By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has affirmed a judgment in favor of Omni Hotels in an action brought by a blind woman who claimed a violation of the Unruh Civil Rights Act because she could not book a room via the hotel chain’s website using a screen reader, with the justices holding that there’s no breach of the act based on lack of access where the plaintiff had no actual intent to utilize the services.
San Bernardino Superior Court Judge David Cohn viewed such an intent as a requisite of an Unruh Act lawsuit based on the denial of a public accommodation due to a disability. That view was reflected in his instructions to the jury.
The plaintiff, Cheryl Thurston—a frequent litigant in Unruh Act suits—protested that nothing in the legislation conditions liability on the plaintiff being an actual customer or client, and maintained that no scienter requirement exists.
Acting Presiding Justice Art W. McKinister authored the appeals court’s opinion, filed Thursday. He pointed to the California Supreme Court’s 2019 decision in White v. Square, Inc. where it was said that the defendant in an Unruh Act lawsuit may raise the defense that the plaintiff “did not actually possess a bona fide intent to sign up for or use its services.”
“Thus, for Thurston to prevail on her Unruh Act claim against Omni, she had to show a ‘bona fide intent’ to book a room.”
He noted that while she claimed to have been unable to accomplish that on Omni’s website using special software, she made no effort to secure a reservation through any of several third-party websites or by telephone.
The jurist declared:
“While we agree that an Unruh Act claimant need not be a client or customer of the covered public accommodation, and that he or she need not prove intentional discrimination upon establishing an ADA violation, we do not agree that an Unruh Act claimant’s intent or motivation for visiting the covered public accommodation is irrelevant to a determination of the merits of his or her claim. Thurston’s argument conflates standing requirements with the merits of her claim.”
Instruction Was Correct
“Here, Thurston had standing to assert an Unruh Act claim against Omni. What was unclear was whether her factual allegations could overcome Omni’s assertion that she did ‘not actually possess a bona fide intent...to use its services.’…Following White, the trial court instructed the jurors to make this determination, and they concluded she could not. Consistent with our Supreme Court’s guidance on this issue, such conclusion was proper.”
Explaining how the software Thurston uses works, McKinister said:
“Screen reader software vocalizes invisible code (alternative text) embedded beneath graphics on websites and describes the content of the web page.…The software communicates information on a website to the user, basically making a computer talk.”
The case is Thurston v. Omni Hotels Management Corporation, 2021 S.O.S. 5322.
Gregory F. Hurley and Michael J. Chilleen of Sheppard, Mullin, Richter & Hampton represented Omni.
Scott J. Ferrell and Richard H. Hikida of Pacific Trial Lawyers in Newport Beach represented Thurston, as that firm has on numerous other occasions. Thurston is one of several handicapped persons in the law firm’s stable of plaintiffs.
The Fourth District’s Div. Two on Jan. 8 held in Thurston v. Ricardo of Beverly Hills, Inc., an unpublished opinion, that the San Bernardino Superior Court lacked personal jurisdiction over Ricardo of Beverly Hills, Inc., a Washington corporation, in action by Thurston over its website, basing the decision on insufficient online sales to Californians. By contrast, on Aug. 26 of last year in a partially published opinion, that division found that the San Bernardino Superior Court did have jurisdiction over Thurston’s action against Fairfield Collectibles of Georgia, LLC based on that company’s level of online sales to customers here.
On Sept. 3, 2019, Div. Eight of this district, in opinion by Justice Maria E. Stratton, in Thurston v. Midvale Corp. affirmed a summary judgment granted by Los Angeles Superior Court Judge (now Assistant Presiding Judge) Samantha Jessner in favor of Thurston requiring that a restaurant, The Whisper Lounge, redesign its website to render it accessible to those using screen readers.
Jessner on Oct. 1, 2018, granted attorney fees for Pacific Trial Lawyers in the amount of $56,645.
Thurston has also been a litigant in the U.S. District Court for the Central District of California.
Pacific Trial Lawyers in 2017 filed a putative class action in that court in Thurston v. FCA US LLC against the maker of Fiat automobiles alleging, using its stock language, that she “is a blind individual who requires screen reading software to read website content and access the internet.” The complaint avers:
“Despite several attempts to use and navigate fiatusa.com to locate specific dealerships operated by Defendant and located in California, Plaintiff has been denied the full use and enjoyment of the facilities and services of fiatusa.com.”
Judge John F. Walter on Jan. 26, 2016, ordered dismissal of the action based on the plaintioff’s failure to state an “injury-in-fact,” saying:
“Most importantly, Plaintiff does not allege that she actually intended to visit a dealership. In the absence of any allegations that the website failed to provide her any information that would have enabled Plaintiff to achieve her alleged goal of locating a specific dealership, Plaintiff has failed to establish that she has suffered any legally compensable injury-in-fact.”
Walter remarked in a footnote:
“As Defendant points out, the Complaint is short on detailed facts regarding Plaintiff’s personal experience. Instead, Plaintiff’s Complaint is generic and nearly identical to those that she has filed in many other cases.”
Removal of Actions
Presence in federal court has generally not been of Thurston’s choosing.
In the action she brought against Omni, and in other suits she filed in state court, the defendant removed the matter to federal court based on the Unruh Act being tethered to the federal Americans With Disabilities Act (“ADA”), relying on a theory that a federal question thus being raised. However, the ADA does not provide for damages; the Unruh Act does, and Thurston routinely seeks damages.
Senior District Court Judge Terry Hatter, in his May 19, 2019 order scooting Thurston’s action against Omni back to the San Bernadino Superior Court, said that “there is no federal question raised when money damages are sought for a state law claim when an element of that claim is satisfied by an ADA violation because the ADA does not provide for money damages,” hence “there is no substantial, disputed question of federal law.”
There have been at least six other cases brought by Pacific Trial Lawyers on behalf of Thurston in state court that were removed by the defendant to the District Court for the Central District of California, then volleyed back to the state court—the Orange Superior Court or the San Bernardino Superior Court—during the period from 2017-19. The respective actions were against Aspen Skiing Company, Spectrum Wine Auctions, LLC, ClearPath Lending, Inc., Helzberg’s Diamond Shops, and Chino Commercial Bank, N.A.
The Karlin Law Firm, LLP, which defends against what it terms on its website to be ADA-related claims that often “are bogus and frivolous,” provides “an example of a typical letter…sent by Pacific Trial Lawyers—Scott J. Ferrell.” It says:
“This law firm has been retained by a blind consumer to pursue a claim against you under the California Unruh Act.
“In short, your website (website address) is not fully accessible to visually-impaired individuals. Indeed, the California Supreme Court recently confirmed that anti-discrimination laws apply to commercial websites. We urge you to consult your own counsel about your rights and obligations in this emerging area of law.
“We plan to file suit in the near future. If you wish to discuss this matter, your counsel should promptly contact me.
“Scott J. Ferrel, Esq.”
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