By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed an order dismissing an action under the Unruh Civil Rights Act brought by a blind man against the operator of a website that was not so constructed as to permit his screen reading software to decipher the content.
Justice Lamar Baker of Div. Five wrote the unpublished opinion, which skirts the question raised by the plaintiff of whether liability can exist for failure to accommodate where a website has no nexus to a physical facility.
Plaintiff Abelardo Martinez Jr. alleged a violation of Civil Code §51(f), a part of the Unruh Act. It incorporates the federal Americans With Disabilities Act (”ADA”) and provides for monetary redress for violations.
The complaint sets forth:
“Defendant’s actions constitute intentional discrimination against Plaintiff on the basis of a disability in violation of the Unruh Civil Rights Act because Defendant constructed a Website that is inaccessible to Plaintiff, 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.”
Default Judgment Sought
The defendant, Diamond Hill Vineyards, LLC, headquartered in Rhode Island, did not answer the complaint, Martinez sought a default judgment for statutory penalties, attorney fees and costs totaling $20,355.75.
Los Angeles Superior Court Judge Richard Fruin ordered the plaintiff to show cause why the suit should not be dismissed on the ground that the complaint fails to state a cause of action. The judge on Aug. 31, 2020, ordered a dismissal, explaining in the minute order:
“The Court concludes that plaintiffs complaint does not state a cause of action. Under 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.”
He cited the Court of Appeal’s pronouncement in Thurston v. Midvale Corp., decided on Sept, 3, 2019, by this district’s Div. Eight. Justice Maria E. Stratton said in that opinion:
“Excluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.
“We hold that including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute. The trial court’s ruling that the ADA applies to appellant’s website is consistent with our holding.”
Fruin also cited the June 19, 2020 decision by the Fourth District’s Div. One in Martinez v. San Diego County Credit Union.
Nexus Not Alleged
“Plaintiff, in this case, does not (and cannot) allege a nexus between defendant’s website and a physical place of public accommodation at which plaintiff may inspect or obtain defendant’s products or services. Plaintiffs supplemental briefing submitted after the OSC hearing made no effort to allege the existence of a nexus between defendant’s website and a physical location available to plaintiff to inspect or purchase defendant’s products. The complaint, therefore, should be dismissed.”
Fruin noted that Martinez pointed out that Los Angeles Superior Court Judge Gregory Keosian overruled a demurrer to another complaint he had filed alleging an Unruh Act violation. The judge remarked that he “assumes that the complaint” in the case in Keosian’s courtroom “alleged a physical nexus between the internet site and a physical location providing the vendor’s products.”
In his opinion reversing Fruin’s order, Baker declared:
“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….Thurston and Martinez held that such a nexus is sufficient—but refrained from holding it is necessary—to establish that a 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 plaintiffs Unruh Act claim is based. Plaintiffs allegations suffice to state a cause of action based on the other theory, intentional discrimination, and we will reverse for that reason.”
Baker said that Martinez’s allegation that Diamond Hill intentionally discriminated against him by maintaining a website that is “inaccessible” to the blind is sufficient “at the pleading stage to state a cause of action for intentional discrimination in violation of the Unruh Act.”
The case is Martinez v. Diamond Hill Vineyards, B308475.
Scott J. Ferrell and Richard H. Hikida Pacific Trial Attorneys represented Martinez; there was no appearance for Diamond Hill.
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