Opinion
G061833
01-03-2024
DOMINICK MARTIN, Plaintiff and Appellant, v. SOUNDCLOUD, INC., et al., Defendants and Respondents
Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, Victoria C. Knowles and Richard H. Hikida for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Gregory F. Hurley, Michael J. Chilleen and Stacy Dominguez for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2021-01205907 Nick A. Dourbetas, Judge. Affirmed. Request for Judicial Notice. Granted.
Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, Victoria C. Knowles and Richard H. Hikida for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Gregory F. Hurley, Michael J. Chilleen and Stacy Dominguez for Defendants and Respondents.
OPINION
GOODING, J.
Dominick Martin asserted a single cause of action against SoundCloud Inc. and SoundCloud Global Limited & Co. KG (collectively, SoundCloud) for violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Martin contends a Web site owned and operated by SoundCloud is incompatible with screen reading software and therefore discriminates against individuals with visual impairments or total loss of sight. The trial court sustained a demurrer to Martin's complaint, concluding (1) Martin had not alleged facts stating a cause of action for intentional discrimination under the Unruh Civil Rights Act and (2) Martin could not state a cause of action under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (the ADA) because the SoundCloud Web site was not a place of public accommodation. Martin timely appealed.
We conclude Martin failed to allege facts sufficient to state a cause of action under the Unruh Civil Rights Act either for intentional discrimination or for violation of the ADA. As to the latter, another panel of this court recently issued an opinion in a case filed by the same plaintiff asserting the same cause of action and raising the same arguments. (Martin v. Thi E-Commerce, LLC (2023) 95 Cal.App.5th 521 (Thi E-Commerce).) We agree with the analysis and holding of Thi E-Commerce that a stand-alone Web site is not a place of public accommodation for purposes of the ADA. We therefore affirm the trial court's judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Martin filed a lawsuit against SoundCloud in June 2021, alleging a single cause of action for violation of the Unruh Civil Rights Act. The complaint alleges: (1) Martin is an individual with a complete loss of sight who requires screen reading software to read Web site content and access the Internet; (2) SoundCloud owns and operates a commercial Web site <https://www.soundcloud.com> (as of Nov. 29, 2023), archived at <https://perma.cc/266R-E5V4>; (3) SoundCloud's Web site is maintained in such a way that it prevents Martin and other individuals with visual impairments from having full and equal access to the Web site; and (4) SoundCloud's denial of full and equal access to its Web site, products, and services to individuals with visual impairments either violated the Unruh Civil Rights Act as an act of intentional discrimination under Civil Code section 51, subdivision (b), or as a violation of the ADA under Civil Code section 51, subdivision (f). The trial court sustained SoundCloud's demurrer to the complaint with leave to amend.
Martin filed a first amended complaint, which added specific allegations detailing the portions of Soundcloud's Web site that were inaccessible to individuals with visual impairments, and also allegations that Martin's counsel sent a letter to Soundcloud in February 2021, informing Soundcloud its Web site was not fully accessible to individuals with visual impairments, and that SoundCloud did not respond to the letter or take corrective action. The first amended complaint did not allege any new causes of action or theories of recovery. SoundCloud again demurred, and the trial court again sustained the demurrer with leave to amend. Martin filed notice he would stand on the existing first amended complaint and forego the opportunity to amend.
Thereafter, the parties filed a stipulation to dismiss the action with prejudice and enter judgment for SoundCloud. On June 13, 2022, the trial court entered judgment in favor of SoundCloud and against Martin. Martin filed a timely notice of appeal.
DISCUSSION
I.
STANDARD OF REVIEW
"'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.' [Citation.] '"'"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... We also consider matters which may be judicially noticed." . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.'"'" (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.)
II.
WHETHER MARTIN ALLEGED SUFFICIENT FACTS TO STATE A CAUSE OF ACTION BASED ON INTENTIONAL DISCRIMINATION
The Unruh Civil Rights Act provides, in relevant part: "All 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." (Civ. Code, § 51, subd. (b).) A plaintiff can state a claim for violation of the Unruh Civil Rights Act on two alternate theories: (1) denial of access to a business establishment based on intentional discrimination or (2) a violation of the ADA. (Thi E-Commerce, supra, 95 Cal.App.5th at p. 527.)
To state a claim under the Unruh Civil Rights Act for denial of access to a business establishment based on intentional discrimination, a plaintiff must plead "'"willful, affirmative misconduct."'" (Thi E-Commerce, supra, 95 Cal.App.5th at p. 538.) The Unruh Civil Rights Act "does not extend to practices and policies that apply equally to all persons" even if those practices and policies have a disparate impact on the particular protected group. (Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1408.) Therefore, "[a] claimant may not 'rel[y] on the effects of a facially neutral policy on a particular group . . . to infer solely from such effects a discriminatory intent.' [Citations.] . . . Although 'evidence of disparate impact [may] be probative of intentional discrimination in some cases' under the Unruh Civil Rights Act, it cannot alone establish such intent." (Martinez v. Cot'n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1036 (Martinez), quoting Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.)
Allegations that a neutral structure has a disparate impact based on disability or that the defendant failed to address the disparate impact are not sufficient to state a claim under the Unruh Civil Rights Act. (Thi E-Commerce, supra, 95 Cal.App.5th at pp. 538-539; Martinez, supra, 81 Cal.App.5th at p. 1036.) As did the courts in Thi E-Commerce and Martinez, we conclude the inaccessibility of SoundCloud's Web site to customers with visual impairments due to its lack of compatibility with screen reading software is not an act of intentional discrimination and therefore cannot support a claim for violation of the Unruh Civil Rights Act. We further agree with the reasoning of Thi E-Commerce and conclude Soundcloud's failure to ameliorate the alleged barriers to the use of its Web site by the visually impaired after Martin's counsel's letter informed Soundcloud in the most general terms of the inaccessibility of its Web site was not an act of intentional discrimination. (Thi E-Commerce, supra, 95 Cal.App.5th at p. 539.)
Martin argues SoundCloud's Web site contains "access barriers that prevent free and full use by [Martin] and other blind persons using screen reading software," including empty links and broken ARIA references. Although the empty links and broken references would affect all users of the Web site and thus appear facially neutral, Martin argues "failing to offer an accessible website that is compatible with screen readers can constitute proxy discrimination, which is a form of disparate treatment." "Proxy discrimination . . . arises when the defendant enacts a law or policy that treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is, constructively, facial discrimination against the disfavored group." (Pacific Shores Properties v. City of Newport Beach (9th Cir. 2013) 730 F.3d 1142, 1160, fn. 23.) As noted, ante, disparate impact of a neutral structure is not enough to state a claim for intentional discrimination.
ARIA is an acronym for Accessible Rich Internet Applications. (See Reid, Internet Architecture and Disability (2020) 95 Ind. L.J. 591, 617, fn. 135.)
In any event, Martin does not and cannot allege that the failure to make the SoundCloud Web site compatible with screen reading software is a proxy for a policy of intentionally discriminating against individuals with visual impairments. Martin does not allege the screen reading software is used almost exclusively by individuals with visual impairments (see Erie County Retirees Ass'n v. County of Erie, PA (3d Cir. 2000) 220 F.3d 193, 211 [Medicare status is direct proxy for old age]; Community Services v. Wind Gap Mun. Authority (3d Cir. 2005) 421 F.3d 170, 177 [classification based on gray hair is proxy for age, and classifications based on service dogs or wheelchairs are proxies for handicapped status]), and given his election not to amend the complaint, he cannot do so (Wang v. City of Sacramento Police Dept. (2021) 68 Cal.App.5th 372, 377-378 [when plaintiff rejects the opportunity to amend a complaint, Court of Appeal presumes plaintiff has stated the strongest case possible]).
Martin also argues the trial court erred by failing to consider the effect of Ruiz v. Musclewood Property Investments, LLC (2018) 28 Cal.App.5th 15 (Ruiz), in which the appellate court held the defendant's knowledge of his guard dog's repeated attacks on the plaintiff's guide dog permitted the court to infer the defendant's intent to interfere with the plaintiff's admittance to or enjoyment of public facilities. (Id. at p. 22.) Ruiz, however, alleged a cause of action under the Disabled Persons Act (Civ. Code, § 54 et seq.), not the Unruh Civil Rights Act. Further, Ruiz did not address whether intent is even an element of the claim asserted. (Ruiz, supra, 28 Cal.App.5th at p. 22.) California cases have held unequivocally there is no intent element under the Disabled Persons Act, Civil Code section 54.3. (See Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 792; Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 177.)
Martin argues SoundCloud's failure to correct its Web site after being made aware of its inaccessibility problems constitutes intentional discrimination. In February 2021, Martin's counsel sent a letter to SoundCloud informing it of the Web site's inaccessibility to individuals with visual impairments. SoundCloud did not respond to the letter or take corrective action. Martin alleges the failure to take "adequate actions to correct these barriers [to accessibility by those with visual impairments] even after being notified of the discrimination that such barriers cause" constitutes intentional discrimination.
Martin's argument fails for two reasons. First, as the Martinez court held, because intent to discriminate cannot be shown by evidence of a disparate effect of a neutral structure, it also cannot be shown by a failure to address or correct the claimed disparate effect. (Martinez, supra, 81 Cal.App.5th at p. 1036; see Greater Los Angeles Age. on Deafness, Inc. v. Cable News (9th Cir. 2014) 742 F.3d 414, 426-427.)
Second, Martin's letter to SoundCloud reads: "This law firm has been retained by a blind consumer advocate to file suit against you under the California Unruh [Civil Rights] Act. [¶] In short, your website (www.soundcloud.com) is not fully accessible to blind users. Numerous California courts have ruled that disability access laws apply to commercial websites. [¶] Because we plan to file suit in the near future, we urge you to consult your own counsel about your rights and obligations in this emerging area of law. Should you wish to discuss this matter before suit is filed, your counsel should promptly contact me." (Fn. omitted.) The letter did not identify particular features of the Web site that were inaccessible to Martin or identify what SoundCloud would need to do to make its Web site fully accessible.
Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, on which Martin relies, is distinguishable. Procedurally, the appeal in Hankins was from a judgment after a bench trial, not an order sustaining a demurrer. More important, in Hankins there was clear evidence of intentional discrimination: The restaurant's policy was to refuse to allow patrons with disabilities to use an employee restroom on its first floor, instead requiring them to walk up a flight of stairs to the customer restroom on the second floor. (Id. at p. 515.) The restaurant had posted a sign near its front entrance reading: "'Premises Not Wheelchair Equipped.'" (Ibid.)
Martin's first amended complaint failed to allege facts sufficient to state a cause of action for intentional discrimination under the Unruh Civil Rights Act. The trial court did not err in sustaining the demurrer on that ground.
Martin also challenges the trial court's ruling that the first amended complaint failed to allege causation and damages. In light of our holding that Martin failed to allege the element of intent, we need not address these issues.
III.
WHETHER A DIGITAL SERVICES WEB SITE IS A PLACE OF PUBLIC ACCOMMODATION
As relevant here, the ADA provides, "No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation." (42 U.S.C. § 12182(a).) To establish a violation of the ADA, a plaintiff must plead and prove: (1) plaintiff has a disability within the meaning of the ADA; (2) defendant owns or operates a place of public accommodation; and (3) defendant denied plaintiff full enjoyment of the place of public accommodation because of the plaintiff's disability. (Martinez, supra, 81 Cal.App.5th at p. 1039; see Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)
In Thi E-Commerce, another panel of this court addressed whether a Web site is a place of public accommodation. After considering the language of the ADA, the state and federal cases interpreting it, its legislative history, and the public policy underlying the statute, the Thi E-Commerce court concluded "the ADA applies only to physical places" and the plaintiff's allegation that a stand-alone Web site violated the ADA therefore was not sufficient to state a cause of action under the Unruh Civil Rights Act. (Thi E-Commerce, supra, 95 Cal.App.5th at p. 533; see Martinez, supra, 81 Cal.App.5th at pp. 1044-1045; accord Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1114.)
We grant Martin's unopposed request for judicial notice. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rules 8.54, 8.252(a).) All of the documents attached to the request are potentially relevant to the issue of whether a Web site can be a place of public accommodation for purposes of the ADA. Some but not all of these were included in a request for judicial notice to the trial court, which was denied. We will give these documents the weight to which they are entitled.
We agree. The ADA defines place of public accommodation by reference to categories containing examples only of physical locations. (42 U.S.C. § 12181(7)(A)-(L).) Moreover, the regulation implementing the ADA uses the same categories, but adds that a place of public accommodation is a "facility," which is defined as "all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located." (28 C.F.R. § 36.104.) A stand-alone Web site such as SoundCloud's, which has no connection to any physical location, is not embraced within these definitions. As the Thi E-Commerce court held, "We agree with the majority view that a 'place of public accommodation' requires a physical location. We reach this conclusion because (1) it is the most natural usage of the phrase 'place of public accommodation'; (2) the examples listed in title 42 United States Code section 12181(7) are all places that traditionally operate out of a physical location open to the public; and (3) the relevant regulations define the phrase in terms of a 'facility,' which, in turn, is defined in terms of physical structures. Combined, these textual indicators leave no room for ambiguity." (Thi E-Commerce, supra, 95 Cal.App.5th at p. 531.)
Although Web sites now are ubiquitous and may be thought of or colloquially referred to as a "place," that certainly was not the case when Congress enacted the ADA in 1990. (See Thi E-Commerce, supra, 95 Cal.App.5th at p. 533.)
Further, when enacting the ADA, Congress would have been aware of the existence of "'countless . . . businesses operating outside of brick-and-mortar premises in 1990, including some that had been in operation for decades,' such as mail order catalogs. [Citation.] Congress's decision to nevertheless use the phrase 'place,' the plain meaning of which involves physical space, could easily be understood as an intentional exclusion of businesses without any physical presence from the scope of [the provisions of the ADA addressing public accommodations and services operated by private entities] - even if they might constitute 'sales and retail establishments' under section 12181(7) of title 42 of the United States Code." (Martinez, supra, 81 Cal.App.5th at p. 1044.)
Some cases hold that, although a Web site is not itself a place of public accommodation under the ADA, an alleged denial of equal access to a Web site can support an ADA claim if the denial prevents or impedes a plaintiff with a disability from equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities. (See Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1065-1066; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644.) These cases have no application here, however, as Martin did not allege SoundCloud has a physical facility.
Finally, although a minority of courts has concluded a physical location is not required to allege a place of public accommodation for purposes of the ADA, we are not persuaded by their analysis or reasoning. For instance, Carparts Distribution Center v. Automotive Wholesaler's Assn. (1st Cir. 1994) 37 F.3d 12, 19, held a business can be a place of public accommodation without having a physical structure for people to enter, but it did not address the impact of the use of the term "facility" in part 36.104 of title 28 of the Code of Federal Regulations. In Pallozzi v. Allstate Life Ins. Co. (2d Cir. 1999) 198 F.3d 28, 32-33, the court held "the sale of insurance policies in insurance offices" is covered by the ADA. (Italics added.) The court's reference to a physical location makes it even less persuasive.
We agree with the holdings and rationale of Thi E-Commerce, Martinez, Weyer v. Twentieth Century Fox Film Corp., Magee v. Coca-Cola Refreshments USA, Inc. (5th Cir. 2016) 833 F.3d 530, Ford v. Schering-Plough Corp. (3d Cir. 1998) 145 F.3d 601, and Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006. We conclude the ADA applies only to physical places. Because Martin did not allege a violation of the ADA arising at or from a physical place, he failed to state a cause of action under the Unruh Civil Rights Act for a violation of the ADA, and the trial court did not err in sustaining the demurrer to the first amended complaint on that ground.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: O'LEARY, P. J., MOTOIKE, J.