Judge: Salvatore Sirna, Case: 22PSCV03099, Date: 2023-03-27 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV03099    Hearing Date: March 27, 2023    Dept: G

Defendant The Kroger Co.’s Demurrer to Plaintiff Rebecca Castillo’s Complaint 

Respondent: Plaintiff Rebecca Castillo

Defendant The Kroger Co.’s Motion to Strike Portions of Plaintiff’s Complaint

Respondent: Plaintiff Rebecca Castillo

TENTATIVE RULING

Defendant The Kroger Co.’s Demurrer to Plaintiff Rebecca Castillo’s Complaint is OVERRULED in its entirety.

Defendant The Kroger Co.’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED with twenty (20) days leave to amend.

BACKGROUND

This is a disability rights action. Plaintiff Rebecca Castillo is a visually impaired and legally blind individual. The Kroger Co. (Defendant) owns and operates a commercial and publicly accessible website named “www.picknsave.com” that provides consumers with access to goods, services, and information related to Defendant’s brick-and-mortar locations.

On separate occasions since August 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 video and slideshow; (5) an inability to create an account due to an inaccessible signup system; (6) an inability to locate brick-and-motor locations due to an inaccessible locations link; (7) an inability to browse products due to inaccessible product links and descriptions; and (8) an inaccessible checkout system.

On December 29, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA).

On February 22, 2023, Defendant filed the present demurrer and motion to strike. Prior to filing on February 16, Defendant’s counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Kim Decl., ¶ 3.)

A hearing on the demurrer and motion to strike is set for March 27, 2023. A case management conference and OSC Re: Failure to File Proof of Service are set for May 16.

REQUEST FOR JUDICIAL NOTICE

Defendant requests for judicial notice of trial court filings and a minute order in other cases. The court finds this request improper and without legal authority.  The request is DENIED as the filings and minute orders in other cases are neither precedent nor binding authority for this court. (B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 627, fn. 2.)

EVIDENTIARY OBJECTIONS

Plaintiff’s evidentiary objection to Defendant’s memorandum of points and authorities is OVERRULED as arguments are not evidence. (Torrecillas v. Fitness International, LLC (2020) 52 Cal.App.5th 485, 497.)

ANALYSIS

Demurrer

Defendant demurs to Plaintiff’s single cause of action for violation of the UCRA, arguing Plaintiff fails to allege sufficient facts to state a cause of action. For the following reasons, the court OVERRULES Defendant’s demurrer to Plaintiff’s Complaint in its entirety.

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.)

Discussion

In this case, Defendant claims Plaintiff’s complaint fails to state a cause of action for violation of UCRA because (1) Plaintiff failed to establish standing, (2) Plaintiff failed to allege injury with sufficient particularity, (3) Plaintiff failed to allege denial of access to a brick-and-motor location, (4) Plaintiff failed to allege facts establishing willful and affirmative misconduct, and (5) Plaintiff failed to establish Plaintiff is a bona fide patron.

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).) To establish standing, “an individual bringing an [UCRA] claim against an online business must allege, for purposes of standing, that [plaintiff] visited the business’s website, encountered discriminatory terms, and intended to make use of the business’s services.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032 (White).)

In this case, Plaintiff alleges Plaintiff visited Defendant’s website on multiple occasions since August 2022 (Complaint, ¶ 38), encountered barriers to accessibility (Complaint, ¶ 36), and “genuinely wants to avail herself of Defendant’s goods and services as offered on Defendant’s Website, including the service that is the Website itself.” (Complaint, ¶ 9.) Thus, Plaintiff has alleged sufficient injury to bring an UCRA action.

Defendant argues Plaintiff failed to allege denial of access to a place of public accommodations because Plaintiff did not allege which brick-and-mortar location Plaintiff was denied access to. However, the court disagrees as inaccessibility allegations as to a website’s information on the location and services of brick-and-mortar locations is sufficient to establish a nexus between the website and Defendant’s physical locations. (SDCCU, supra, 50 Cal.App.5th at p. 1069.) Here, Plaintiff explicitly alleged Plaintiff was (1) unable to create an account with Defendant, (2) was unable to find a brick-and-mortar location due to an inaccessible locations link, and (3) was unable to browse products because product links and descriptions were inaccessible. (Complaint, ¶ 36(e)-(h).) Because of these barriers, Plaintiff alleges Plaintiff has been deterred from visiting Defendant’s brick-and-mortar locations. (Complaint ¶ 39.) Thus, Plaintiff has alleged a sufficient nexus between website inaccessibility issues and Defendant’s brick-and-mortar locations. While Defendant argues Plaintiff’s inability to locate Defendant’s brick-and-mortar locations can be cured through searching a third-party site such as Google, similar reasoning has already been rejected as it “would improperly exclude ADA coverage for many vital services that aid in connecting individuals to a business’s physical site.” (Id., at p. 1071.)

Next, Defendant contends Plaintiff failed to allege willful or affirmative misconduct. 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 (Cot’n Wash).) Here however, Plaintiff has already alleged sufficient facts to establish an UCRA claim for violation of the ADA. Thus, even if Defendant is correct that Plaintiff failed to establish willful or affirmative misconduct, Plaintiff’s Complaint still states a claim for relief pursuant to UCRA. (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 944 [“[A] demurrer will not lie to a part of a cause of action.”].)

Lastly, Defendant maintains Plaintiff is not a bona fide patron of Defendant’s website as required by Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299 (Thurston). However, as in Thurston, Defendant here has conflated standing requirements with the merits of Plaintiff’s claim. (Id., at p. 309.) As the court noted, “[b]eyond the pleading stage,¿if a plaintiff wants to prevail on an [UCRA] claim, he or she must present sufficient evidence to overcome the online defendant's argument that he or she ‘did not actually possess a¿bona fide intent¿to sign up for or use its services.’” (Id., at p. 307, quoting White, supra, 7 Cal.5th at p. 1032.) At the pleading stage, a plaintiff can establish standing by simply alleging an intent to use Defendant’s services. (Id., at p. 309.) Here, as noted above, Plaintiff sufficiently alleged an intent to utilize Defendant’s services through its website. Thus, Plaintiff has alleged sufficient facts to state a claim for violation of UCRA.

Accordingly, Defendant’s demurrer is OVERRULED.

Motion to Strike

Defendant moves to strike (1) Plaintiff’s allegations of intentional discrimination and (2) Plaintiff’s request for injunctive relief. For the following reasons, the court GRANTS Defendant’s motion.

Legal Standard

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).

Intentional Discrimination

Defendant seeks to strike Plaintiff’s intentional discrimination allegations on the ground that Plaintiff has failed to sufficiently allege willful or affirmative misconduct. The court agrees.

In establishing willful or affirmative misconduct, “[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.’” (Cot’n Wash, supra, 81 Cal.App.5th at p. 1036, 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 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 Cot’n Wash is poorly reasoned and misapplies 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 Cot’n Wash, Ruiz involved a claim pursuant to 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.) However, the Ninth Circuit distinguished Hankins and held no intentional discrimination 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.

Thus, because Plaintiff has not alleged sufficient facts to establish Defendant’s allegedly discriminatory web design policy was intentionally or willfully discriminatory, the court GRANTS Defendant’s motion to strike Plaintiff’s allegations in paragraph 48 with leave to amend.

Injunctive Relief

Defendant seeks to strike Plaintiff’s request for injunctive relief on the grounds that injunctive relief is not available and even if it was, the type of injunctive relief requested is not allowable. The court agrees.

Defendant argues that injunctive relief for violations of UCRA is limited to intentional discrimination. Defendant points to Civil Code section 52, subdivision (c), which states as follows:

“Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: . . .  A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.” (Civ. Code, § 52, subd. (c)(3), emphasis added.)

Defendant argues the use of “intended” in this provision limits the availability of injunctive relief pursuant to Civil Code section 52 to intentional violations. Defendant also contrasts this provision with Civil Code section 52, subdivision (a), which allows damages and attorney fees against “[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6 . . . .”

“In construing a statute, a court's objective is to ascertain and effectuate legislative intent. [Citation.] To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) The court “give[s] the words their usual and ordinary meaning [Citation], while construing them in light of the statute as a whole and the statute’s purpose [Citation].” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529-530.) “If there is no ambiguity in the language, [the court] presume[s] the Legislature meant what it said and the plain meaning of the statute governs.” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) “Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) There is also a “general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.)

In this case, the court finds the language of Civil Code section 52, subdivision (c) unambiguously clear. While the damages provision in Civil Code section 52, subdivision (a) is broadly worded and applies to any denial of rights or discrimination, subdivision (c) allows injunctive relief for conduct “intended to deny the full exercise of those rights.” Even in light of the judicial policy for liberal interpretation of UCRA, the court cannot ignore the statute’s clear language. Furthermore, such an interpretation does not conflict with the legislative policy behind the statute. In 1992, the California Legislature amended UCRA to incorporate protections provided by the ADA and “[t]he general intent of the legislation was expressed in an uncodified section: ‘It is the intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101–336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669, quoting Stats.1992, ch. 913, § 1, p. 4282.)

By incorporating the ADA into UCRA, the Legislature allowed plaintiffs to obtain damages while the ADA only allowed plaintiffs to obtain injunctive relief. The legislative purpose of UCRA is not frustrated by limiting UCRA injunctive relief to intentional discrimination as a plaintiff who was subjected to an ADA violation can obtain injunctive relief pursuant to the ADA. In this case however, Plaintiff chose not to bring a cause of action for violation of the ADA and did not establish intentional discrimination. Thus, Plaintiff cannot seek injunctive relief.

In making this finding, the court notes caselaw suggests injunctive relief is allowed. For example, courts have held “[t]he amendment was intended to allow persons injured by a violation of the ADA to seek the full range of remedies provided under the [UCRA], including injunctive relief, actual damages (in some cases treble damages), and a minimum statutory award of $4,000 per violation.” (Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522, 535; Jankey v. Lee (2012) 55 Cal.4th 1038, 1044; see also Flowers v. Prasad (2015) 238 Cal.App.4th 930, 938 [“Civil Code section 52, which provides remedies for violations of section 51, authorizes a damages award of no less than $4,000 and injunctive relief.”]; Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058 [“Section 52 is the enforcement mechanism for the substantive provisions in section 51.”].) However, each of these cases broadly stated Civil Code section 52 provides remedies for violations of Civil Code section 51 and none of these cases addressed the actual language of Civil Code section 52, subdivision (c), include its use of the word “intended.”

Accordingly, because Plaintiff is only entitled to damages and not injunctive relief pursuant to Civil Code section 52, the court GRANTS Defendant’s motion to strike Plaintiff’s request for injunctive relief with leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s Complaint is OVERRULED in its entirety. Furthermore, Defendant’s motion to strike portions of Plaintiff’s Complaint is GRANTED with twenty (20) days leave to amend.