Martinez v. Cot'N Wash, Inc.

• Decision Date: 01 August 2022
• Docket Number: B314476
• Citation: 81 Cal.App.5th 1026,297 Cal.Rptr.3d 712
• Parties: Alejandro MARTINEZ, Plaintiff and Appellant, v. COT'N WASH, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 1026

297 Cal.Rptr.3d 712

Alejandro MARTINEZ, Plaintiff and Appellant,

v.COT'N WASH, INC., Defendant and Respondent.

B314476

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

Filed August 1, 2022

Pacific Trial Attorneys, Scott J. Ferrell, Victoria C. Knowles and Richard H. Hikida, Newport Beach, for Plaintiff and Appellant Alejandro Martinez.

Lahti Helfgott, Brian E. Lahti and Jonathan A. Helfgott for Defendant and Respondent Cot'n Wash, Inc.

ROTHSCHILD, P. J.

Alejandro Martinez, as successor in interest to his brother Abelardo Martinez, Jr., seeks reversal of a judgment of dismissal following the successful demurrer of Cot'n Wash, Inc. (CW) to a complaint against CW alleging a single violation of the Unruh Civil Rights Act ( Civ. Code, § 51 et seq. ) (the Unruh Act). The operative complaint alleged CW violated the Unruh Act by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software. On appeal, Martinez argues that the trial court erred in concluding (1) the alleged inaccessibility of CW's website did not violate the Americans with Disabilities Act ( 42 U.S.C. § 12111 et seq. ) (the ADA), specifically Title III of the ADA ( 42 U.S.C. §§ 12181 – 12189 ) (Title III) and (2) the complaint did not allege sufficient facts to establish CW's discriminatory intent, which the Unruh Act requires in the absence of an ADA violation.

We hold that the trial court was correct on both points. As to intentional discrimination, the California Supreme Court has held that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Act. (See Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854, 31 Cal.Rptr.3d 565, 115 P.3d 1212 ( Koebke ).) It follows that we cannot infer intentional discrimination from Martinez's alleged facts that he made CW aware of the discriminatory effect of CW's facially neutral website, and that CW did not ameliorate these effects.

As to the ADA violation theory, Martinez has not alleged, as he must in order for Title III of the ADA to apply, that CW's website constitutes a "place of public accommodation." ( 42 U.S.C. § 12182(a).) Under current law, we cannot read this phrase as including retail websites without any connection to a physical space. The statutory language does not include a category that encompasses such websites, and Congress has chosen not to amend the ADA to clarify whether and under what circumstances a website can constitute a "place of public accommodation"—despite Congress recognizing over 20 years ago the lack of clarity on this point and the resulting federal circuit split that persists today. We cannot rely, as Martinez encourages us to, on the policy goals of the ADA as a basis for ignoring the plain language of the statute and doing what Congress has for decades declined to do. Nor do we find persuasive that the United States Department of Justice (DOJ), the regulatory agency charged with implementing the ADA, has unofficially endorsed a view that all retail websites constitute "place[s] of public accommodation" for purposes of the ADA. Regardless of what the DOJ has said in amicus briefs, it has opted not to issue any regulations or formal guidance to this effect, even after repeated requests from Congress that the DOJ do so. This weighs against, not in favor, of Martinez's proposed interpretation.

We do not disagree that facilitating access to retail websites would serve the goals of the ADA. Nonetheless, compatibility with the goals of legislation is not the only consideration in interpreting it. We cannot ignore the canons of statutory interpretation to achieve the goal Martinez identifies. Nor may we act to expand the scope of a law when Congress has chosen not to do so.

Accordingly, we affirm the judgment of dismissal.

FACTS AND PROCEEDINGS BELOW

In the operative first amended complaint (FAC), Abelardo Martinez, Jr.¹ alleges a single cause of action against CW for violation of the Unruh Act, which provides that "[a]ll persons within the jurisdiction of this state ... 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." ( Civ. Code, § 51, subd. (b).)²

A. Allegations of the FAC

The FAC alleges the following facts: CW "owns, operates and provides to the public" a website that "provides access to [CW's] array of products and services, including descriptions of its products, ... [and an] online shop." CW is not alleged to offer any products and services at any physical location, or in any manner other than through its website.

Martinez is "permanently blind and uses screen readers in order to access the internet and read website content." There are "well-established, industry standard guidelines for ensuring websites are accessible to blind and visually-impaired people" using screen reading software. "[The] guidelines recommend several basic components for making websites accessible" including "adding invisible alternative text to graphics, ensuring that all functions can be performed using a keyboard and not just a mouse; ensuring that image maps are accessible, and adding headings so that blind people can easily navigate websites. Without these very basic components, a website will be inaccessible to a blind or visually-impaired person using a screen reader."

The FAC alleged that "at all relevant times, it was [CW's] policy and practice to deny blind users, including [Martinez], equal enjoyment of and access to the website" by "fail[ing] and refus[ing] to remove access barriers on the website" "that prevent free and full use by [Martinez] and other blind persons using screen reading software."

The FAC further alleges CW "failed to take adequate action to correct these barriers even after being notified of the discrimination that such barriers cause," and lays out the manner in which Martinez so notified CW. Specifically, on August 13, 2020, Martinez's counsel sent CW a letter via overnight mail. The letter provided: "In short, your website (http://www.dropps.com/) 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." (Fn. omitted.) The letter did not identify any specific features of the website that were not accessible to Martinez or the method by which CW could make it compliant.

On August 20, 2020 (a week later), CW's counsel responded with an email indicating that CW's website "conformed with ‘Level 2’ of version 2.1 of the Web Content Accessibility Guidelines ... and invited [Martinez] to identify ‘a particular issue’ to which [Martinez's] letter had referenced."

On August 24, 2020, Martinez's counsel sent CW's counsel "an email that, inter alia, offered to provide, upon reasonable request, a courtesy copy of [Martinez's] audit report documenting the communication barriers existing on the website, and a pre-filing settlement demand." CW's counsel requested the report on August 25, 2020, which Martinez's counsel sent later that same day. Martinez had performed the audit "of four specific webpages on the website" using "the well-known, free, automated web accessibility evaluation tool known as WAVE," "one of 162 web accessibility evaluation tools" identified on a public webpage.

On Sunday, August 30, 2020, Martinez's counsel sent CW's counsel an email "expressing [Martinez's] intention to file a complaint against [CW] during that week in light of the fact that [Martinez's] counsel had received no substantive response to [Martinez's] settlement demand of August 24, 2020." The next day (August 31, 2020), CW's counsel sent Martinez an email that confirmed that CW had reviewed the audit report, but "questioned [its] ‘meaning’ and asserted that ‘it does not answer any of our questions.’ " The email also reiterated CW's view that it complied with applicable guidelines and "stated for the first time that [CW] ‘ha[d] also engaged a consultant to ensure ongoing compliance.’ " CW provided no further details about the consultant.

Martinez filed suit that same day.

B. Relevant Procedural History

In June 2021, the court sustained CW's demurrer to the FAC, without leave to amend, and thereafter entered a judgment of dismissal. Although the court's order does not explain its reasoning, the parties’ arguments at the hearing focused on the two issues that had been the subject of the court's written ruling sustaining CW's demurrer to the original complaint, namely: (1) Whether Martinez had alleged facts establishing intentional discrimination, and (2) Whether CW's website constituted a "place of public accommodation" for purposes of the ADA. Martinez timely appealed.

DISCUSSION

The Unruh Act provides: "All persons within the jurisdiction of this state ... 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." ( Civ. Code, § 51, subd. (b).) "A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA ( Civ. Code, § 51, subd. (f) ); or (2) denial of access to a business establishment based on intentional discrimination." ( Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059, 264 Cal.Rptr.3d 600 ( SDCCU ).)

On appeal, Martinez contends the FAC alleges facts sufficient to establish an Unruh Act claim under both theories. As to Martinez's first Unruh Act theory, we disagree that CW's response to Martinez's...