Martinez v. San Diego Cnty. Credit Union

50 Cal.App.5th 1048

264 Cal.Rptr.3d 600

Abelardo MARTINEZ, Plaintiff and Appellant,

v.SAN DIEGO COUNTY CREDIT UNION, Defendant and Respondent.

D075360

C/w D076055

Court of Appeal, Fourth District, Division 1, California.

Filed June 19, 2020

Pacific Trial Attorneys, Scott J. Ferrell and Richard Hikida, Newport Beach, for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Gregory F. Hurley and Bradley J. Leimkuhler, Costa Mesa, for Defendant and Respondent.

HALLER, J.

Abelardo Martinez, who is blind, brought an action against San Diego County Credit Union (Credit Union) claiming its website is incompatible with software permitting him to read website content. He alleged this defect denied him equal access to, and full enjoyment of, the Credit Union's website and its physical locations. Martinez asserted a single cause of action under the Unruh Civil Rights Act based on two alternate theories: (1) Credit Union's website violates the American Disabilities Act (ADA); and (2) Credit Union's actions constitute intentional discrimination prohibited by the Unruh Civil Rights Act. (See Civ. Code, § 51 et seq. ; 42 U.S.C., § 12101 et seq. )¹

On the day scheduled for jury selection, the court dismissed the action on its own motion based on its understanding Martinez was intending to pursue only the ADA theory, and the court's finding Martinez had not sufficiently alleged Credit Union's website constitutes a "public accommodation" within the meaning of the ADA. (§ 12182(a).) Although the court characterized its ruling as a nonsuit, the parties agree it was a conclusion based solely on Martinez's pleadings.

Martinez appeals. We determine the court erred in dismissing the action at the pleadings stage based on the ADA's public-accommodation element. Although the courts have not yet articulated a single clear standard on this issue, most of the federal circuits and one California Court of Appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity's website if there is a sufficient nexus between the claimed barriers and the plaintiff's ability to use or enjoy the goods and services offered at the defendant's physical facilities. Under this standard, we conclude Martinez has alleged a sufficient nexus to state an ADA violation. We thus do not reach the broader issue whether a website constitutes a public accommodation governed by the ADA even without a nexus to the defendant's physical location.

We reject Credit Union's alternate argument that the dismissal was proper because the United States Congress has not enacted specific website accessibility standards. Even without these standards, the courts have the authority to interpret applicable ADA provisions and apply them to website accessibility issues. We also find unavailing Credit Union's challenges to potential remedies for alleged defects on its website. These challenges are based on facts outside the appellate record and are premature at the pleading stage.

FACTUAL AND PROCEDURAL BACKGROUND²

Complaint

Martinez is permanently blind and requires screen reading software to vocalize visual information on the computer screen, allowing him to "read" website content and access the Internet.

In July 2017, Martinez filed a complaint against Credit Union. According to his allegations, Credit Union maintains its website in such a way that it contains "numerous access barriers" precluding him from using his screen reading software to access the information on the website. Specifically, Martinez alleged Credit Union's website is incompatible with this software because the website contains: (1) missing alternative text, which is code embedded beneath a graphical image that allows screen readers to vocalize a description of the graphics and permits users to determine the website content; (2) empty links, creating confusion for keyboard and screen reader users; (3) redundant links resulting in additional navigation and unnecessary repetition; and (4) missing form labels, which creates a problem because the function or purpose of the form control may not be presented to screen reader users.

Martinez alleged the screen reading software is "the only method by which a blind person may independently access the internet," and described the online industry standards organization's publication of the Web Content Accessibility Guidelines version 2.0 (Accessibility Guidelines), which sets forth rules to ensure website accessibility for visually impaired individuals. These rules include adding "invisible alternative text to graphics" to ensure "all functions can be performed using a keyboard" and "that image maps are accessible." He alleged that without these basic components, "a website will be inaccessible to a blind or visually impaired person using a screen reader."

With respect to Credit Union, Martinez alleged it operates multiple credit union locations, and that its website is "integrated" with the physical locations. He claimed Credit Union's website provides "access to the array of [Credit Union's] services, including a location locator, descriptions of its products and services, and many other benefits related to these facilities and services." He alleged that he has made multiple attempts to use and navigate the website, but because of the website's formatting, he has been unable to do so. He claimed this inability to use the website has deterred him from visiting Credit Union's physical locations, using the website, and obtaining the benefits of Credit Union's goods and services. Specifically, he alleged he is unable to "effectively browse for [Credit Union's] locations, products and services online," and claimed that if the website were accessible, he "could independently investigate services and products, and find the locations to visit via Defendant's website as sighted individuals can and do."

Martinez asserted a single cause of action for violation of the Unruh Civil Rights Act. ( Civ. Code, § 51.) He alleged two theories for recovery. First, he alleged Credit Union's conduct in maintaining its website in a form inaccessible to visually impaired individuals, and failing to take corrective action after notice, constituted prohibited "intentional discrimination" under the Unruh Civil Rights Act. Second, he claimed Credit Union's website violates the ADA, an independent basis for liability under the Unruh Civil Rights Act.

Martinez sought: (1) $4,000 per violation; (2) injunctive relief requiring Credit Union to take steps necessary to make its website accessible to visually impaired individuals (but limiting his request to the expenditure of no more than $50,000 to correct the deficiencies); and (3) attorney fees and costs not to exceed $74,999.

Credit Union answered, denying the allegations, but did not challenge the pleadings or move for summary judgment. Trial was scheduled for Tuesday, November 13, 2018.

November 8, 2018 Hearing

Several days before the trial date, on Thursday, November 8, the court held a hearing on the parties' motions in limine, proposed jury instructions, and verdict forms. The court and counsel first discussed each of Martinez's eight motions and Credit Union's three motions. Of relevance here, during the discussion, Credit Union asked the court to exclude any reference to the Accessibility Guidelines, and after lengthy arguments, the court said it would reserve ruling on the issue, but commented it was "up to the jury to decide" if the Credit Union's website violated statutory standards, and therefore it may permit Martinez to present evidence of the Accessibility Guidelines "for limited purposes [and] with a limiting instruction." On Credit Union's motion to exclude any evidence of barriers that were not specifically alleged, the court also reserved ruling on the motion, but noted that Credit Union had not brought a demurrer, and to the extent the complaint was not sufficiently detailed to provide adequate notice, Credit Union had the full opportunity to conduct discovery.

After reiterating November 13 as the trial start date and informing counsel of its department trial rules, the court and counsel discussed the proposed jury instructions and verdict forms. Toward the end of this discussion, counsel told the court there is a split among the federal circuits as to whether a website is subject to the ADA, and whether a nexus between the defendant's website and its physical facilities is required to trigger ADA protection. The court responded that the arguments on the issue of "accessing the physical" space and any required "nexus" had "piqued [its] interest," and that it was "interested in briefing on that." After counsel told the court that most of the case law has arisen in the federal courts, and no California appellate court has yet ruled on this issue, the court said, "Lucky me. So you ... need to brief this. You both need to put together a trial brief for me. I've got a pretty good feel, but you [both] know this area inside and out ... since there aren't any California appellate court cases...." The court asked counsel to email their briefs by Monday morning (the day before jury selection was scheduled to begin), and said, "I'll go through the briefs Tuesday, and then we'll start picking the jury Tuesday afternoon."

On Monday November 12, the parties emailed their trial briefs to the court. Credit Union's brief was 44 pages and addressed numerous legal issues in addition to the public accommodations issue raised by the court. Martinez's brief was 19 pages and more limited than Credit Union's brief.

November 13 Hearing and Order

The next day, the parties met in chambers for an unrecorded discussion. After the discussion, the court held a hearing on the record. At the outset of the hearing, the court said:

"We have had [a] chambers discussion. I have reviewed both sides' trial briefs, and I have given ... this matter a tremendous amount of thought over the three-day weekend. And with the benefit of the

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