Judge Thomas Falls, Case 22PSCV01026 2023-04-05 Tentative Ruling

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RE: REBECCA CASTILLO vs BRUSTERS ICE CREAM, INC., A PENNSYLVANIA CORPORATION (22PSCV01026)

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(2) DEFENDANT BRUSTER’S ICE CREAM, INC.’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT

(2) DEFENDANT BRUSTER’S ICE CREAM, INC.’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT is MOOT.

This is an Unruh Civil Rights Act (“UCRA”) action.[1] Plaintiff alleges that as a result of the lack of alt-text on the home page of Defendant’s website, broken buttons or links, lack of headings, and inaccessible videos, Plaintiff could not sign up for Defendant’s Sweet Rewards Program, place an online order for ice cream, or plan a visit to the nearest location. (Compl. ¶ 37.)

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

Defendant demurs to Plaintiff’s first and only cause of action for violations of the Unruh Civil Rights Act (“UCRA”) based on five (5) grounds:

(3) Plaintiff has not alleged that a nexus exists between the webpage allegedly visited by Plaintiff and denial of access to a brick-and-mortar location in California that Defendant owns (to the extent UCRA is based on an Americans with Disabilities Act (“ADA”) violation);[5]

(4) Plaintiff has not pleaded facts showing that Defendant committed “willful and affirmative” misconduct against Plaintiff because of her alleged disability; and

UCRA provides that “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.” (Civ. Code, § 51, subd. (b).) “A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA (Civ. Code, § 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, 264 Cal.Rptr.3d 600 (SDCCU).)[7] If the UCRA cause of action is based on the first theory (ADA violation), then a showing of intentional discrimination is not required. (Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1038-1039 (Cot’n Wash).) To the contrary, if the action fails to state a valid ADA violation, then UCRA requires a claimant to prove intentional discrimination. (Id. at p. 1036.)

Defendant contends that the California Court of Appeal adopted Ninth Circuit authority holding that a website does not constitute a “place of public accommodation” under the ADA as a matter of law. (Demurrer p. 20, citing Cot’n Wash, supra, 81 Cal.App.5th at p. 1036.

Indeed, the appellate court in Cot’n Wash expressly concluded that a website is not a ‘place of public accommodation’ for the purposes of the ADA. (Id. at p. 1032.) In doing so, the court engaged in thoughtful and thorough examination of conflicting views in federal court, relevant California precedent, statutory interpretation, and legislative history. (Id. at pp. 1039-1052.) Of import, Cot’n Wash applied to “purely digital retailers” or a “standalone website,” meaning a business that does not offer any products and services at any physical location, or in any manner other than through its website. (Id. at 1046-1047) (emphasis added).

Here, however, Defendant is not a purely digital retailer because Plaintiff alleges that Defendant has “brick-and-mortar locations.” (Complaint ¶2.) Accordingly, the next inquiry is about the nexus between Defendant’s website and its physical location.

The requirement that a plaintiff plead the nexus between a website and the denial of access to a physical location also applies to UCRA claims in California courts. (Thurston v. Midvale Corp. (2019) 39 Cal. App. 5th 634, 642-43.) California Courts of Appeal have adopted the Ninth Circuit’s approach, holding that discrimination occurring “offsite” (i.e., on a website) violates the ADA only if it prevents a disabled individual from “enjoying services a defendant offers from a place of public accommodation,” i.e., a physical location. (Id. at 640-641; see also Cot’n Wash, supra, 81 Cal.App.5th at 1041-1042) (emphasis added).

By way of illustration, Martinez v. San Diego County Credit Union (2020) 50 Cal. App. 5th 1048 provides a helpful summary of Robles[8] and Thurston, both cases that applied the nexus test to uphold a visually impaired plaintiff’s ADA claims against a restaurant. (Martinez, at p. 1067.) The court stated the following:

The Robles court found the plaintiff alleged sufficient facts to show the requisite nexus in her action against Domino's Pizza based on allegations that Domino's website (and related app”) permitted the customer to find the location of the nearest restaurant and is the primary means of ordering pizzas “to be picked up at or delivered from Domino's restaurants.” [Citation.] The Thurston court found the nexus test was satisfied by facts showing the restaurant's website provided consumers with the opportunity to review the menu and make a reservation, which the court found expedited the customer's ability to obtain the benefits of the restaurant's physical facility. [Citation.] Thurston explained these website features “speed[ ] up” the customer's “experience at the physical location” and thus facilitate the use and enjoyment of the services offered at the restaurant. [Citation.] The court further stated the nexus test was met even though the website was not necessarily an ‘extension’ of the restaurant's physical services [citation] because, as in Robles, ‘the website connects customers to the services of the restaurant’ [Citation, italics original]) (emphasis added and underline added).

Here, the pertinent allegation that forms the basis of Plaintiff’s claim is that as a result of the various online barriers, “Plaintiff was unable to fully and independently access the Website when visiting for the dual purpose of confirming compliance with the UCRA and ADA and to browse products, sign up for Sweet Rewards, place an online order, and visit the nearest brick-and-mortar location.” (Complaint ¶37) (emphasis added). However, as noted by Defendant, that generalized allegation provides no explanation as to why the generalized categories of barriers denied her access to a particular brick-and-mortar location owned, leased, or leased to or operated by Defendant. (Demurrer p. 21.) Put differently, whereas in Robles and Thurston there were specific/particular barriers alleged (i.e., find location and make a reservation, respectively) for the specific/particular and primary purpose (i.e., go to the physical store for pickup of pizza (to eat) and make a reservation to eat at the restaurant, respectively), here, Plaintiff does not allege a particular/specific barrier nor a specific purpose. For example, Plaintiff alleges that as a result of multiple alleged barriers (lack of alt-text on the home page, broken buttons or links, lack of headings, and inaccessible videos), she was unable to sign up for Defendant’s Sweet Rewards Program. (Complaint ¶ 37.) But how does the inability to sign up for a rewards program affect the inability to visit a brick and mortar store? Overall, the complaint does not identify a comparable integration (i.e., particular/specific integration) between the website and Defendant’s physical stores which the aforementioned authority requires.

Therefore, as Plaintiff has not alleged that a nexus exists between the webpage allegedly visited by Plaintiff and denial of access to a brick-and-mortar location in California that Defendant owns, operates, or leases as required by Cal. Civ. Code § 51(f), Plaintiff’s ADA claim fails.

The court now turns to the next theory of intentional discrimination to determine whether the UCRA count survives.

The appellate court in Cot’n Wash stated that “[a]s to intentional discrimination, the California Supreme Court has held that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Act. [Citation.] It follows that we cannot infer intentional discrimination from [plaintiff]’s alleged facts that he made [defendant] aware of the discriminatory effect of [defendant]’s facially neutral website, and that [defendant] did not ameliorate these effects.” (Id. at p. 1032) (emphasis added and underline added).

In Cot’n Wash, the plaintiff was allegedly permanently blind and used screen readers to read website content. (Id. at 1034.) With respect to intentional discrimination, the following was alleged. Counsel for plaintiff sent defendant a letter which asserted that defendant’s website was not fully accessible to visually impaired individuals and that advised that plaintiff would file suit. (Ibid.) A week later, defense counsel emailed counsel for plaintiff, asserting that the website conformed with accessibility guidelines and inviting counsel for plaintiff to identify an accessibility issue. (Ibid.) Four days later, counsel for plaintiff offered to share an audit report detailing the accessibility issues upon request. (Ibid.) Counsel also sent a pre-filing settlement demand. (Id. at 1034-35.) The following day, defense counsel requested the report, which plaintiff sent the same day. (Ibid.) Five days later, counsel for plaintiff notified defense counsel of plaintiff’s intent to file a complaint because no response to the settlement demand had been received. (Ibid.) The following day, defense counsel email counsel for plaintiff, wherein defendant questioned the meaning of the audit report, reasserted that defendant’s website complied with applicable guidelines, and stated that defendant hired a consultant to ensure ongoing compliance. (Ibid.) The plaintiff filed suit the same day. (Ibid.) In Cot’n Wash, the plaintiff argued that “a defendant’s failure to correct a known accessibility problem resulting from an individual's disability can support an inference that the defendant is intentionally discriminating against that individual based on his disability.” (Id. at 1037.) The Court of Appeal disagreed.

Despite the plaintiff’s allegations regarding how he made the defendant aware of the accessibility barriers on the subject website and defendant’s refusal to address the barriers, the Court of Appeal found that the operative complaint did not allege the “willful, affirmative conduct” necessary to support a non-ADA Unruh claim, as required by the California Supreme Court in Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824. The Court of Appeal held, “[W]e do not recognize a failure to address known discriminatory effects of a policy as alone sufficient to establish intentional discrimination under the Unruh Act, and the FAC could not have stated a cognizable Unruh Act claim on this basis.” (Id. at 1038.)

Here, like the plaintiff in Cot’n Wash, Plaintiff solely relies Defendant maintaining the Website in an allegedly inaccessible format and by failing 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. (Compl. ¶ 48.) However, based on the holding in Cot’n Wash, that failure to address known accessibility defects does not establish intentional discrimination for an Unruh claim.

Therefore, as Plaintiff has failed to plead intentional discrimination, its other theory of an UCRA violation also fails.

To the extent that Plaintiff urges the court to disregard Cot’n Wash because “it is poorly reasoned,” that is inaccurate because the appellate court engaged in pages upon pages of analysis of the parties’ arguments, legal authority, and even action taken by the Department of Justice. (Opp. p. 14.)

To the extent that Plaintiff argues the court should adhere to Ruiz v. Musclewood Inv. Props., LLC (2018) 28 Cal. App. 5th 15, that is also inaccurate. (Opp. p. 14.) For one, this court is bound by the holding in Cot’n because “[d]ecisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) (emphasis added). What is more, the court in Cot’n Wash squarely rejected Ruiz’s bearing on such an action. (Cot’n Wash, supra, 81 Cal.App.5th at p. 1038 [“ In any case, applying Ruiz’s DPA-related dictum to an Unruh Act claim would be inconsistent with Koebke. Ruiz does not conclude otherwise. Indeed, Ruiz does not even mention Koebke or the Unruh Act. We thus disagree that Ruiz allows [the plaintiff] to prove intentional discrimination under the Unruh Act based on [the defendant’s] failure to change a facially neutral policy or action—here, the structure of the [] website—in response to Martinez's complaints. Because Koebke is a Supreme Court decision contrary to Ruiz’s dictum related to intent, it is not surprising that [plaintiff] has not cited (nor are we aware of) any California case applying the intent-related dictum in Ruiz to an Unruh Act claim.”]) (emphasis added).

Lastly, to the extent that Plaintiff contends this Court is “bound to follow” Hankins v. El Torito Restaurants, Inc., (1998) 63 Cal. App. 4th 510, that again is inaccurate because the case did not involve a website but a physical place of accommodation.

All in all, Cot’n Wash is binding upon this court and Plaintiff has not offered contrary authority.

PLAINTIFF’S COMPLAINT is SUSTAINED with leave to amend. The motion to strike is

[1] Plaintiff premises her UCRA cause of action based upon alleged violations of both UCRA and the Americans with Disabilities Act (“ADA”). (See Complaint ¶49: [“Defendant is also violating the UCRA, Civil Code § 51 et seq. because the conduct alleged herein violates various provisions of the [ADA]”.].) Therefore, this an ADA-Unruh complaint.

[2] As noted by Defendant, the opposition is 20 pages, which exceeds the 15-page requirement set forth by the California Rules of Court, Rule 3.1113(d). Though for any further filings the court will strike excess pages, the court will not do so for the instant demurrer.

[3] See footnote 6.

[4] The court agrees that the complaint lacks particularity because Plaintiff does not identify any particular unlabeled or mislabeled button or link, the specific URL on which she encountered it, the date she contends she encountered it (Plaintiff only mentions the month of June and the year), or the specific service that she claims she was denied access to because of the unlabeled or mislabeled button or link. This will be further discussed in the general analysis section under subheading II entitled ‘The Nexus Theory.’

[5] On this point about a location that Defendant owns, it is true that the ADA only applies to a defendant that “owns, leases, or operates” a place of public accommodation. However, Defendant avers that it does not own, lease, operate a physical store because “[t] only brick-and mortar ‘Bruster’s Ice Cream’ locations in California are operated by independent franchisees.” (Demurrer p. 22.) In support of its proposition, Defendant cites to Neff v. Am. Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995). Here, however, the court finds that Defendant’s argument exceeds the scope of the pleadings such that it is asking the court to consider extrinsic material, which is impermissible on a demurrer. And to the extent that Defendant relies on Neff which held that a franchisor’s supervisory authority, without more, was insufficient to support a holding that franchisor “operates” franchisee’s store within the meaning of the ADA, that case dealt with a summary judgment motion, not a demurrer, the former of which permits consideration of matter(s) beyond complaint. Furthermore, Plaintiff sets forth authority to argue that a franchisor may be responsible for ADA violations at franchisee locations, which Defendant’s Reply does not address. (See Opp. p. 10.) Therefore, for purposes of this demurrer, Plaintiff has adequately plead that Defendant operates, owns, or leases a store for purposes of the ADA.

[6] While an Unruh Act claimant's intent or motivation for visiting the covered public accommodation is not irrelevant to a determination of the merits of his or her claim, as noted by Plaintiff, the court’s consideration of this issue is premature on a demurrer because at this pleading stage though Plaintiff has pled that she visited the website (and others) to assess it for compliance with disability access laws, she also alleges that she intended to use the website’s services. (Opp. pp. 20, 21, see Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 307 [“Beyond the pleading stage, if a plaintiff wants to prevail on an Unruh Act 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 . . . [the defendant] may argue in a motion for summary judgment or at trial that White did not actually possess a bona fide intent to sign up for or use its services. Our standing analysis is limited to the pleadings, in which White unequivocally alleges his intention to use Square's services.”]) (emphasis added and italics original). Therefore, as this also ties into the issue of standing, the court will not further analyze these issues on this demurrer.

[7] Plaintiff’s complaint and opposition contend that the complaint alleges facts sufficient to establish an UCRA claim under both theories.

[8] Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898.