Judge Thomas Falls, Case 21PSCV0441 2022-08-08 Tentative Ruling

Plaintiff Rebecca Castillo (“Plaintiff”) is a visually impaired and legally blind person who requires screen-reading software to read website content using a computer. Plaintiff alleges that Defendant AYR, Inc. (“Defendant”) has failed to design, construct, maintain and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually impaired people.

On October 25, 2021, the court denied without prejudice Plaintiff’s initial application for default judgment.

On March 25, 2022, Plaintiff filed the instant Application for Default Judgment.

Plaintiff seeks judgment in the total sum of $13,274.00. The break-down is as follows:

3. Plaintiff failed to file any documentary evidence that “due to the unlabeled buttons, lack of Alt-text, the structure of the headings and Website, cursor traps, and other barriers, Plaintiff was unable to fully and independently access the Website.” (Complaint ¶36.) Specifically, as to this latter deficiency, the court indicated that Plaintiff represents, inter alia, that the home page of AYR does not comply with the Unruh Civil Rights Act, but she “has not provided the court with any screen shots of the website reflecting such violations.

Upon review of the new application for default judgment, the court finds all deficiencies have been cured.

Second, Plaintiff filed a ‘Summary of the Case in Support of Request for Court Judgment Pursuant to CCP section 585(d).’

Third, and of import, although Plaintiff has not submitted screenshots of AYR’s website as requested by the court, Plaintiff submits the declaration of Rosemary Musachio (“Musachio”), an accessibility and assistive technology consultant and expert. Musachio found several accessibility barriers and deficiencies on AYR, Inc's Website that prevent visually impaired and legally blind persons from full and equal enjoyment of the goods and services offered by AYR, Inc. While Musachio’s declaration satisfies Plaintiff’s evidentiary burden, the court finds that Musachio’s declaration shows that AYR’s website presents but one general violation: AYR, Inc. has constructed and maintained its website that is inaccessible to visually-impaired individuals. (Musachio Decl., ¶15.)

However, Plaintiff requests $12,000 in damages; this would presumably be payment for three different violations of the Unruh Act. (See Civ. Code § 52(a).) There is only one cause of action in the complaint and there is only one website that appears to be at issue. and there is no evidence of economic injury to Plaintiff. Without evidence of “actual damage” or multiple injuries, the Court should not award more than $4,000.[3]

Based on the foregoing, the court GRANTS Plaintiff’s Application for Default Judgment as to Defendant AYR, Inc. in the reduced amount of $5,274.00 ($4,000 statutory damages plus costs plus attorney fees).

[1] Plaintiff’s single cause of action is for violation of the Unruh Civil Rights Act, codified at Civil Code sections 51 and 52. Under the Unruh Act, “[a]ll persons within the jurisdiction of this state are free and equal . . . and no matter what their . . . disability [or other protected characteristic] . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51; see also CACI No. 3066.) A violation of the Americans with Disabilities Act (ADA) also qualifies as a violation of Unruh. (Civ. Code, § 51, subd. (f).) Moreover, “[w]hoever denies, aids, or incites a denial, or makes any discrimination or distinction” contrary to the Unruh Act is liable for damages. (Civ. Code, § 52, subd. (a).) By its terms, the Unruh Act applies only to “business establishments.” (Civ. Code, § 51.) Recent California cases have clarified that this concept is broader than the concept of “places of public accommodation” as used in the ADA. Specifically, in California, a website, that is, a business whose offerings are made entirely by way of an internet connection and one’s own computer or device, may qualify as a business establishment under Unruh. (See White v. Square, Inc. (2019) 7 Cal.5th 1019, 1027.)

[2] Pursuant to California Civil Code § 52, Plaintiff is entitled to reasonable attorneys’ fees, litigation expenses, and costs of suit.

[3] “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.” (Civ. Code § 52(a).)