Thurston v. Omni Hotels Mgmt. Corp.

69 Cal.App.5th 299

284 Cal.Rptr.3d 341

Cheryl THURSTON, Plaintiff and Appellant,

v.OMNI HOTELS MANAGEMENT CORPORATION, Defendant and Respondent.

E074098

Court of Appeal, Fourth District, Division 2, California.

Filed September 23, 2021

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

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

OPINION

McKINSTER, Acting P. J. Cheryl Thurston (Thurston) is blind and uses screen reader software¹ (a screen reader) to access the Internet and read website content. Defendant and respondent Omni Hotels Management Corporation (Omni) operates hotels and resorts. In November 2016, Thurston initiated this action against Omni, alleging that its website is not fully accessible by the blind and the visually impaired, in violation of the Unruh Civil Rights Act (the Unruh Act; Civ. Code, § 51 et seq. ).² By way of a special verdict, the jury rejected Thurston's claim and found that she never intended to make a hotel reservation or ascertain Omni's prices and accommodations for the purpose of making a hotel reservation.

On appeal, Thurston contends the trial court erred as a matter of law (1) by instructing the jury that her claim required a finding that she intended to make a hotel reservation, and (2) by including the word "purpose" in the special verdict form, which caused the jury to make a "factual finding as to [her] motivation for using or attempting to use [Omni's] Website." We affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. The Complaint.

Thurston alleges Omni discriminated against visually impaired individuals, specifically herself, by denying them full and equal access to Omni's website (< http://www.omnihotels.com> [as of Sept. 23, 2021]), as a result of access barriers. She claims these access barriers deterred her "from visiting any of [Omni's] physical locations" and "determining whether to stay at such locations." She identifies generic categories of issues—lack of alternative text, empty links, or redundant links—without specifying which particular issue she actually encountered. Thurston charges Omni with intentional discrimination in violation of the Unruh Act ( § 51, subds. (b), (f) ), as well as a violation of Title III of the American with Disabilities Act of 1990 (ADA; 42 U.S.C.S. § 12101 et seq. ).

B. Trial Evidence.

Using a screen reader, Thurston visited Omni's website on multiple occasions between May 2015 and June 2019, in search of a hotel room in Palm Springs or San Diego. While visiting the website, she encountered issues involving the reservation function: one blocked her from moving around in the calendar and another (an image) blocked her from making a reservation. Despite these accessibility issues, Thurston never tried to book a reservation by using a third party website (i.e., Orbitz, Expedia, Hotels.com, etc.)³ or by calling Omni directly (her screen reader read Omni's phone number). Moreover, she never looked at any other hotel websites, and she never actually made any hotel reservations during these occasions when she searched for a room.

Expert testimony explained that website accessibility for a screen reader depends on (1) the browser (i.e., Google Chrome, Internet Explorer, Firefox, etc.), (2) the screen reader and whether it is up-to-date, (3) the website's coding, and (4) user proficiency with a screen reader. If browsers and screen readers are not updated, they will produce problems navigating websites, which are coded perfectly for accessibility to visually impaired individuals.⁴ No examination of Thurston's computer was conducted because her husband had destroyed the hard drive in 2018. Similarly, no examination of her browsing or search history was performed because her computer automatically deleted such history on a weekly basis. According to expert testimony, the issues Thurston experienced with Omni's website could be traced to her outdated browser (Internet Explorer), outdated screen reader software, and a lack of proficiency in using a screen reader, rather than the website's coding.

C. Jury Instructions and Special Verdict.

The parties disagreed on instructing the jury regarding an Unruh Act claim.⁵ Thurston proposed alternative special instructions: Special jury instruction No. 1 was based on a violation of the ADA,⁶ while special jury instruction No. 2 was based on intentional discrimination.⁷ In contrast, Omni proposed one special jury instruction, which required a finding that Thurston had an "intent" to use Omni's "services in the manner in which those services are typically offered to the public."⁸ While Omni argued that Thurston must prove she accessed the website with the "intent of utilize[ing] its services and subscrib[ing] to or pay[ing] for [Omni's] services," Thurston maintained that neither the ADA nor the Unruh Act impose any requirement that the disabled individual, who is suing a defendant owner or operator of a public accommodation, "must be a customer, client, or ‘bona fide patron’ of th[at] public accommodation." The trial court adopted a hybrid of the instruction, and the jury was told, inter alia, that to establish a violation of the Unruh Act, the evidence had to show Thurston "attempted to use Omni's website for the purpose of making a hotel reservation (or to ascertain Omni's prices and accommodations for the purpose of considering whether to make a hotel reservation)."⁹

In closing, plaintiff's counsel argued that Thurston had shown the intent element of the Unruh Act based on her testimony that what she "was hoping to accomplish ... was to look at making a reservation at one of [Omni's] locations." In response, defense counsel argued that Thurston's testimony showed that she "never intended to go to Omni's website to book a hotel" because she never attempted to book a room via any travel website, by e-mailing Omni, or calling the hotel directly, and she never actually booked a room at another hotel. Defense counsel explained Thurston visited Omni's website as "part of [a] shakedown strategy to get money."

Following deliberations, the jury found that Omni operated a website to facilitate customer reservations at its hotels, and that Thurston was blind. However, it failed to find that she "attempt[ed] to use Omni's website for the purpose of making a hotel reservation (or to ascertain Omni's prices and accommodations for the purpose of considering whether to make a hotel reservation)." The jury therefore rejected Thurston's claim under the Unruh Act, and judgment was entered in favor of Omni.

II. DISCUSSION

Thurston contends the trial court erred as a matter of law in instructing the jury that her claim requires a finding that she "intended" to make a hotel reservation. She further asserts error in the inclusion of the word "purpose" in question No. 3 on the special verdict form on the grounds it caused the jury to make a "factual finding as to [her] motivation for using or attempting to use [Omni's] website." As we explain, we find no error.

In California, "[t]wo overlapping laws, the Unruh Civil Rights Act ( § 51 ) and the Disabled Persons Act ( §§ 54 - 55.3 ), are the principal sources of state disability access protection." ( Jankey v. Lee (2012) 55 Cal.4th 1038, 1044, 150 Cal.Rptr.3d 191, 290 P.3d 187.) The Unruh Act, codified at section 51,¹⁰ was "enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public." ( Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367, 378, 271 Cal.Rptr.3d 320 ; see Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167, 59 Cal.Rptr.3d 142, 158 P.3d 718 ( Angelucci ) [The Unruh Act was enacted to "create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments."].) The Unruh Act's remedies include actual damages (as much as treble damages), a minimum statutory award of $4,000 for each violation, and injunctive relief. ( § 52, subds. (a), (c)(3).)¹¹

The Unruh Act " ‘stands as a bulwark protecting each person's inherent right to "full and equal" access to "all business establishments." [Citation.]’ [Citation.] In enforcing the Act, courts must consider its broad remedial purpose and overarching goal of deterring discriminatory practices by businesses. [Citations.] [The California Supreme Court has] consistently held that ‘the Act must be construed liberally in order to carry out its purpose.’ [Citations.] [¶] In light of its broad preventive and remedial purposes, courts have recognized that ‘[s]tanding under [the Act] is broad.’ [Citation.] At the same time, we have acknowledged that ‘ "a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct." ’ [Citation.] ‘In essence, an individual plaintiff has standing under the Act if he or she has been the victim of the defendant's discriminatory act. ’ " ( White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025, 250 Cal.Rptr.3d 770, 446 P.3d 276 ( White ), italics added; accord, Angelucci, supra , 41 Cal.4th at p. 175, 59 Cal.Rptr.3d 142, 158 P.3d 718 ["[P]laintiff must be able to allege injury—that is, some ‘invasion of the plaintiff's legally protected interests.’ "].)

"Put another way, the [Unruh Act] is ‘confined to discriminations against recipients of the "business establishment's ... goods, services or facilities." ’ [Citation.] [Unruh Act] claims are thus ‘appropriate where the plaintiff was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship. ’ " ( Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149, 278 Cal.Rptr.3d 587, italics added.) For online businesses, the plaintiff must allege that "he or she visited the business's website, encountered discriminatory terms, and intende...