Opinion
B308475
02-23-2022
ABELARDO MARTINEZ, JR., Plaintiff and Appellant, v. DIAMOND HILL VINEYARDS, LLC, Defendant and Respondent.
Pacific Trial Attorneys, Scott J. Ferrell and Richard H. Hikida, for Plaintiff and Appellant. No appearance by Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV42041, Richard L. Fruin, Jr., Judge. Reversed and remanded.
Pacific Trial Attorneys, Scott J. Ferrell and Richard H. Hikida, for Plaintiff and Appellant.
No appearance by Defendant and Respondent.
BAKER, J. 1
Plaintiff Abelardo Martinez, Jr. (plaintiff) sued Diamond Hill Vineyards, LLC (defendant) for violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) based on its operation of a commercial website that is allegedly inaccessible to people who are blind. Plaintiff's single cause of action rests on two theories: (1) intentional discrimination; and (2) violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), which the Unruh Civil Rights Act (the Unruh Act) incorporates. (§ 51, subd. (f).) We consider whether the trial court erred in dismissing the action on the ground that plaintiff did not allege the nexus between defendant's website and its "brick and mortar" facilities that the law requires.
Undesignated statutory references that follow are to the Civil Code.
I. BACKGROUND
A. Complaint
Plaintiff is blind and requires screen reading software to use the internet. Defendant is a Rhode Island limited liability corporation with its principal place of business in Cumberland, Rhode Island. Defendant's website, favorlabel.com, "provides access to [its] array of products and services, including descriptions of its products, amenities and services, [and] online shopping services . . . ." According to plaintiff, defendant's website includes various features "that prevent free and full use by [p]laintiff and other blind persons using screen reading 2 software." These barriers have "deterred [plaintiff] from purchasing [d]efendant's products as [he] would have been able to do by using the Website."
Plaintiff describes himself as a "tester[ ]." He states he has "filed multiple lawsuits against various operators of commercial websites" under the Unruh Act.
As alleged in the complaint, "[t]he Website's barriers are pervasive and include, but are not limited to, the following: (1) Document language missing, which presents a problem because the language of the document is not identified. Identifying the language of the page allows screen readers to read the content in the appropriate language. It also facilitates automatic translation of content; (2) Spacer image missing alternative text which presents a problem because a layout spacer image does not have an alt attribute. Spacer images are used to maintain layout; and (3) Empty or missing form labels which presents a problem because, if a form control does not have a properly associated text label, the function or purpose of that form control may not be presented to screen reader users. Form labels provide visible descriptions and larger clickable targets for form controls."
Plaintiff asserts a single cause of action for violation of the Unruh Act based on two alternative theories. First, he alleges "[d]efendant's actions constitute intentional discrimination against [p]laintiff on the basis of a disability in violation of the [Unruh Act] because[d]efendant has constructed a Website that is inaccessible to [p]laintiff, knowingly maintains the Website in this inaccessible form, and has failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause." Alternatively, plaintiff alleges "[d]efendant is also violating the [Unruh Act] because the conduct alleged herein likewise constitutes a violation of various provisions of the ADA . . . . 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 Act]." 3
Plaintiff's complaint seeks injunctive relief, statutory damages, and attorney fees and costs.
B. Order to Show Cause
Defendant did not respond to the complaint, and the clerk of the superior court entered its default. Plaintiff then asked the court to enter a default judgment totaling $20,355.75; this amount was comprised of $16,000 in damages, $3,750 in attorney fees, and $605.75 in costs.
The trial court did not enter the proposed judgment. Instead, it issued an order to show cause why the action should not be dismissed and directed plaintiff to address several issues, including whether the complaint states a cause of action for violation of the Unruh Act. The trial court suggested plaintiff's allegations do not support his ADA theory because there is no indication the website "prevented or impeded . . . equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities."
In his response to the order to show cause, plaintiff argued an ADA violation may be established in the absence of a nexus between defendant's website and its physical facilities and, in any case, the complaint should be construed to allege such a nexus. Plaintiff submitted evidence-not mentioned in the complaint-that in addition to selling wine through its website, defendant operates a tasting room and gift shop at its vineyards and offers its facilities for party rentals. He offered to amend the complaint to allege a nexus between defendant's website and physical facilities if the trial court deemed it necessary.
Plaintiff further argued the Unruh Act is broader than the ADA and applies to commercial websites without a nexus to 4 physical facilities even if the ADA does not. Plaintiff emphasized the distinction between his intentional discrimination theory and his ADA theory, suggesting the order to show cause "appear[ed] to conflate" the analyses.
C. Dismissal
In a five-page order, the trial court concluded plaintiff could not state a cause of action for violation of the Unruh Act and dismissed the action with prejudice. Citing Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston) and Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048 (Martinez), the trial court found that, "[u]nder California law[, ] websites are covered by the ADA only if there is a nexus between the website and a physical place (a public accommodation) at which the disabled person may inspect the goods or services offered on the website." Applying this standard, the trial court found plaintiff failed to allege a nexus between defendant's website and a physical location that was "available" or "convenient" to him. Because plaintiff did not allege such a nexus and had been given "ample opportunity" to do so, the trial court dismissed the action. The trial court did not discuss plaintiff's intentional discrimination theory.
II. DISCUSSION
We are aware of no California court that has held commercial websites qualify as public accommodations covered by the ADA only if they have a nexus to a physical location at which goods or services are offered. As we shall explain, Thurston and Martinez held that such a nexus is sufficient-but refrained from holding it is necessary-to establish that a 5 defendant operates a place of public accommodation covered by the ADA. Plaintiff urges us to join the minority of federal circuits holding that all commercial websites-regardless of their relationship to a physical facility-are subject to the ADA. We need not decide that issue, however, because the alleged ADA violation is only one of the two theories on which plaintiff's Unruh Act claim is based. Plaintiff's allegations suffice to state a cause of action based on the other theory, intentional discrimination, and we will reverse for that reason.
A. The Unruh Act and the Standard of Review
The only issue before this court is whether the trial court properly dismissed the action on the grounds that plaintiff cannot state a cause of action under the Unruh Act. Although this issue is closely related to whether plaintiff is entitled to default judgment, our discussion need not go beyond the issue presented. We independently assess the legal sufficiency of the complaint and assume the truth of all facts alleged in the complaint except for facts contradicted by judicially noticeable 6 materials. (See Organizacion Comunidad de Aviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790-791.)
"Because the default confesses those properly pleaded facts, a plaintiff has no responsibility to provide the court with sufficient evidence to prove them-they are treated as true for purposes of obtaining a default judgment. [Citation.]" (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281.) A defaulting defendant admits only well pleaded facts, however, so "'[i]t is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action . . . .'" (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1015.)
Plaintiff filed a motion asking this court to judicially notice briefs, minute orders, settlement agreements, and a complaint filed in other state and federal cases. We deny the motion. (Cal. Rules of Court, rule 8.252(a)(2)(B); see also Wm. R. Clarke Corp. v. Safeco Ins. Co. (1997) 15 Cal.4th 882, 888, fn. 6; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
The Unruh Act provides, in pertinent part, that "[a]ll 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." (§ 51, subd. (b).) A plaintiff may establish a violation of the Unruh Act under two alternative theories: (1) denial of access to a business establishment based on intentional discrimination, or (2) a violation of the ADA. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664-665 (Munson); Martinez, supra, 50 Cal.App.5th at 1059.) Although, as we shall discuss, a violation of the Unruh Act predicated on a violation of the ADA may require special allegations regarding the relationship between a commercial website and commercial facilities, the chief difference between these theories for our purposes is that no proof of intentional discrimination is required to recover under an ADA violation theory. (Munson, supra, at 664, 670.) 7
B. The ADA's Application to Commercial Websites Lacking a Nexus to Physical Facilities Is Not Settled in California
The ADA prohibits discrimination "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 . . . ." (42 U.S.C. § 12182(a), emphasis added.) As the trial court observed, California and federal courts have grappled with the question of whether, and under what circumstances, commercial websites qualify as places of public accommodation under the ADA.
The Court of Appeal in Martinez surveyed relevant federal cases and identified two general approaches. (Martinez, supra, 50 Cal.App.5th at 1062.) The minority view-that commercial websites generally qualify as places of public accommodation without any nexus to a brick and mortar location-leans heavily on the fact that the statutory definition of "public accommodation" includes providers of services which do not require customers to visit a physical location (see 42 U.S.C. § 12181(7)(F)) and the belief that "'[i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not.'" (Martinez, supra, 50 Cal.App.5th at 1062, quoting Carparts Distribution Center, Inc. v. Automotive Wholesaler's Assn. of New England, Inc. (1st Cir. 1994) 37 F.3d 12, 19.) The majority view, by contrast, emphasizes that "essentially all" of the places listed in the ADA's definition of "public accommodation" describe a physical location and holds that "websites are not 'public accommodations' under the ADA, but a denial of equal access to a website can support an 8 ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities." (Martinez, supra, at 1063.)
The trial court apparently read Martinez and Thurston to pick a side in the diverging case law, but that is not our reading of these cases. There was no need to decide, in either Martinez or Thurston, whether a website qualifies as a public accommodation subject to the ADA in the absence of a nexus to physical facilities because the nexus standard was satisfied. (Martinez, supra, 50 Cal.App.5th at 1071 ["Because we have concluded [the plaintiff's] allegations were sufficient to satisfy the nexus standard, we do not reach the legal issue whether the ADA applies to websites even without a nexus to a physical place"]; Thurston, supra, 39 Cal.App.5th at 644 [finding a nexus existed and therefore declining to "consider . . . the wholly hypothetical question whether . . . [the ADA] governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products"].) We too need not take sides because the trial court's order of dismissal is flawed for another reason: the existence of another valid, unchallenged theory of recovery.
C. The Complaint States a Cause of Action Based on
Intentional Discrimination
As a general matter, alleging that a facially neutral policy disproportionately impacts a protected class is not alone sufficient to state a cause of action for intentional discrimination under the Unruh Act. In Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824 (Koebke), our Supreme Court 9 reiterated its construction of sections 51 and 52 to proscribe only "'willful, affirmative misconduct.'" (Id. at 853, quoting Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172.) Significantly for our purposes, however, "evidence of disparate impact [may] be admitted in [Unruh Act] cases because 'such evidence may be probative of intentional discrimination in some cases . . . .' [Citation.]" (Koebke, supra, at 854.)
Plaintiff's complaint alleges defendant intentionally discriminated against him based on his disability by "construct[ing] a Website that is inaccessible to [him], knowingly maintain[ing] the Website in this inaccessible form, and . . . fail[ing] to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause." Even if the inference of intentional discrimination to which these allegations give rise is not strong (though defendant did not appear to defend against the complaint), the allegations suffice at the pleading stage to state a cause of action for intentional discrimination in violation of the Unruh Act. (Compare, e.g., Cullen v. Netflix, Inc. (N.D.Cal. 2012) 880 F.Supp.2d 1017, 1024-1025 [dismissing Unruh Act claim because the operative complaint itself included "allegations demonstrating [the defendant's] efforts to improve access for hearing-impaired customers that offset an inference of intentional discrimination"]; Anthony v. Buena Vista Home Entertainment Inc. (C.D. Cal. Sept. 28, 2016, No. 2:15-cv-09593-SVW-JPR) 2016 WL 6836950 [dismissing Unruh Act claim because the plaintiff "only allege[d] that some [of the defendant's] music and song lyrics are not captioned"], emphasis added.) 10
DISPOSITION
The order dismissing the action with prejudice is reversed and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. Costs on appeal, if any, are awarded to plaintiff.
We concur: RUBIN, P. J. KIM, J. 11