebecca Castillo

Defendant The Finish Line, Inc.’s Motion to Strike Portions of Plaintiff’s Complaint

Respondent: Plaintiff Rebecca Castillo

TENTATIVE RULING

Defendant The Finish Line, Inc.’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendant The Finish Line, Inc.’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.

BACKGROUND

This is a disability rights action. Plaintiff Rebecca Castillo is a visually impaired and legally blind individual. The Finish Line, Inc. (Defendant) owns and operates a commercial and publicly accessible website that provides consumers with access to goods, services, and information related to Defendant’s brick-and-mortar locations.

Starting in September 2022, Plaintiff visited Defendant’s website and alleges the following barriers to access existed: (1) incorrect labels or lack of alt-text for graphics, links, and buttons; (2) multiple unlabeled or mislabeled buttons; (3) multiple pages with insufficient navigational headings; (4) an inaccessible slideshow; (5) an inability to browse products due to inaccessible product links and descriptions; and (6) an inaccessible checkout system.

On October 31, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA).

On December 12, 2022, Defendant filed the present demurrer. Prior to filing on December 6, Defendant’s counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Brown Decl., ¶ 7.)

A hearing on the demurrer and motion to strike is set for January 19. A case management conference is set for March 28.

REQUESTS FOR JUDICIAL NOTICE

Both parties’ requests to take judicial notice of court orders and judgments in federal district court cases are GRANTED, although the court notes such decisions are merely persuasive and not binding authority for this court. (See Evid. Code, § 452, subd. (d).)

Defendant’s request to take judicial notice of the “Website Accessibility Policy” on its website is GRANTED pursuant to Evidence Code section 452, subdivision (h). (See City and County of San Francisco v. HomeAway.com Inc. (2018) 21 Cal.App.5th 1116, 1123, fn. 2 [holding court may take judicial notice of the existence but not the truth of a website policy].)

Plaintiff’s request to take judicial notice of search results from the website of the California Secretary of State is GRANTED pursuant to Evidence Code section 452, subdivision (c).

Defendant’s request to take judicial notice of an order from an unrelated case before the Superior Court of California, County of Los Angeles is DENIED as only the decisions of the California Supreme Court and Court of Appeal are binding precedent on this court.

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿ 

ANALYSIS

Defendant demurs to Plaintiff’s complaint, arguing Plaintiff cannot state a claim for violation of the UCRA. For the following reasons, the court disagrees.

Pursuant to the UCRA, “All persons within the jurisdiction of this state . . . no matter what their . . . disability . . . 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).) “A plaintiff can recover under the [UCRA] on two alternate theories: (1) a violation of the ADA [Civil Code section 51, subd. (f)]; or (2) denial of access to a business establishment based on intentional discrimination.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 (SDCCU).)

UCRA Violations

Defendant first argues that Plaintiff has failed to plead sufficient facts to establish intentional discrimination. The court ­agrees.

Pursuant to the UCRA, if a claim is not an ADA violation, the plaintiff must prove the discrimination was intentional or willful and affirmative misconduct. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036 (Martinez).) “A claimant may not ‘rel[y] on the¿effects¿of a facially neutral policy on a particular group . . . to infer¿solely¿from such effects a discriminatory intent.’” (Ibid, quoting Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854 (Koebke).

In this case, Plaintiff alleges “[b]ased on information and belief, it is Defendant's policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s Website . . . .” (Complaint, ¶ 31.) Plaintiff alleges “Defendant has engaged in acts of discrimination” by constructing and maintaining an inaccessible website, failing to construct and maintain a website that is sufficiently intuitive for those who are visually impaired, and failing to take corrective action in the face of substantial harm and discrimination to blind and visually-impaired consumers. (Complaint, ¶ 42) Plaintiff also alleges Defendant “lacks a plan and policy reasonably calculated to make its website fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers, including Plaintiff.” (Complaint, ¶ 43.) Lastly, Plaintiff alleges Defendant engaged in intentional discrimination because “Defendant has constructed a website that is inaccessible to Plaintiff; Defendant maintains the Website in this inaccessible format; and, Defendant has failed to take action to correct and remove these barriers even after being on notice of the discrimination that such barriers cause to persons with Plaintiff's disability.” (Complaint, ¶ 48.)

Here, the facts alleged by Plaintiff do not establish Defendant engaged in intentional discrimination. Instead, they merely establish Defendant operated a website that contained barriers for visually impaired users without any additional facts suggesting the denial of access was intentionally aimed at visually impaired users. “Although ‘evidence of disparate impact [may] be probative of intentional discrimination in some cases’ under [UCRA], it cannot alone establish such intent.” (Ibid, quoting Koebke, supra, 36 Cal.4th at p. 854.) Thus, on their own, Plaintiff’s pleadings are insufficient to establish such intent.

Plaintiff argues Martinez is poorly reasoned and misapplies the holding in Koebke. Instead, Plaintiff argues this court should follow Ruiz v. Musclewood Inv. Props., LLC (2018) 28 Cal.App.5th 15 (Ruiz), and Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510 (Hankins). However, as noted in Martinez, Ruiz involved a claim under the Disabled Persons Act (DPA) which does not require intentional discrimination as required pursuant to UCRA. (Martinez, supra, 81 Cal.App.5th at p. 1037-1038.) In Hankins, a policy preventing restaurant patrons from using a first-floor restroom was intentionally discriminatory against physically handicapped individuals when the restroom for customer use was up a flight of stairs. (Hankins, supra, 63 Cal.App.4th at p. 518-519.)

The Ninth Circuit distinguished Hankins and held no intentional discrimination existed when a news website failed to provide close-captioned videos to its entire audience on a neutral basis, as the site was not intentionally withholding captioned videos from the hearing-impaired that were otherwise available. (Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 426-427.) Similarly, here, Defendant’s alleged policy of failing to maintain an accessible website applies to all its visitors. While Plaintiff also argues a facially neutral policy could constitute proxy discrimination, Plaintiff admits that is a form of disparate treatment, which is not the object of UCRA. (Koebke, supra, 36 Cal.4th at p. 853.)

Thus, because Plaintiff has not alleged sufficient facts to establish Defendant’s allegedly discriminatory web design policy was intentionally or willfully discriminatory, Plaintiff cannot establish intentional discrimination under UCRA.

Therefore, Plaintiff’s claim under UCRA may only proceed under a theory of an ADA violation.

ADA Violations

Defendant next contends that Plaintiff’s UCRA claims fails because relief under the ADA is mooted by the presence of another federal court judgment granting injunctive relief under the ADA. The court disagrees.

“[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) Here, both Defendant and Plaintiff concede injunctive relief is the only remedy available. (Motion, p. 16:5-6; Opp., p. 5:26.) Defendant points to a federal court consent judgment entered into between another plaintiff and “The Finish Line, Inc.” on that plaintiff’s ADA claims. (Defendant’s RJN (Request for Judicial Notice), Ex. 1.) Defendant argues that consent judgment already imposes an injunction on Defendant to comply with the ADA.

Here however, Plaintiff’s cause of action is for violation of UCRA, not the ADA. The incorporation of the ADA into state disability statutes does not create a federal question issue. (Louie v. BFS Retail & Commercial Operations, LLC (2009) 178 Cal.App.4th 1544, 1555-1556, citing Wander v. Kaus (9th Cir. 2002) 304 F.3d 856, 857.) Thus, while Plaintiff seeks relief for violations of the ADA, Plaintiff’s claim for relief is under UCRA.

In its reply brief, Defendant argues Plaintiff failed to address whether there is an actionable ADA violation. (Reply, 7:18-28.) However, as the moving party, Defendant bears the burden of establishing how and why Plaintiff’s complaint fails to state a claim. In the demurrer, Defendant did not address whether Plaintiff plead sufficient facts to allege a violation of the ADA, instead arguing Plaintiff’s claim was moot because injunctive relief had already been provided.

Thus, because the court rejects Defendant’s argument that Plaintiff’s UCRA claim under an ADA violation theory is moot, Defendant has not established Plaintiff’s inability to state a claim for relief under UCRA. (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 944 [“[A] demurrer will not lie to a part of a cause of action.”].)

Accordingly, the court OVERRULES Defendant’s demurrer.

Motion to Strike

Defendant moves to strike portions of Plaintiff’s Complaint on the grounds that (1) Plaintiff is not entitled to more than one penalty under Civil Code section 52 and (2) deterrence damages under Civil Code section 55.56 are not available for website accessibility claims. For the following reasons, the court DENIES Defendant’s motion.

Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

An immaterial or irrelevant allegation includes “(1) An allegation that is not essential to the statement of a claim or defense,” “(2)¿An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense,” or “(3)¿A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10.)

Statutory Penalties

Defendant argues Plaintiff is not entitled to statutory penalties for each website visit. The court disagrees.

Pursuant to Civil Code section 55.56, “Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.” (Civ. Code, § 55.56, subd. (a).) “A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.” (Civ. Code, § 55.56, subd. (b).

In this case, Defendant argues damages under Civil Code section 55.56 are unavailable because Plaintiff does not allege a construction-related accessibility claim. However, this argument has no merit as construction-related accessibility claims are not limited to physical barriers and include websites as well. (See Alonzo v. Kam Sang Company, Inc. (C.D. Cal., Mar. 22, 2022, No. CV 21-8648-GW-ASx) 2022 WL 3636165, *2 [collecting cases].) Here, Plaintiff alleges the accessibility issues of Defendant’s website deterred Plaintiff from accessing the website and visiting Defendant’s brick-and-mortar locations. (Complaint, ¶ 39.) Thus, Plaintiff has alleged sufficient facts to support a request for deterrence damages.

Accordingly, Defendant’s motion to strike on this ground is DENIED.

CONCLUSION

Based on the foregoing, Defendant’s demurrer is OVERRULED and Defendant’s motion to strike is DENIED.

Defendant to file its Answer to Plaintiff’s Complaint within twenty (20) days.