Judge William A. Crowfoot, Case Number: 22AHCV00781, Date: 2024-08-20 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00781, Date: 2024-08-20 Tentative Ruling

On October 7, 2022, plaintiff Perla Mageno (“Plaintiff”) filed this action against defendant Float Coffee Shop, Inc. (“Defendant”) alleging violations of the Unruh Civil Rights Act (“Unruh Act”), codified at Civ. Code, § 51, et seq., which incorporates Title III of the Americans with Disabilities Act of 1990, codified at 42 U.S.C. §§ 12181-12189 (“ADA”). Defendant operates a website at www.floatcoffeeshop.com (the “Website”). Plaintiff alleges she is a “visually-impaired and legally blind person who requires screen reading software to read website content using a computer” and that Defendant 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. (Compl., ¶¶ 1-2.) Plaintiff alleges that “[s]ince as early as July of 2022, and until the current date” she has made separate visits to Defendant’s website and encountered multiple access barriers. (Compl., ¶ 38.) These barriers have allegedly deterred her from accessing the Website and deterred her from visiting Defendant’s brick-and-mortar locations.” (Compl., ¶ 39.)

On March 22, 2024, Defendant filed a motion for summary judgment on the grounds that Plaintiff’s claim based on the Unruh Act fails because she has no standing and has suffered no difficulty or discomfort or embarrassment.

On April 5, 2024, Plaintiff filed a cross-motion for summary judgment or, in the alternative, summary adjudication, arguing that the undisputed facts demonstrate that Defendant violated the ADA and therefore, violated the Unruh Act.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A plaintiff moving for summary judgment must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) In ruling on a summary judgment motion, the court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

CRC Rule 3.1354 requires evidentiary objections to be numbered consecutively and follow one of two formats. Plaintiff’s evidentiary objections are not numbered at all and do not conform with either format provided by the Rules of Court. Also, in Section I, Plaintiff appears to be disputing Defendant’s material facts but not the admissibility of the underlying evidence because the quoted material is the material fact and does not correspond with the cited evidence. Therefore, the Court declines to rule on these “evidentiary objections.”

In the occasional instance where Plaintiff is in fact challenging Defendant’s evidence, Plaintiff objects to the Declaration of Craig Davis as lacking foundation. Plaintiff’s objection to Paragraphs 10 through 12 of the Declaration of Craig Davis, which purportedly describes Defendant’s website as it was on November 2, 2022, is SUSTAINED for lack of foundation. Mr. Davis is describing a webpage captured by a third-party Internet Archive and cannot authenticate the process by which the webpage was saved or maintained.

Defendant argues that Plaintiff lacks standing to bring her claims under the Unruh Act because she cannot show that she visited the Website with the requisite bona fide intent to use its services. “[A]n individual bringing an Unruh Civil Rights Act claim against an online business must allege, for purposes of standing, that he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services. These requirements are sufficient to limit standing under the Unruh Civil Rights Act to persons with a concrete and actual interest that is not merely hypothetical or conjectural.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1032.) There is no requirement for the individul to enter into a transaction with that business. (Id., pp. 1032-1033.) After a plaintiff has alleged a bona fide intent, a defendant may dispute those factual allegations at summary judgment or trial. (Id., p. 1032.) In Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, a blind plaintiff who uses screen reader software to access the Internet sued a hotel. The jury rejected the plaintiff’s Unruh Act claim and found that she never intended to make a hotel reservation or ascertain the hotel’s prices and accommodations for the purpose of making a hotel reservation. (Thurston, supra, 69 Cal.App.5th at p. 302.) The Fourth District Court of Appeal upheld the trial court’s jury instruction that the plaintiff’s claim required a finding that she intended to make a hotel reservation. (Ibid.)

Defendant argues that Plaintiff’s deposition testimony shows that she did not have a bona fide intent to patronize its establishment when she encountered its Website. Plaintiff testified in deposition that she was at home and her friend, Robin Moon, invited her to go shopping in Pasadena. (Def.’s Ex. 151, 26:9-27:12.) Plaintiff checked the Website before she went shopping and wanted to see what Defendant had on its menu. (Id., 40:1-18.) She does not remember whether her screen reading software was able to read any of the menu items, the address, or the telephone number, or whether her software was able to tell her there was more than one location. (Id., 51:6-16.) She does not remember being able read any of the menu items. (Id., 49:13-16.) Plaintiff remembers an option to order online and testified that she was interested in doing so, but does not remember if there was a button on the main page of the Website which she could use to do so. (51:20-14.) In her deposition, Plaintiff was asked whether she was interested in having any food while at Defendant’s store. Plaintiff responded in the affirmative and stated that she wanted “[f]resh bakery items” or “[a]ny type of pastries.” (Id., 31:2-32:2.) However, during Plaintiff’s visit to the physical location, she did not ask her friend to tell her about the menu. (Id., 48:7-9.) She also never tried to use third-party websites, such as Yelp, Doordash, UberEast, or GrubHub, to look at Defendant’s menu. (Id., 48:1-6.) Additionally, although Plaintiff testified that she liked baked goods, she could not name other stores or restaurants in the general area selling baked good nor could she remember any other stores selling baked goods that she would ordinarily go to. (Id., 37:23-38:3.) When asked if she has visited any other “bakery goods store” since visiting Defendant’s store on July 17, 2023, she said “No.” (Id., 54:8-10.)

Based on Plaintiff’s deposition testimony, a trier of fact could reasonably infer that Plaintiff did not have a bona fide intent to utilize Defendant’s goods and services when she accessed Defendant’s Website. Accordingly, the burden shifts to Plaintiff to raise a triable issue of material fact.

In a declaration, Plaintiff states that she first visited Defendant’s Website on July 15, 2022, “because it was her granddaughter’s first birthday and she wanted to find out about catering and events that [Defendant] may offer.” (Mageno Decl., ¶ 5.) She “also wanted to browse the menu before seeing if she could place an order for herself, and find details about the Pasadena location that [she] wanted to visit. (Ibid.) She states that when she visited the Website, she was unable to gather information on catering and events because “there were no detailed descriptions of the menu photos.” (Id., ¶ 7.)

Plaintiff’s declaration thus raises a triable issue of fact regarding her status as a bona fide customer when she visitd the website on July 15, 2022. Plaintiff also declares that she revisited the Website on July 17, 2023, before going shopping with her son and Ms. Moon, and tried to “read the menu and place an order for takeout.” (Mageno Decl., ¶ 8.) In addition, Plaintiff declares that she revisited the Website on July 25, 2023, but encountered the sam accessibility barriers. Reading Plaintiff’s declaration in a favorable light, as the Court must, a triable issue of fact exists as to whether Plaintiff visited the Website on July 15, 2022, July 17, 2023, or July 25, 2023, with a bona fide intent to use Defendant’s goods and services. Defendant’s motion for summary judgment on this ground is DENIED.

Defendant also moves for summary judgment on the grounds that its Website was accessible. Defendant introduces the Declaration of Craig Davis, in which Craig Davis, a web accessibility specialist, describes his use and analysis of the Website. Mr. Davis states that he performed a series of tests on Defendant’s Website on March 18, 2024, using the same type of assistive technologies that Plaintiff used. (Davis Decl., ¶ 6.) He concludes that the Website was accessible at all relevant times and includes a link to a 3:29 video of him performing such tests in which he tabs through all text options on the website and selects different options on the Website. He states he “was able to navigate the website’s content freely and access content related to the goods and services of the physical location of the Defendant's property.” (Davis Decl., ¶ 7.) However, there is no evidence that the Website that Davis navigated on March 18, 2024, is the same as the one that Plaintiff allegedly navigated. And because the Court sustains Plaintiff’s objections to Mr. Davis’s description of archived webpages from the Wayback Machine, Mr. Davis’s “expert conclusion” is merely conclusory and not factually supported. Therefore, Defendant’s motion for summary judgment on this basis is DENIED.

Plaintiff moves for summary judgment and argues that she can recover under the Unruh Act by showing a violation of the ADA. (Motion, pp. 11-12.) Plaintiff argues she can show: (1) that she is disabled, (2) that Defendant is a priate entity that owns, leases, or operates a place of public accommodation, an (3) she was denied public accommodations by the Defendant. (Ibid.) As evidence, Plaintiff submits the same declaration in support of her motion as she does in opposition to Defendant’s summary judgment motion, setting forth that she visited the Website on certain dates and encountered difficulties when interacting with the Website.

In opposition, Defendant makes the same argument as it did in its own motion for summary judgment and contends that Plaintiff lacks standing because she did not have a bona fide intent to utilize its goods and services. (Opp., p. 10.) As discussed above, the evidence shows a triable issue of material fact regarding Plaintiff’s intent, and therefore her standing to bring a claim under the Unruh Act.

The Court notes that Plaintiff attaches to her declaration a screenshot of her browsing history of the Website on July 17, 2023. (Mageno Decl., Ex. 2.) The screenshot shows that she visited the website at 9:42 p.m., which contradicts both her deposition testimony and her declaration that she visited the Website before going shopping; a receipt attached as Exhibit 3 is dated July 17, 2023, and shows that she purchased items from Defendant’s store at 2:39 p.m. (Mageno Decl., Ex. 3.) Although a court may not deny a motion for summary judgment “on grounds of credibility”, it may, in its discretion, deny a summary judgment “where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to such fact” or if “a material fact is an individual’s state of mind, or lack therefo, and that fact is sought to be established solely by the individual’s affirmation thereof.”

Here, Plaintiff is the sole witness to her intent and state of mind when browsing Defendant’s Website and the Court has discretion to deny summary judgment because Plaintiff’s declaration is the sole evidence that she was denied full and equal access when attempting to place an order on the Website on July 15, 2022, and July 17, 2023. (Code Civ. Proc., § 437c, subd. (e).) Therefore, Plaintiff’s motion for summary judgment is DENIED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.