Judge: Stephen I. Goorvitch, Case: 23STCV18304, Date: 2024-03-14 Tentative Ruling

Case Number: 23STCV18304    Hearing Date: March 14, 2024    Dept: 39

Dominick Martin v. Ohana Brewing Company

Case No. 23STCV18304

Demurrer and Motion to Strike

            Dominick Martin (“Plaintiff”) filed this action against the Ohana Brewing Company (“Defendant”) asserting a single cause of action for violations of the Unruh Civil Rights Act, California Civil Code section 51, based upon violations of the Americans with Disabilities Act (the “ADA”).  Plaintiff alleges that he is “permanently blind and uses screen readers in order to access the internet and read website content.”  (Complaint, ¶ 7.)  Plaintiff alleges that Defendant’s website is not accessible.  (Complaint, ¶¶ 4, 7.)  Now, Defendant demurs to the complaint and moves to strike the prayer for injunctive relief and allegations concerning “tester standing.”

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Defendant argues that its website does not fall within the scope of the ADA.  A blind user of a website that screen reader software cannot read has standing to sue under the ADA if the website has a sufficient nexus to a physical place of public accommodation.  (See Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1069.)  In this case, Plaintiff alleges that screen reading software cannot read Defendant’s website, and that Plaintiff’s inability to use a screen reader to read Defendant’s website deterred Plaintiff from visiting Defendant’s tasting room.  (Complaint, ¶¶ 4, 7.)  Specifically, Plaintiff alleges: “The access barriers on the Website have caused a denial of Plaintiff’s full and equal access multiple times in the past, and deterred Plaintiff on a regular basis from accessing Defendant’s Website.  Similarly, at all relevant times the access barriers on the Website deterred Plaintiff from visiting Defendant’s California tasting room locations.”  (Id., ¶ 7.)  This is sufficient for pleading purposes.

Defendant argues that Plaintiff cannot seek relief that would require Defendant to alter its website.  Defendant argues that Civil Code section 52(c)(3) does not permit a mandatory injunction.  Section 52 prohibits a mandatory injunction requiring “construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever” of a facility or building, not websites.  (See Civ. Code, § 52(g).)  In fact, injunctive relief is available in these types of cases.  (See, e.g., Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634.)

Defendant also seeks to strike allegations relating to Plaintiff having standing as a “tester.”  Plaintiff is entitled to allege facts to demonstrate standing.  Moreover, the trier of fact will not consider the allegations in ruling on the case.  Therefore, the motion is denied.

Based upon the foregoing, the Court orders as follows:

1.         Defendant’s demurrer is overruled and motion to strike is denied.

2.         The Court orders Defendant to file an answer within thirty (30) days.

3.         This case shall proceed as a bench trial.  The Court sets the following dates:

Final Status Conference:            January 31, 2025, at 9:00 a.m.

Trial:                                          February 11, 2025, at 9:30 a.m.

4.         The parties shall comply with all pretrial procedures for Department #39. 

5.         Defendant’s counsel shall provide notice and file proof of such with the Court.