Judge Thomas D. Long, Case Number: 23STCV06268, Date: 2024-10-17 Tentative Ruling

On March 21, 2023, Plaintiff Isabel Rendon filed this action against Defendant Nice Kicks Holdings, LLC.

On May 31, 2024, Defendant filed a demurrer. The demurrer generally argues that Plaintiff is not a bona fide patron who was denied access to a brick-and-mortar location, and Plaintiff cannot allege intentional conduct.

Defendant’s request for judicial notice of Plaintiff’s discovery responses in different actions (Motion, Exs. A-C) and orders and filings in other cases (Motion, Ex. E; Reply, Exs. A-B) is denied. The documents are irrelevant to this action.

Defendant’s request for judicial notice of its locations listed on its website (Exhibit D) is denied. Information on websites can be reasonably subject to dispute and are not proper subjects for judicial notice. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 888-889; see also Huitt v. Southern Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1605 fn. 10.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Plaintiff’s sole cause of action is for violation of the Unruh Civil Rights Act. Under the Act, business establishments must provide people with disabilities with equal access to their accommodations, advantages, facilities, privileges, and services. (Civ. Code, § 51.) “A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA (§ 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 (Martinez I).)

The Complaint alleges that Defendant “owns and operates Nice Kicks retail locations in California,” and those locations constitute places of public accommodation. (Complaint ¶ 9.) Plaintiff alleges that Defendant’s website “is a service, privilege, and advantage and accommodation of Defendant’s services and physical retail locations” and “a service, privilege, advantage, and accommodation that is heavily integrated with these physical retail locations, and provides advertising and marketing information helpful to influencing consumers to visit and shop at its physical retail locations.” (Complaint ¶ 13; see Complaint ¶¶ 10-11.) Because of the website’s access barriers, Plaintiff has been deterred from visiting Defendant’s physical locations. (Complaint ¶¶ 7, 24.)

However, Plaintiff’s Unruh violations are based on “Defendant’s denial of full and equal access to its Website, and therefore its products and services offered thereby.” (Complaint ¶ 4; see Complaint ¶¶ 7, 24.) “Plaintiff genuinely wants to avail herself of Defendant’s goods and services as offered on Defendant’s Website.” (Complaint ¶ 8.) The accessibility barriers prevented her from “effectively browsing for Defendant’s products, amenities and services, privileges, advantages, and accommodations that exist online unlike sighted users,” and she has been deterred “on a regular basis from accessing the Website.” (Complaint ¶¶ 23-24.)

A website cannot constitute a “place of public accommodation” in the context of Title III of the ADA. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026-1053 (Martinez II).) “Under current law, we cannot read this phrase as including retail websites without any connection to a physical space. The statutory language does not include a category that encompasses such websites . . . .” (Id. at p. 1032.)

Plaintiff alleges that Defendant operates retail locations in California, “including a location at 862 S. Main St., Los Angeles, California.” (Complaint ¶ 9.) However, Plaintiff resides in Madera County, California. (Complaint ¶ 7.) There is no nexus between Plaintiff’s allegations about her use of the website and Defendant’s physical space.

Plaintiff also alleges that “Defendant is a retail business that: (1) offers services to the public via its Website; (2) has a discrete, standalone location or identity via its Website; and (3) provides significant amounts of information to consumers on its Website, which is equivalent to or even more information than what would be typically provided by either an on-site proprietor or its employees.” (Complaint ¶ 11.) Accordingly, it appears that Plaintiff cannot allege that Defendant is a “place of public accommodation” with a nexus to any physical space in the context of Title III without contradicting the Complaint’s allegations of a “discrete, standalone location or identity via its Website.”

“[A]bsent an ADA violation, the Unruh Act requires allegations supporting ‘“willful, affirmative misconduct”’ [citation] with the specific intent ‘to accomplish discrimination on the basis of [a protected trait].’ [Citation.]” (Martinez II, supra, 81 Cal.App.5th at p. 1036.)

The Complaint does allege that Defendant “has constructed a Website that is inaccessible to Plaintiff, knowingly maintains the Website in this inaccessible form, and has failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause.” (Complaint ¶ 28.) Accepting these allegations as true, they are insufficient to establish the required intentional discrimination. A plaintiff “cannot establish [a defendant’s] intent to discriminate by showing only that its website does not allow visually impaired individuals the same access available to those who are not visually impaired (i.e., a disparate effect of a neutral structure), [so] it follows that [the defendant’s] failure to address this disparate effect likewise cannot establish [the defendant’s] intent to discriminate” (Martinez II, supra, 81 Cal.App.5th at p. 1036.) This remains true even when the defendant fails to adequately respond to complaints about the discriminatory effects. (Id. at p. 1037.)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court