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Thurston v. Midvale Corp.

California Court of Appeals, Second District, Eighth Division

September 3, 2019

CHERYL THURSTON, Plaintiff and Respondent,
MIDVALE CORPORATION, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Los Angeles County No. BC663214 Samantha Jessner, Judge. Affirmed.

          Gordon Rees Scully Mansukhani, Roger M. Mansukhani, Jon C. Yonemitsu, Kara A. Ritter; Greines, Martin, Stein & Richland, Marc J. Poster and Alison M. Turner for Defendant and Appellant.

          Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.

          Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, Victoria C. Knowles and Richard H. Hikida for Plaintiff and Respondent.

          STRATTON, J.

         Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant's restaurant website,, with her screen reader. Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).

         This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston. Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software. Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court's imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston. We decline to do so.

         Appellant raises three other contentions. First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process. Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers. Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief. The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.


         The facts are straightforward. Thurston is blind and uses screen reader software to access the Internet. Among other functions, a screen reader vocalizes invisible code (alternative text) embedded beneath graphics on the website and describes the content of the webpage. In her complaint, Thurston identified significant barriers when she tried to use appellant's website for its restaurant, The Whisper Lounge: with her software she could not read the menu or make reservations. In addition, the graphics were either inadequately labelled or not labelled at all, so her screen reader could not discern what information the graphics purported to present. Thurston stated this unsuccessful encounter caused her difficulty, discomfort, and embarrassment. The website, however, did list a telephone number for The Whisper Lounge. Thurston was unaware the website listed a telephone number. Nonetheless, she stated that using the telephone number as an alternative would not have provided her with the same privacy and independence that a fully accessible website offered or that the non-accessible website offered a sighted person. The website's reservation system was accessible 24 hours per day every day to sighted individuals, but reserving a table by calling the restaurant could only be done during the restaurant's operating hours.

         Thurston filed a complaint against the owner of The Whisper Lounge, Midvale Corporation, alleging that the inaccessible website violated the Unruh Act (Civ. Code, § 51 et seq.) which mandates “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (a).) The Unruh Civil Rights Act also provides that a “violation of the federal American with Disabilities Act of 1990 [(ADA)] shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).) It was under subdivision (f) that Thurston brought her lawsuit.

         The trial court granted summary judgment in Thurston's favor. The court found Title III of the ADA applied to the website: “The court finds a plain reading of the statute, as well as the Department of Justice's treatment of websites under the ADA, indicate that Defendant's website falls within the category of ‘services, ... privileges, advantages, or accommodations of' a restaurant, which is a place of public accommodation under the ADA. (42 U.S.C. §§ 12181(7)(B); 42 U.S.C. § 12182(a).)”

         The trial court found Thurston had proven the website was inaccessible to blind users: “Plaintiff has provided evidence that she encountered barriers to Defendant's website which have prevented her from using its features. (Thurston Decl., ¶¶ 3-7.) Specifically, Thurston contends she visited the website on February 20, 2017, and four to five times thereafter, (Thurston Decl. ¶ 3.) she was unable to read the menu because it was ‘offered in an unreadable graphic image' and the link to the pdf version of the menu resulted in an error message. (Thurston Decl., ¶¶ 4-5.) Plaintiff also contends that she was unable to make a reservation or determine whether she could make an online reservation. (Thurston Decl., ¶ 6.)” The court further found: “Defendant fails to provide any evidence in Opposition to refute Plaintiff's showing that the website was inaccessible to Plaintiff on February 20, 2017.”

         The trial court rejected appellant's claim that there was a triable issue whether its website provided appropriate auxiliary aids. The court noted appellant provided an email address and a phone number on its website. The court found “the provision of an email or phone number does not provide full and equal enjoyment of Defendant's website (42 U.S.C. § 12182(a)), but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant's website as other sighted customers. Thus, the email and telephone options do not provide effective communication ‘in a timely manner' nor do they protect the independence of the visually impaired. (28 C.F.R. § 36.303(c)(ii).)”

         The trial court rejected appellant's contention that it could not be compelled to redesign its website to conform to voluntary Web Content Accessibility Guidelines (WCAG) promulgated by the WorldWide Web Consortium, a nongovernmental consortium. It also rejected appellant's characterization of the complaint as Thurston's attempt to equate a violation of the voluntary guidelines with a violation of the law. “While Plaintiff addresses the WCAG guidelines, the Complaint does not seek to hold Defendant liable for violating their provisions. Rather, the Complaint merely references the WCAG guidelines..., but does not expressly seek to hold Defendant liable for violating these guidelines. Rather, the Complaint seeks to prevent Defendant from violating the Unruh [Civil Rights] Act.... Plaintiff has established that Defendant's website was not accessible under the ADA. Defendant could have, but failed to, adduce evidence that its website was accessible within the standards imposed by the ADA on February 20, 2017 when Plaintiff accessed the website.”

         The trial court granted Thurston's motion for summary judgment, and denied appellant's separately filed cross-motion for summary judgment as moot. The court noted that “Defendant's constitutional arguments in its separate motion are not sufficient to demonstrate that it did not violate the ADA, and therefore we need not reach these issues.” The court also declined to apply the primary jurisdiction doctrine, which permits a court to dismiss a complaint pending resolution of an issue before an administrative agency with special competence. The court noted it was “ 'unknown when, if at all, the [Department of Justice (DOJ)] will issue regulatory standards addressing the ADA's standards governing website access.' ” The court further found “Plaintiff has established standing under the Unruh Act.”


         In an appeal from a grant of summary judgment, we “independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In performing our review, we view the evidence in the light most favorable to the losing party, and resolve any evidentiary doubts or ambiguities in its favor. (Ibid.)

         “We will affirm an order granting summary judgment or summary adjudication if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons.” (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.)

         Legal issues are reviewed de novo. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].) Similarly, constitutional issues are reviewed de novo. (State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67.)

         We review the grant of a permanent injunction for abuse of discretion. (Horsford v. Board of Trustees of Cal. State University (2005) 132 Cal.App.4th 359, 390.)

         I. Title III Applies to Appellant's Website.

         Title III of 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).)

         Discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C. § 12182(b)(2)(A)(iii).) DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).) “Auxiliary aids and services” includes “accessible electronic and information technology” and “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” (28 C.F.R. § 36.303(b)(2).) A screen reader is an auxiliary aid. (Ibid.)

         It is undisputed that appellant's physical location-the restaurant-is a place of public accommodation within the meaning of Title III. (42 U.S.C. § 12181(7)(B) [“a restaurant, bar, or other establishment serving food or drink” is a place of public accommodation].)

         In the absence of a controlling United States Supreme Court or California Supreme Court opinion, we may “make an independent determination of federal law.” (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-783.) Where the federal circuits are in conflict, the decisions of the Ninth Circuit are entitled to no greater weight than those of other circuits. (Ibid.)

         Among the United States Circuit Courts of Appeals, there is essentially a three-way split whether websites qualify as places of public accommodation within the meaning of Title III. The Third Circuit has excluded websites from coverage, holding “[t]he plain meaning of Title III is that a public accommodation is a place” and “public accommodation” does not “refer to non-physical access.” (Ford v. Schering-Plough Corp. (3rd Cir. 1998) 145 F.3d 601, 612, 614 (Ford).)

         The intermediate position holds that websites are covered by the ADA only if there is a nexus between the website and access to a physical place of public accommodation. (Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905-906 (Domino's).) The nexus courts explain that discrimination occurring “offsite” violates the ADA if it prevents disabled individuals from enjoying services a defendant offers from a physical place of public accommodation. Variations on the theme of websites having a nexus to a physical space have been expressed by the Sixth and Eleventh Circuits. (Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006, 1011 & fn. 3; Rendon v. Valleycrest Productions, Ltd. (11th Cir. 2002) 294 F.3d 1279, 1284-1285 & fn. 8 (Rendon).) Thus, in Rendon, for example, potential contestants for the television show “Who Wants To Be A Millionaire?” applied to be selected for the show by using an automated call-in system. Deaf and mobility-impaired applicants could not use the call-in system. The Eleventh Circuit found the plaintiff had stated a valid claim that that the inaccessible call-in system deprived the disabled applicants from enjoying the ...

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