Judge Thomas D. Long, Case Number: 23STCV13630, Date: 2024-03-18 Tentative Ruling

On June 13, 2023, Plaintiff Rusty Rendon filed this action against Defendant Fiesta Express, Inc. The Court entered default against Defendant on January 22, 2024. On January 26, 2024, Plaintiff filed this request for entry of default judgment.

Plaintiff seeks a judgment of $20,264.00, consisting of $16,000.00 in damages, $3,750.00 in attorney fees, and $514.00 in costs.

Counsel provides a declaration supporting the request for attorney fees. (Knowles Decl. ¶¶ 12-13.) The amount of costs is also reasonable, and according to the memorandum of costs, they are allowable.

“‘Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.’ [Citation].” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288.) “[T]he plaintiff must affirmatively establish his entitlement to the specific judgment requested.” (Id. at p. 287.)

Under the Unruh Civil Rights Act, business establishments must provide people with disabilities with equal access to their accommodations, advantages, facilities, privileges, and services. (Civ. Code, § 51.) Whoever violates the is liable for each and every offense for up to three times actual damages, but no less than $4,000.00. (Civ. Code, § 52, subd. (a).)

The $16,000.00 in damages are based on Plaintiff’s multiple attempts to access Defendant’s website. Plaintiff’s declaration states he attempted to access Defendant’s website on November 3, 2022, and thereafter attempted to access the website three more times. (Rendon Decl. ¶ 2.) But Plaintiff has not shown that his multiple visits to the same website constitute separate offenses by Defendant under the Unruh Civil Rights Act. (See Civ. Code, § 52, subd. (a) [“liable for each and every offense”].)

Additionally, Plaintiff has not shown that he can state a claim for violation of the Unruh Civil Rights Act and has not shown that he is entitled to any damages.

“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.)

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).) “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.)

The Complaint alleges that Defendant “operates multiple ‘brick and mortar’ locations” in California, and those locations are public accommodations and business establishments. (Complaint ¶¶ 6, 9.) Plaintiff alleges that “[t]he Website is a service, privilege, advantage, and accommodation of Defendant’s services and physical retail locations,” and it is “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 patronize its physical retail Blu Jam Cafe locations.” (Complaint ¶ 13.) 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.) Plaintiff accessed the website, not any physical location. (Rendon Decl. ¶ 2.) The accessibility barriers prevented him from “effectively navigat[ing] the website or gain[ing] the information offered, and he was “deterred from accessing the website and patronizing Defendant’s website on more than one occasion.” (Rendon Decl. ¶¶ 7-8.) There is no nexus between Plaintiff’s allegations about use of the website and any 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 or prove that Defendant is a “place of public accommodation” 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, supra, 81 Cal.App.5th at p. 1036.)

The Complaint does allege that Defendant “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.) Taking these allegations as true and admitted through Defendant’s default (Code Civ. Proc, § 431.20, subd. (a)), 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, 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.)

Accordingly, it appears that Plaintiff cannot state a claim or recover damages under the Unruh Act. “If the complaint does not state a cause of action or the allegations do not support a claim for relief, a default judgment is erroneous and ‘cannot stand.’” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1015, quoting Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.)

An Order to Show Cause Re: Dismissal with Prejudice for Failure to State a Claim and Failure to Obtain Default Judgment is scheduled for June 21, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.

Hon. Thomas D. Long

Judge of the Superior Court