Martin v. Thi E-Commerce, LLC

95 Cal.App.5th 521

313 Cal.Rptr.3d 488

Dominick MARTIN et al., Plaintiffs and Appellants,

v.THI E-COMMERCE, LLC, Defendant and Respondent.

G061234

Court of Appeal, Fourth District, Division 3, California.

Filed September 13, 2023

Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, Victoria C. Knowles, and Richard H. Hikida, Newport Beach, for Plaintiffs and Appellants.

Blank Rome and Harrison Brown, Los Angeles, for Defendant and Respondent.

OPINION

SANCHEZ, ACTING P. J.

This appeal arises from a judgment of dismissal following an order sustaining defendant Thi E-Commerce, LLC's (Thi E-Commerce) demurrer. Plaintiffs Dominick Martin and Rusty Rendon, who allege they are blind, filed suit under the Unruh Civil Rights Act ( Civ. Code, § 51 et seq. ; Unruh Act) for disability discrimination, contending that one of Thi E-Commerce's Web sites discriminates against the blind by being incompatible with screen reading software. Plaintiffs contend the court erred by concluding that a Web site is not a place of public accommodation under the Americans with Disabilities Act ( 42 U.S.C. § 12101 et seq. ; ADA) (which is incorporated into the Unruh Act). Although this is an issue that has split the federal courts (as well as this panel), we conclude the ADA unambiguously applies only to physical places. Moreover, even if we were to find ambiguity and decide the issue on the basis of legislative history and public policy, we would still conclude that the ADA does not apply to Web sites.

Plaintiffs alternatively contend they stated a cause of action against Thi E-Commerce on a theory of intentional discrimination. We conclude the allegations of the complaint do not state a claim under that theory either and affirm the judgment.

ALLEGATIONS AND PROCEDURAL HISTORY

The first amended complaint alleged as follows: Plaintiffs are blind and require screen reading software to read Web site content. Thi E-Commerce maintained its Web site < https://realtruck.com/> (as of Sept. 7, 2023), archived at: < https://perma.cc/96GY-PXA5> in a manner that "contained numerous access barriers preventing Plaintiff, and other blind and visually impaired individuals, from gaining equal access to the [Web site]." "The [Web site] provides access to Defendant's array of products and services, including descriptions of its products, amenities and services, online shop, and many other benefits related to its products and services." The access barriers included missing alternative text, which is text that describes images such as a nonblind person sees when hovering a mouse cursor over an image, missing form labels, and redundant links that result in additional navigation and repetition for screen reader users.

Plaintiffs are "testers," which means they are individuals with disabilities who visit places of public accommodation to determine their compliance with the ADA. The complaint stated a single cause of action for violation of the Unruh Act by "denying visually-impaired customers the services and products provided by the [Web site]." Plaintiffs alleged, "Defendant ... violated the Unruh Civil Rights Act because the conduct alleged herein likewise constitutes a violation of various provisions of the ADA, 42 U.S.C. § 12101 et seq. Section 51(f) of the California Civil Code provides that a violation of the right of any individual under the ADA shall also constitute a violation of the Unruh Civil Rights Act."

As part of the same cause of action, plaintiffs further alleged, "At all relevant times, Defendant's actions constituted intentional discrimination against Plaintiffs on the basis of a disability in violation of the Unruh Civil Rights Act because Defendant constructed a [Web site] that was inaccessible to Plaintiffs, knowingly maintained the [Web site] in this inaccessible form, and failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause. In particular, on or about December 14, 2019, Defendant received a letter sent via overnight delivery (FedEx) from Plaintiff's counsel on December 13, 2019, informing Defendant regarding the inaccessibility of its [Web site], which interfered with Plaintiffs' personal attempts to use the [Web site]. Such letter also informed Defendant that Plaintiffs' counsel represented ‘blind’ individuals, and warned Defendant that Plaintiffs intended to ‘file suit’ ‘shortly.’ Such letter concluded by inviting Defendant via its counsel to promptly contact Plaintiffs' counsel if Defendant wished to either discuss the matter or desired ‘additional information about these claims.’ ... Defendant failed to respond to such letter at all."

Plaintiffs attached their attorney's demand letter to the complaint. The letter, which is less than half of a page long, simply stated, "In short, your [Web site] ... is not fully accessible to visually-impaired individuals, which subjects you to liability under both California and federal law." The letter did not provide any detail describing the nature of the accessibility barriers.

The trial court sustained a demurrer by Thi E-Commerce without leave to amend.¹ The court noted that a plaintiff may proceed with an Unruh Act cause of action on either of two theories: a violation of the ADA or intentional discrimination. With regard to the ADA, the court applied the "majority view" that Web sites are not public accommodations under the ADA unless barriers present in the Web site impede a disabled person's access to benefits at a defendant's physical facility. No such physical facility was alleged. As to intentional discrimination, the court noted that plaintiff's factual premise—Thi E-Commerce's failure to respond to plaintiffs' demand letter—was insufficient to show intent.

Following a judgment in favor of Thi E-Commerce, plaintiffs timely appealed.

DISCUSSION

On appeal, plaintiffs contend the court erred in sustaining a demurrer to their Unruh Act cause of action. The Unruh Act provides: "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 [citation]; 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 ).) Plaintiffs contend the court erred both by concluding a Web site is not subject to the ADA and that plaintiffs failed to allege intentional discrimination. We review each contention in turn.

A Stand-alone Web site is Not a Place of Public Accommodation

Title III of the ADA provides, "No 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).) "To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability." ( Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.) The present appeal presents the threshold issue of whether a stand-alone Web site (i.e., a Web site without any significant connection to a physical location open to the public) is a "place of public accommodation."

The ADA defines the phrase "place of public accommodation" in terms of a list of 12 categories, each of which has specific examples. In particular, title 42 of the United States Code section 12181(7)(A)-(L) ( section 12181(7) ), lists the following: "(7) Public accommodation [¶] The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—[¶] (A) an inn, hotel, motel, or other place of lodging ... ; [¶] (B) a restaurant, bar, or other establishment serving food or drink; [¶] (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; [¶] (D) an auditorium, convention center, lecture hall, or other place of public gathering; [¶] (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; [¶] (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; [¶] (G) a terminal, depot, or other station used for specified public transportation; [¶] (H) a museum, library, gallery, or other place of public display or collection; [¶] (I) a park, zoo, amusement park, or other place of recreation; [¶] (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; [¶] (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and [¶] (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation."

The relevant federal regulation defines a place of public accommodation by largely parroting title 42 of the United States Code section 12181, except the regulation adds that a place of public accommodation is a "facility." ( 28 C.F.R. § 36.104 (2022).) It defines the term facility as "all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads,...