Judge Upinder S. Kalra, Case Number: 23STCV23948, Date: 2024-01-11 Tentative Ruling

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CASE NAME: Anita Ogletree v. A-Sha Foods USA Co. Inc. d/b/a Ashadrynoodle.com

1. Demurrer to the Complaint for failure to state sufficient facts to constitute a cause of action.

On October 2, 2023, Plaintiff Anita Ogletree (Plaintiff) filed a Complaint against Defendant A-Sha Foods USA Co. Inc. d/b/a Ashandrynoodle.com with one cause of action for Violations of the Unruh Civil Rights Act.

According to the Complaint, Plaintiff is a blind individual who utilizes screen reading software to read website content and access the internet. Plaintiff alleges that she attempted to access Defendant’s website in connection with her desire to access Defendant’s brick and mortar location but encountered access barriers. Plaintiff is also a “tester” who visits places of public accommodation to determine compliance with Title III of the ADA. Plaintiff alleges that Defendant failed and refused to remove access barriers on their website.

On November 9, 2023, Defendant filed the instant demurrer. On December 28, 2023, Plaintiff filed an opposition. Defendant’s reply was due on or before January 4, 2024. As of January 8, 2024, there is no reply on file with the court.

The court grants Plaintiff’s request for judicial notice as to Exhibits 1, 2, and 3. (Evid. Code § 452(c), (d); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). According to the Declaration of Edward Lu, the parties met and conferred telephonically on October 25, 2023 but were unable to resolve the issues. (Lu Decl. ¶¶ 2-3.) Accordingly, the meet and confer requirement is met.

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.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 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.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)

Defendant contends that Plaintiff failed to allege sufficient facts showing intentional discrimination or violation of the ADA. Specifically, Defendant contends that the Complaint concludes Defendant violated the ADA and does not allege specific intent to discriminate against Plaintiff because of her protected trait. Plaintiff argues the alleged inability to access Defendant’s website violates the ADA and that Defendant intentionally discriminated against Plaintiff by knowing of Plaintiff’s accessibility problems and failing to address them.

“California’s Unruh Civil Rights Act provides: ‘All persons within the jurisdiction of this state are free and equal and 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 violation of any individual right under the Federal Americans with Disabilities Act (“ADA”) is also a violation of California’s Unruh Act. (Civ. Code § 51, subd. (f).) Under the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).) Under the ADA, a place of public accommodation expressly includes establishments that serve food or drink. (42 U.S.C. § 12181(7)(B).)

A plaintiff can recover under the Unruh Act on two alternate theories: (1) a violation of the ADA; or (2) denial of access to a business establishment based on intentional discrimination. (See Martinez v. Cot’n Wash Inc. (2022) 81 Cal.App.5th 1026, 1035 (Cot’n Wash).)

Under the nexus theory recently adopted by California courts of appeal, “websites are covered by the ADA only if there is a nexus between the websites and access to a physical place of public accommodation. [Citation.]” (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 640-41.) “[D]iscrimination occurring ‘offsite’ violates the ADA if it prevents disabled individuals from enjoying services a defendant offers from a physical place of public accommodation.” (Id.; see also Martinez v. San Diego County Credit Union, supra, 50 Cal.App.5th at p. 1067 [agreeing with the nexus theory standard and stating it “requires a court to focus on the connection between the website and the goods and services offered by the defendant”].)

Upon reviewing the Complaint, Plaintiff has sufficiently alleged an ADA violation. First, Plaintiff alleges she is a blind individual who requires screen reading software to read website content and access the internet, she attempted to access Defendant’s website in connection with a desire to visit their store and could not access the website effectively. (Compl. ¶¶ 5, 9.) Second, Plaintiff alleges that Defendant’s website provides access to Defendant’s array of services, description of products, amenities and services, and other benefits connected to its brick and mortar location. (Compl. ¶¶ 11, 12.) Third, Plaintiff alleges that Defendant failed and refused to remove access barriers on their website. (Compl. ¶¶ 16, 21.) Finally, Plaintiff alleges that the website’s inaccessibility denied visually impaired patrons, like Plaintiff, full and equal access to Defendant’s facilities and services that are available to the non-disabled public, which violates the Unruh Civil Rights Act. (Compl. ¶ 20.)

Upon reviewing the Complaint, Plaintiff has not sufficiently alleged intentional discrimination. A claimant may not rely on the effects of a facially neutral policy on a particular group to infer a discriminatory intent. (See Cot’n Wash, supra, at p. 1036.) Failure to take affirmative action to correct an alleged barrier to access after being notified of it is insufficient to demonstrate intentional discrimination in violation of the Unruh Act. (Id. at pp. 1036-1038.) Plaintiff’s reliance on Hankins v. El Torito Restaurants Inc. (1998) 63 Cal.App.4th 510, 516 is misplaced because it involved a company policy that denied all patrons access to a restroom on the restaurant’s first floor. (Id. at pp. 517-520.) Here, Plaintiff’s claim is based not on a company policy, but on the structure of Defendant’s website, which is a facially neutral action.[1] (See Cot’n Wash, supra, at p. 1038.)

However, because the court may not split a cause of action, Plaintiff has sufficiently plead facts supporting her cause of action for Violation of the Unruh Civil Rights Act. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

[1] Plaintiff argues that websites with incompatible screen readers should not be viewed as facially neutral and argues that the court should reject Cot’n Wash in favor of various federal authorities. However, there is no other binding California authority provided by Plaintiff supporting this position.