ALEJANDRO MARTINEZ, Plaintiff and Appellant, v. COT‘N WASH, INC., Defendant and Respondent.
B314476
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 8/1/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 20STCV33139)
Pacific Trial Attorneys, Scott J. Ferrell, Victoria C. Knowles and Richard H. Hikida for Plaintiff and Appellant Alejandro Martinez.
Lahti Helfgott, Brian E. Lahti and Jonathan A. Helfgott for Defendant and Respondent Cot‘n Wash, Inc.
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 (
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 (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.” (
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 interpretаtion 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.” (
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
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 visuаlly-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 cоunsel 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
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.” (
On appeal, Martinez contends the FAC alleges facts sufficient to establish an Unruh Act claim under both theories. As to Martinez‘s first
I. The FAC Does Not Allege Facts Establishing Intentional Discrimination
Unless an Unruh Act claim is based on an ADA violation, the act requires a claimant to prove ” ‘intentional discrimination.’ ” (Koebke, supra, 36 Cal.4th at p. 854.) 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.” (Ibid.; see also ibid. [” ’ [a] disparate impact analysis or test does not apply to Unruh Act claims’ “].) Thus, absent an ADA violation, the Unruh Act requires allegations supporting ” ‘willful, affirmative misconduct’ ” (id. at p. 853) with the specific intent “to accomplish discrimination on the basis of [a protected trait].” (Id. at p. 854.) Although “evidence of disparate impact [may] be probative of intentional discrimination in some cases” under the Unruh Act, it cannot alone establish such intent. (Ibid, italics omitted.)
Martinez argues that the FAC alleges such ” ‘willful, affirmative misconduct’ ” (Koebke, supra, 36 Cal.4th at p. 853) sufficient to establish intеntional discrimination and thus states a cause of action under the Unruh Act on that independent basis. Specifically, he argues the FAC allegations establish CW ” ‘failed to take adequate actions to correct’ ” accessibility barriers in its website ” ‘even after being notified’ ” of them in correspondence from Martinez‘s counsel. (Boldface and italics omitted.) But if, under the reasoning of Koebke, Martinez cannot establish CW‘s intent to discriminate by showing only that its website does not allow visually impaired individuals the same access available to those who are not visually impaired (i.e., a disparate effect of a neutral structure), it follows that CW‘s failure to address this disparate effect likewise cannot establish CW‘s intent to discriminate. (Koebke, supra, at p. 854; see Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1237-1239 (Belton); see id. at pp. 1229-1230 & 1237 [defendant‘s practice of offering music services and television programming as a package without an option for consumers to buy only music services alone “applied equally to sighted and blind subscribers” was neutral on its face and thus not actionable despite alleged disproportionate impact on blind people]; see also Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 426-427 (GLAAD) [rejecting as part of a “misguided effort to
Martinez attempts to distinguish federal cases reaching a similar result on the basis that the defendants in those cases took more corrective action than did CW after being informed that a facially neutral general policy was having a disparate impact on disabled individuals. (See, e.g., GLAAD, supra, 742 F.3d at p. 426 [noting in connection with intentional discrimination analysis that defendant had “respon[ded] to [plaintiff‘s] captioning request” by “stat[ing] that it offered a number of text-based services and explain[ing] that it would be ‘ready to provide whatever web access is ultimately required’ by the [Federal Communications Commission‘s] then-pending captioning rules“]; Cullen v. Netflix, Inc. (N.D.Cal. 2012) 880 F.Supp.2d 1017, 1024 [“allegations demonstrating [defendant‘s] efforts to improve access for hearing-impaired customers” such as that “the rate at which [defendant] is captioning content has continued to increase since 2008” prevented an inference of intentional discrimination under the Unruh Act]; see also Wilkins-Jones v. County of Alameda (N.D.Cal. 2012) 859 F.Supp.2d 1039, 1052-1053 [plaintiff‘s “alleg[ations] that [d]efendants did not fully and timely comply with, e.g., her requests for medication (some were provided)” and that her requests for a wheelchair were refused “based on the inadequate assessments performed by [d]efendants” were “insufficient to reasonably infer discriminatory intent” under the Unruh Act].) To the extent those federal cases suggest an Unruh Act plaintiff can prove intentional discrimination solely through a defendant‘s failure to adequately respond to complaints about discriminatory effects of a neutral policy or action—and we are not convinced that they all do—we disagree with them as inconsistent with Koebke.
Martinez cites Ruiz v. Musclewood Property Investments, LLC (2018) 28 Cal.App.5th 15 (Ruiz) for the proposition that, Koebke notwithstanding, a defendant‘s failure to correct a known accessibility problem resulting from an individual‘s disability can support an inference that the defendant is intentionally discriminating against that individual based on his disability. (Id. at p. 22.) Ruiz involved a claim under the Disabled Persons Act,
Because Koebke is a Supreme Court decision contrary to Ruiz‘s dictum related to intent, it is not surprising that Martinez has not cited (nor are we aware of) any California case applying the intent-related dictum in Ruiz to an Unruh Act claim. Nor are we persuaded by the unpublished federal cases Martinez cites to support applying this concept in the Unruh Aсt context. (See Martinez v. Adidas America, Inc. (C.D.Cal. July 9, 2019, No. EDCV 19-841) 2019 WL 3002864; Thurston v. ClearPath Lending, Inc. (C.D.Cal. Jan. 28, 2019, No. SACV 18-2094) 2019 WL 366405.) Not only are these cases not binding on this court, they also assess federal question jurisdiction, and therefore deal only indirectly with the viability of a particular Unruh Act claim. (See Martinez v. Adidas America, Inc., supra, 2019 WL 3002864 at p. *4 [concluding Unruh Act complaint plausibly alleged a theory of intentional discrimination under a non-ADA legal theory]; Thurston v. ClearPath Lending, Inc., supra, 2019 WL 366405 at p. *3 [same].) Indeed, neither of these cases analyzes the intent issue in any depth, and thus neither is helpful on this point. (See Martinez v. Adidas America, Inc., supra, 2019 WL 3002864 at p. *4; Thurston v. ClearPath Lending, Inc., supra, 2019 WL 366405 at p. *3.)
For these reasons, we do not recognize a failure to address known discriminatory effects of a policy as alone sufficient to establish intentional discrimination under the Unruh Act, and the FAC could not have stated a cognizable Unruh Act claim on this basis.
II. The FAC Does Not Allege Facts Establishing a Violation of the ADA, Because CW‘s Website Is Not a “Place of Public Accommodation”
We next turn to the issue of whether the FAC states an Unruh Act cause of action based on a violation of the ADA, which does not
A. Case Law Is Inconsistent Regarding When a Website Constitutes a “Place of Public Accommodation” for Purposes of a Title III Violation
The question before us is whether CW‘s website constitutes a “place of public accommodation” for the purposes of Title III. (
both consumers and businesses to communicate information and conduct transactions, and are now essential tools in conducting daily affairs. Thus, the issue whether websites are subject to ADA requirements has been the subject of a growing
1. Conflicting Views of Federal Courts
“[T]he courts have reached different conclusions on the issue whether a website is a public accommodation. The federal courts have expressed two main views.” (SDCCU, supra, 50 Cal.App.5th at p. 1061.) One view “is that websites are ‘public accommodations’ within the meaning of the ADA. This approach has been adopted by courts in the First, Second, and Seventh Circuits. (National Assn. of the Deaf v. Harvard University (D.Mass. 2019) 377 F.Supp.3d 49, 57-59 . . . ; Gil [v. Winn Dixie Stores, Inc. (S.D.Fla. 2017)] 242 F.Supp.3d [1315,] 1318-1319 [(Gil)]; see Carparts Distribution Center v. Automotive Wholesaler‘s Assn. (1st Cir. 1994) 37 F.3d 12, 19-20 (Carparts); [National Assn. of the Deaf v.] Netflix, Inc. [(D.Mass. 2012)] 869 F.Supp.2d [196,] 201-203 [(Netflix)]; Doe v. Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557, 559 [(Mutual of Omaha)]; Access Living of Metropolitan Chicago v. Uber Technologies, Inc. (N.D.Ill. 2018) 351 F.Supp.3d 1141, 1155-1156; Pallozzi v. Allstate Life Ins. Co.
(2d Cir. 1999) 198 F.3d 28, 32 [(Pallozzi)]; Andrews v. Blick Art Materials, LLC (E.D.N.Y. 2017) 268 F.Supp.3d 381, 390-393 . . . ; National Federation of the Blind v. Scribd Inc. (D.Vt. 2015) 97 F.Supp.3d 565, 567-576 . . . .) [¶] Courts adopting this view have relied on the ‘service establishment[s]’ category of the statutory definition, and particularly the fact that ‘travel service’ is contained in the illustrative list of these establishments ([
The second view of the issue taken by federal courts “is that websites are not ‘public accommodations’ under the ADA, but a denial of equal access to
Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006, 1010-1014 . . . ; Castillo v. Jo-Ann Stores, LLC (N.D.Ohio 2018) 286 F.Supp.3d 870, 876-881 . . . ; Haynes v. Dunkin’ Donuts, LLC (11th Cir. 2018) 741 Fed. Appx. 752, 754 . . . ; Gomez v. General Nutrition Corp. (S.D.Fla. 2018) 323 F.Supp.3d 1368, 1375 . . . ; see also Rendon v. Valleycrest Productions, Ltd. (11th Cir. 2002) 294 F.3d 1279, 1284-1286.)” (SDCCU, supra, 50 Cal.App.5th at p. 1063.)
“The courts adopting this narrower . . . definition of a ‘public accommodation’ have relied on Congress‘s explicit listing of the type of places considered to be ‘public accommodations,’ and have emphasized that essentially all of these categories describe a physical location. [Citations.] With respect to [
2. Relevant California Precedent
The limited California case law on this topic offers little guidance in navigating this federal circuit split. At least two California Courts of Appeal have applied the nexus analytical framework in assessing whether a website is a place of public accommodation. (See SDCCU, supra, 50 Cal.App.5th 1048; Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston).) Because both these cases determined the requisite nexus existed, however, neither provided an occasion for the court to consider under what circumstances, if any, a standalone website can meet this definition.
In Thurston, a blind woman sued a restaurant for disability discrimination under the Unruh Act for maintaining a website that was incompatible with her screen reading software. (Thurston, supra, 39 Cal.App.5th at pp. 636-638.) Thurston applied a nexus-based approach and upheld summary judgment in the plaintiff‘s favor on a theory that the restaurant had violated the ADA. (Thurston, supra, at pp. 642-646.) In so doing, Division Eight of this court explained 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 technolоgy to effectuate the intent of the statute.” (Thurston, supra, at p. 644.) It further noted, however, that because the restaurant had a physical presence, the court “need not consider . . . the wholly hypothetical question whether Title III governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.” (Ibid.)
SDCCU similarly applied the nexus standard to an ADA-based Unruh Act claim regarding the accessibility of a website of a bank that maintained physical facilities. (SDCCU, supra, 50 Cal.App.5th at pp. 1053 & 1070-1071.) “Because [the court] . . . concluded [the plaintiff‘s] allegations were sufficient to satisfy the nexus standard, [the court] [did] not reach the legal issue whether the ADA applies to websites even without a nexus to a physical place.” (SDCCU, supra, at p. 1071.)
Belton, supra, 151 Cal.App.4th 1224 addresses the related issue of whether a digital cable service constitutes a place of public accommodation for the purposes of the ADA. In Belton, cable subscribers brought an action against a cable service provider, challenging the provider‘s practice of offering radio and music service only when bundled together with television service. The plaintiff‘s claim was that “the [television] programming provided in the basic cable tier is ‘inaccessible’ to blind people, and therefore [the cable provider] must accommodate blind individuals by providing FM or music services á la carte.” (Belton, supra, 151 Cal.App.4th at p. 1238.) The court affirmed summary judgment for the cable provider on that basis that, in order “to state a claim under the ADA, plaintiffs must show that they have been denied access to a place of public accommodation and, as a matter of law, cable services are not such a place.” (Belton, supra, at p. 1238, italics omitted.) In so holding, Belton relied heavily on and adopted the reasoning of Torres v. AT&T Broadband, LLC (2001) 158 F.Supp.2d 1035, which held that a digital
CW argues that Belton is dispositive on the public accommodation issue and requires us to reject an interpretation of “place of public accommodation” that encompasses websites without any connection to a physical space. But Belton is distinguishable in terms of its facts and reasoning, and thus does not dictate our analysis in the instant appeal. Namely, Belton involved a very different type of digital “place” than the one at issue here. The fact that one type of digital place (a digital cable menu or system) does not constitute any of the “public accommodation” listed in Title III does not mean another type of digital place (a retail website) also does not. Belton concluded that a digital cable platform is not a modern-day version of “a motion picture house” (or any other statutorily enumerated type of public accommodation). (
B. Considered Together, the Plain Language of the Statute, Maxims of Statutory Construction, and Legislative History Pre-dating the Passage of Title III Do Not Establish That Purely Digital Retail Websites Are “Places of Public Accommodation”
“[T]he fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature.” (People v. Cruz (1996) 13 Cal.4th 764, 782.) ” ‘To determine legislative intent, a court begins with the words of the statute, because they generally
Martinez argues that the plain meaning of “place of public accommodation” is alone sufficient for us to adopt the broader view taken by several federal courts—namely, that a physical place is not a necessary component of the ADA‘s definition of a place of public accommodation. (See, e.g., Carparts, supra, 37 F.3d at pp. 19-20; Netflix, supra, 869 F.Supp.2d at pp. 201-203; Mutual
of Omaha, supra, 179 F.3d at p. 559; Pallozzi, supra, 198 F.3d at p. 32.)
We disagree that the plain language of the statute is alone sufficient to decide the issue—let alone sufficient to decide the issue in Martinez’s favor. First, the plain meaning of the term “place” weighs against adopting Martinez’s proposed interpretation. Dictionaries “overwhelmingly” define “place” as involving a physical location.6 (Winegard, supra, 556 F.Supp.3d at p. 179.) Neither Title III nor any implementing regulations provide a different definition of the word for the purposes of Title III. Nor does the state of technology when the ADA was passed in 1990 suggest that Congress was unaware that the term carried a connotation of physical space and thus could exclude certain “sales and retail establishments” from the scope of Title III based on a lack of connection to a physical space. “[T]here were 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. (Winegard, supra, 556 F.Supp.3d at pp. 177-178.) 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 Title III—even if they might constitute “sales and retail establishments” under
Turning to the entire phrase, “place of public accommodation,” the plain meaning of the statute’s language is not dispositive, because there is no “plain meaning” of this phrase. Decades of conflicting federal case law interpreting it establishes that, instead, the term is ambiguous.
The term “facility“—a necessary component of the definition of “place of public accommodation” under the Code of Federal Regulations (
“When the statutory text is ambiguous, or it otherwise fails to resolve the question of its intended meaning,” we proceed to the second step, and “look to the statute’s legislative history and the historical circumstances behind its enactment.” (Klein v. United States of America (2010) 50 Cal.4th 68, 77.) “In this step, courts may ‘turn to secondary rules of interpretation, such as maxims of construction, “which serve as aids in the sense thаt they express familiar insights about conventional language usage.” ’ ” (Alejo v. Torlakson (2013) 212 Cal.App.4th 768, 787 (Alejo), quoting Katz v. Los Gatos-Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 55.) Martinez argues that these tools of statutory interpretation—in particular legislative history—support his proposed construction of Title III. For reasons we discuss below, on balance, these interpretative tools do not provide a basis on which we can adopt Martinez’s proposed interpretation. Rather, they lead us to the opposite conclusion.
Maxims of statutory construction support adopting a narrow interpretation of “place of public accommodation.” As previously noted, regulations define “place of public accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one of” the 12 categories specifically listed in
Martinez urges that a website qualifies as “other personal property” and therefore constitutes a “facility.” But “a word is known by the company it keeps” and should not be given “a meaning so broad that it is inconsistent with its accompanying words.” (Yates v. United States (2015) 574 U.S. 528, 543; see also People v. Garcia (2016) 62 Cal.4th 1116, 1124 [recognizing and applying the principle of noscitur a sociis].) The term “other . . . personal property” appears at the end of a list of exclusively physical spaces and, as to “equipment” or other “personal property,” presupposes the existence of a “site where the . . . property . . . is located.” (
Martinez argues that we must nevertheless interpret the terms “facility” and “place of public accommodation” broadly enough to include all retail websites, because to do otherwise would lead to an absurd result. Specifically, he argues it would be absurd for Title III to treat a sales transaction differently, depending on the venue through which it occurs. The First Circuit Court of Appeals found this principle persuasive in holding a “place of public accommodation” does not require any kind of a physical presence. It concluded 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. Congress could not have intended such an absurd result.” (See Carparts, supra, 37 F.3d at p. 19.)
We disagree. Although treating retail websites like other retailers in 2022 does make sense, it does not follow that treating them differently from brick and mortar retailers cannot also make sense. We do not view it as absurd or irrational for Congress to address discrimination by online retailers in a different manner than it addresses discrimination by brick and mortar retailers. These are, after all, two distinct tyрes of retailers, each subject to a
Because brick and mortar stores conduct business differently than do retail websites, the type and extent of the burdens anti-discrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one. Given the different burden-benefit calculus that would apply in determining how to impose accessibility requirements on these two different types of retailers, it would not be an absurd result that Title III addresses only physical retailers, and that the question of how to properly balance the benefits and burdens of imposing similar requirements on purely digital retailers remains for Congress to separately consider. We thus conclude that it would not be an absurd result to interpret Title III as treating transactions differently depending on whether they are purely digital or have a physical component, and that avoiding an absurd result therefore cannot drive our interpretation of the language at issue.
Martinez further argues that we must interpret the terms “place of public accommodation,” “other personal property,” and “facility” broadly enough to include digital-only websites, because doing otherwise would be inconsistent with the purpose of Title III, and inconsistent with the edict that we are to interpret the ADA broadly and with its purpose in mind. The purpose of Title III is ” ‘to bring individuals with disabilities into the economic and social mainstream of American life . . . in a clear, balanced, and reasonable manner’ ” and afford “people with disabilities . . . equal access to the array of goods and services offered by private establishments and made available to those who do not have disabilities.” (Gniewkowski v. Lettuce Entertain You Enterprises, Inc. (W.D.Pa. 2017) 251 F.Supp.3d 908, 916; accord, PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 674-675.) Today, the “economic and social mainstream of American life” takes place in large part on the internet; websites are one of the primary ways the public may gain “access to the array of goods and sеrvices offered by private establishments.” (Gniewkowski, supra, at p. 916; see Packingham v. North Carolina (2017) 582 U.S. __ [198 L.Ed.2d 273, 137 S.Ct. 1730, 1735] [referring to “cyberspace” as the most important “place[ ]” for the exchange of views]; see also Thurston, supra, 39 Cal.App.5th at p. 643 [noting the internet’s ” ‘prevalence and power have changed the dynamics of the national economy’ “], quoting South Dakota v. Wayfair (2018) 585 U.S. __ [201 L.Ed.2d 403, 138 S.Ct. 2080, 2097].) Martinez also stresses that legislative history supports “that Congress intended the ADA to adapt to changes in technology.” (Netflix, supra, 869 F.Supp.2d at pp. 200-201, citing H.R.Rep. No. 101-485, 2d Sess., p. 108 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, pp. 303, 391.)
We agree with Martinez that reaching his desired result—lessening barriers to accessing electronic commerce faced by disabled individuals—would be consistent with the general, overall goal of Title III. But not everything that is consistent with the goal of Titlе III can be found in the language of that statute. And simply because one interpretation would be consistent with the overall goal of the statute does not necessarily mean that a different interpretation “would inevitably frustrate the manifest purposes of the legislation as a whole” (In re Ge M., supra, 226 Cal.App.3d at p. 1523)—particularly when, as here, the law inherently involves a balancing of benefits and burdens to different stakeholders.
Nor is the mandate to interpret that language broadly, and in a manner that takes into account changes in technology, a blanket authorization to require anything that would achieve the ADA’s overall goal of equal access. Congress chose specific language. Given the lack of support for interpreting “place” or “place of public accommodation” as including digital websites under the plain meaning of these terms and the canons of statutory construction, we are loathe to rely entirely on the broad goals of the statute as a sufficient basis for doing so. Based on the language Congress (and the DOJ in implementing regulations) chose, even considеred in the context of Title III policy goals and a need to interpret the law expansively, it is not clear that Congress intended this result in drafting Title III.
Thus, even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a “place of public accommodation” in the context of Title III.
C. Based on Legislative History Since Congress Passed Title III, This Court May Not Interpret Title III As Covering Digital-Only Websites
” ‘If ambiguity remains after resort to secondary rules of construction and to the statute’s legislative history, then we must cautiously take the third and final step in the interpretive process. [Citation.] In this phase of the process, we apply “reason, practicality, and common sense to the language at
Congress and the DOJ have long been aware of the confusion in the courts regarding whether and when a website can be considered a “place of public accommodation,” but have chosen not to clarify the issue through amendments to the statute or additional rulemaking. The federal circuit split began in the 1990’s, and resolving it—be it through judicial or legislative means—has been the topic of legal scholarship ever since then.
In addition, as early as 2000, Congress began holding hearings to discuss the significance, for purposes of interpreting the ADA, of the fact that commerce was increasingly occurring online. At a February 9, 2000 oversight hearing before the Subcommittee on the Constitution of the Committee on the Judiciary on the “Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites,” the committee noted that the “[f]ederal government is scheduled to promulgate handicapped accessibility requirements that will apply to [f]ederal department and agency Internet sites” which would “likely be used as a model for Internet accessibility requirements by litigants suing private providers of Internet web sites and services under the [ADA].” (H.R.Rep. No. 106-1048, 2d Sess., p. 275 (2001).) It further heard from the DOJ, which was of the opinion “that the ADA’s accessibility requirements do apply to private Internet web sites and services.” (Ibid.) The committee recognized that the changing role of internet commerce “raise[d] issues related to the new significance of the Internet economy to recent economic growth, the costs that application of the ADA would impose on that rapidly expanding segment of the economy, and the substantial First Amendment implications of applying the ADA to private Internet web sites and services.” (Ibid.) These same issues were again discussed at a September 13, 2006 hearing before the same committee. (See, e.g., Hearing before House Com. on Judiciary, Subcom. on Constitution, 109th Cong., 2d Sess., at pp. 924-925 (Sept. 13, 2006) [testimony that 98 percent of websites are inaccessible to disabled individuals and that access to the internet is crucial in modern society]; id., p. 105 [statement advocating for interpreting Title III to cover websites]; id., p. 97 [testimony suggesting congress intended ADA to expand to account for changes in technology like those related to internet commerce].)
Nevertheless, when Congress amended the ADA in 2008, it did so to clarify a different area of judicial confusion interpreting the scope of the act
In response, the DOJ representative at the hearing indicated in no uncertain terms that the DOJ viewed websites, whether or not associated with a physical place, as places of public accommodation under Title III. (See, e.g., Hearing before House Com. on Judiciary, Subcom. on Constitution, Civil Rights and Civil Liberties, 111th Cong., 2d Sess., at pp. 6 & 16 (Apr. 22, 2010).) The DOJ has offered the same view in amicus briefs filed in various federal courts for over 20 years.7 Yet the DOJ has chosen not to exercise its
ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” (U.S. Dept. of Justice, Guidance on Web Accessibility, and the ADA (Mar. 18, 2022) <http:beta.ada.gov/resources/web-guidance> [as of July 29, 2022], boldface omitted.)
It thus appears that, no later than 2010, Congress and the DOJ (1) both recognized the need to clarify whether and under what circumstances a website might constitute a “place of public accommodation,” and (2) agreed that such clarification should take a broad and inclusive approach. The only conclusion we can draw from their failure in the 12 years that followed to provide any such clarification through regulation or statute is that neither officially endorses this approach. We cannot attribute this inaction to Congress’s difficulty with or reluctance to draft laws specifically addressing websites, given that the ADA expressly addresses accessibility of some websites for disabled individuals—it just does not do so in the context of Title III. Specifically, federal departments and agencies must provide individuals with disabilities the same level of access to electronic and information technology—including through websites—as that enjoyed by individuals without disabilities. (
Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification. To the contrary, it is a reason for us not to do so. This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislativе fact-finding.
Martinez urges that the DOJ has in fact acted to clarify the confusion through amicus briefs and consent decrees in various cases, which take
In sum, we do not view the DOJ’s willingness to support Martinez’s proposed interpretation only in case-specific scenarios—while declining to adopt the position via rulemaking action—as weighing in favor of our adopting that interpretation. To the contrary, we conclude the DOJ’s approach to the issue weighs against our adopting such an interpretation. As noted, we agree it would serve the goals of the Title III to interpret “facility” and, by
extension, “place of public accommodation”9 as covering websites, but that does not necessarily mean no other goals or considerations weigh against a blanket application of Title III to all websites. Ours is not to draft a law that chooses from among these various goals; ours is to interpret the law as written, an enterprise in which we are guided by legislative intent. We ultimately conclude that the language of the statute, when considered in the context of Congress’s failure to act and the DOJ’s silence in terms of formal guidance, does not permit us to adopt an interpretation of the statute that is not dictated by its language, especially in the face of the legislative and agency inaction described above.
Based on all of the factors we discuss above, we conclude that CW’s website is not a “place of public accommodation” under Title III as currently written. Thus, the FAC also cannot state a claim under the Unruh Act based on CW’s denying Martinez access to CW’s website in a manner that violates Title III.
Given that the FAC also fails to allege intentional discrimination, it fails to state a viable legal claim under the Unruh Act, and the court correctly sustained CW’s demurrer.
As to the dismissal with prejudice, Martinez argues that he should be permitted leave to amend only if this court determines that he “potentially could have” “sufficiently plead his intentional discrimination theory of liability” “based on evidence provided to the trial court indicating that the website continued to remain inaccessible to blind individuals even after the filing of the FAC.” (Capitalization omitted.) We do not so conclude. For the reasons we outline above, allegations that CW failed to ameliorate discriminatory effects of its facially neutral website—even for a longer period of time than alleged in the FAC—cannot establish intentional discrimination. Therefore, the court did not err in sustaining the demurrer without leave to amend.
DISPOSITION
Accordingly, the judgment dismissing the complaint is affirmed. The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.