Case Name: Roy Rios v. Star One Credit Union
Case No.: 17CV316487

I. Background

Plaintiff Roy Rios (“Plaintiff”) is blind and uses a screen reader to access websites on the internet. He alleges the website of defendant Star One Credit Union (“Defendant”) is inaccessible to him because there are empty links, redundant links, and missing form labels that prevent the website from being properly rendered by his screen reader. Plaintiff is a member of Orange County’s Credit Union, a credit union in a shared branch network with Defendant, and was unable to find an ATM with Defendant’s locations webpage because of defects in its design. In the first amended complaint (“FAC”), Plaintiff asserts a single cause of action against Defendant for violation of California’s Unruh Civil Rights Act.

Currently before the Court is Defendant’s demurrer to the FAC on the ground of failure to state facts sufficient to constitute a cause of action, which is accompanied by a request for judicial notice. Additionally, amicus curiae California Credit Union League filed a memorandum of points and authorities in support. Plaintiff opposes the demurrer and separately filed written “objections” to Defendant’s memorandum of points and authorities.

II. Request for Judicial Notice

Defendant first requests judicial notice of court records. When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal quotation marks and citation omitted].) A court may take judicial notice of relevant court records. (Evid. Code, § 452, subd. (d).) Here, Defendant requests judicial notice of court records, including complaints from other actions filed by Plaintiff. Defendant appears to request judicial notice of these records solely for the purpose of establishing Plaintiff is a test or serial litigant. Although Defendant devotes a sizeable portion of its memorandum of points and authorities to this fact, it is wholly immaterial to whether a claim has been stated. (See generally D’Lil v. Best Western Encina Lodge & Suites (9th Cir. 2008) 583 F.3d 1031, 1040 [discussing serial accessibility litigants]; see also Wilson v. Murillo (2008) 163 Cal.App.4th 1124, 1128, fn. 3 [litigant’s history not material to motion for summary judgment in accessibility suit].) Thus, the court records are not relevant and, as such, are not proper subjects of judicial notice.

Defendant also requests judicial notice of the contents of two webpages pursuant to Evidence Code section 452, subdivision (h), which authorizes judicial notice of: “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” A court may not rely on the mere fact information is published on a website for the proposition that the information is not reasonably subject to dispute. (Huitt v. Southern Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1604, fn. 10.) Where a fact and its source are not actually disputed, however, judicial notice is proper even if the source of the information is a website. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760-61.) Here, Defendant requests judicial notice of its field of membership and that of Plaintiff’s credit union as reflected on their websites, which websites are listed in the FAC. The credit unions’ fields of membership are not reasonably subject to dispute and can be determined from sources of reasonably indisputable accuracy. Consequently, they are proper subjects of judicial notice.

In conclusion, Defendant’s request for judicial notice is GRANTED with respect to the fields of membership on the credit unions’ websites and DENIED with respect to the court records.

III. Objections

Plaintiff filed written objections to portions of Defendant’s memorandum of points and authorities on the grounds, among others, of relevance and lack of foundation. Objections are the means for challenging evidence. (See generally People v. Valdez (2012) 55 Cal.4th 82, 130.) But statements set forth in a memorandum of points and authorities are not evidence. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) Accordingly, Plaintiff’s objections are not well-taken and will not be considered by the Court.

IV. Demurrer

Defendant asserts the demurrer is sustainable because Plaintiff lacks standing to assert his claim. In light of the statements and authority presented in support, it is necessary to first clarify the definition of standing as that concept exists in state courts as compared to federal courts.

The term “standing” is often used as shorthand for a precondition to seeking relief in federal court rooted in Article III of the United State Constitution. (The Rossdale Group, LLC v. Walton (“Rossdale”) (2017) 12 Cal.App.5th 936, 944.) “Article III of the federal Constitution imposes a ‘case-or-controversy limitation on federal court jurisdiction,’ requiring [a plaintiff to allege] ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.’” (Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1117, fn. 13, quoting Gollust v. Mendell (1991) 501 U.S. 115, 125-26.) “‘There is no similar requirement in [California’s] state Constitution.’” (Rossdale, supra, 12 Cal.App.5th at p. 944, quoting Grosset, supra, 42 Cal.4th at p. 1117, fn. 13 and citing Cal. Const., art. VI, § 10.) Thus, there is no requirement that a plaintiff establish the existence of a case or controversy, as that term has been defined by federal courts, to seek relief in state court. (Ibid.)

In California courts, the term standing is more broadly defined as “the right to relief in court.” (Rossdale, supra, 12 Cal.App.5th at pp. 944-45 [internal quotation marks and citation omitted].) “In general terms, in order to have standing, the plaintiff must be able to allege injury — that is, some ‘invasion of the plaintiff’s legally protected interests.’ [Citation.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175.)

When a plaintiff asserts a statutory claim, his or her right to relief or “standing” depends upon the statute and “may vary according to the intent of the Legislature and the purpose of the enactment.” (Angelucci, supra, 41 Cal.4th at p. 175.) For example, California’s Unfair Competition Law authorizes relief only when a plaintiff has suffered an injury-in-fact as defined for purposes of Article III standing. (Kwikset Corp. v. Super. Ct. (2011) 51 Cal.4th 310, 322-24.) Thus, that particular law explicitly incorporates the federal definition of standing. (Ibid.) But here, the Unruh Civil Rights Act has its own distinct, statutory definition of standing. (Angelucci, supra, 41 Cal.4th at p. 175.) It is this statutory definition of standing as interpreted by California courts that controls; Article III standing is not implicated as a general matter or by explicit incorporation in the statute.

The Unruh Civil Rights Act (the “Act”) states: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status 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).) In addition to this general mandate, the Act provides that a violation of an individual’s rights under the federal Americans with Disabilities Act (the “ADA”) constitutes a violation of the Act. (Civ. Code, § 51, subd. (f).)

Turning to the issue of standing, the California Supreme Court has explained, “[i]n essence, an individual plaintiff has standing under the Act if he or she has been the victim of the defendant’s discriminatory act.” (Angelucci, supra, 41 Cal.4th at p. 175.) The central argument presented by Defendant, as well as by amicus curiae, is that Plaintiff does not adequately allege he was the victim of discrimination because he does not allege he is a member of the credit union and, in fact, is not eligible for membership. Defendant’s presentation of this argument is problematic because its analysis lacks clarity and it essentially just insists membership is a requirement for standing without explaining how such a requirement is supported by applicable law. Generally, a “trial court [has] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) With that said, this case appears to present an issue of first impression. And so, despite this lack of clarity, which may be attributable in part to the novelty of the issue presented, the Court addresses Defendant’s argument below after summarizing the applicable law.

A majority of the cases interpreting the statutory standing requirement of the Act address when a plaintiff may sue for the assessment of discriminatory fees for admission to or use of public accommodations. (See Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 418-20 [compiling cases].) As reflected in the recent order from the United States Court of Appeals for the Ninth Circuit certifying questions to the California Supreme Court, “it is not clear how the cases apply in the absence of brick and mortar to internet-based services.” (White v. Square, Inc. (9th Cir. 2018) 891 F.3d 1174, 1181.) Although the Fourth District considered in Surrey whether a plaintiff had standing to sue an online dating service that charged men a higher fee than women (Surrey, supra, 168 Cal.App.4th at pp. 416-17), no California court has considered precisely the same accessible design issues presented here. (See White, supra, 891 F.3d at p. 1181.)

Defendant first cites Surrey. Although it generally appears to believe this case supports its position on standing, it does not explain why. Surrey is not analogous and, thus, is not applicable here. In Surrey, “the critical issue [was] whether someone who presents him or herself to a business with the intent of purchasing its services or products, but becomes aware of that business’s practice of charging different amounts for such services or products based on gender and thereafter does not purchase those services or products, is aggrieved by that practice so as to have standing to sue for violations of the Unruh Civil Rights Act [ ].” (Surrey, supra, 168 Cal.App.4th at p. 416.) In determining such a person lacked statutory standing, the Fourth District adopted “a bright-line rule that a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices relating thereto.” (Ibid.) But Surrey is not analogous and, thus, does not supply the rule of decision here because Plaintiff does not allege Defendant charges blind individuals more for banking services.

Additionally, Surrey has not been adopted by other California courts since. In fact, the Second District recently declined to adopt the Surrey test in Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118, which case is noticeably absent from Defendant’s memorandum of points and authorities. In Osborne, the Second District concluded a paraplegic individual who used a service dog had standing to sue a hotel that refused to rent him a room unless he paid a nonrefundable cleaning fee of $300 relating to the dog. (Id. at pp. 1121-22.) The appellate court concluded the plaintiff had standing, despite not renting a room in light of the fee, because he personally experienced discrimination at the hotel. (Id. at p. 1135.) In reaching this conclusion and declining to adopt the bright-line rule set forth in Surrey, the Second District explained that the plaintiff had effectively been “refused services, thereby making a purchase impossible.” (Id. at p. 1134.) Here, as in Osborne, Plaintiff is essentially alleging he could not even access services in the first place because of the defects in Defendant’s website. (See also White, supra, 891 F.3d at p. 1181 [comparing Surrey and Osborne].) Thus, like the Second District in Osborne, the Court declines to adopt the bright-line test set forth in Surrey. (See, e.g., Rios v. New York & Company, Inc. (C.D.Cal. Nov. 16, 2017, No. 2:17-CV-04676-ODW) 2017 WL 5564530 [citing Osborne and declining to extend Surrey in website accessibility suit].)

Next, Defendant asserts Reycraft v. Lee (2009) 177 Cal.App.4th 1211 is analogous to the case at bench. As a preliminary matter, the Fourth District considered in Reycraft whether a plaintiff had standing to sue under a different law, the California Disabled Persons Act (the “DPA”). (Id. at pp. 1217-19.) The appellate court observed the DPA is narrower than the Unruh Civil Rights Act, but that the two laws overlap in many ways because both prohibit discrimination against disabled individuals. (Id. at p. 1220 & p. 1227, fn. 6.) The Fourth District considered some cases addressing statutory standing under the Unruh Civil Rights Act, such as Surrey and Angelucci, to determine whether the plaintiff had standing under the DPA. (Id. at pp. 1220-21.) Consequently, despite concerning standing under a different statute, Reycraft is not entirely immaterial here.

Turning to the facts of Reycraft, the plaintiff claimed she experienced discrimination based on her physical disability while visiting her sister-in-law at a trailer park. (Reycraft, supra, 177 Cal.App.4th at pp. 1224-25.) The trailer park was not open to the public, but tenants’ guests could use the premises, including the pool, if they registered and paid a ten dollar fee. (Ibid.) The plaintiff was partially paralyzed such that she had to use crutches and a walker, and she claimed she was prevented from using the pool due to the absence of a lift or other assistive device. (Ibid.) Although the plaintiff asserted the architectural defects prevented her from using the pool, the stipulated evidence presented during the bench trial reflected she never intended to register as a guest and pay the guest fee. (Ibid.) The Fourth District determined this evidence supported the trial court’s finding that she lacked statutory standing because it showed she did not suffer discrimination upon “actually present[ing] herself to the business, as any other customer or guest would do, with the intent of paying the guest fee in order to gain admittance to the Park and/or to use the pool.” (Ibid.)

Defendant asserts Reycraft is analogous to the case at bench because, just as the plaintiff in that case could not have used the pool without registering, Plaintiff could not have used its services without becoming a member. But the Fourth District did not merely rely on the plaintiff’s failure to register and pay the guest fee; rather, it based its conclusion on the fact that she affirmatively admitted she never had any intention of doing so. (Reycraft, supra, 177 Cal.App.4th at pp. 1224-25.) Here, Plaintiff does not allege he observed discrimination in the abstract and without any intent to patronize Defendant’s business by, for example, using his browser to inspect the code to see if it complied with standards for accessible design. Rather, Plaintiff alleges he tried to use Defendant’s website with the intent and purpose of utilizing its services and was unable to do so because of its inaccessible design. (See FAC, ¶¶ 5-6.) Consequently, Defendant’s analogy is inapt.

Defendant’s reliance on Reycraft is also problematic because it does not otherwise articulate what the principle or rule announced in Reycraft is and clearly explain how Plaintiff’s allegations fall short based thereupon. Instead, after stating Reycraft is analogous, Defendant reiterates its position that Plaintiff must be a member of the credit union.

In Reycraft, the Fourth District concluded that to establish standing under the DPA, a plaintiff “must show he or she actually presented himself or herself to a business or public place with the intent of purchasing its products or utilizing its services in the manner in which those products and/or services are typically offered to the public and was actually denied equal access on a particular occasion.” (Reycraft, supra, 177 Cal.App.4th at p. 1224.) Thus, although not especially clear, Defendant presumably intended to argue that its services are offered to members, not to the public at large, such that Plaintiff must allege membership to show he presented himself with the intent of purchasing products or services in the manner in which they are typically offered, namely to members only, and was actually denied equal access. There are a number of problems with this argument.

First, even assuming Reycraft applies, Defendant’s argument does not actually appear to be based on the standard announced therein. Under Reycraft, a plaintiff need only show he or she had the intent of utilizing services in the manner in which those services are offered. (Reycraft, supra, 177 Cal.App.4th at p. 1224.) Put differently, an honest attempt to patronize a business, even if ultimately unsuccessful, is all that is required. Thus, arguably, as long as an individual presented himself or herself to the credit union with the intent of utilizing the credit union’s services, either as an existing member or as a prospective member, he or she has adequately attempted to patronize the credit union for purposes of statutory standing irrespective of his or her ultimate success. There is no basis for concluding that only members, as compared to prospective members, could honestly intend to use the credit union’s services. And so the Court is not persuaded Reycraft supports Defendant’s argument that membership in the credit union is a requirement for statutory standing.

In arguing membership is required, Defendant also takes the position that Plaintiff is not eligible for membership. Although Defendant simply asserts Plaintiff is ineligible without explaining how this is significant based on Reycraft, or any other case for that matter, the Court assumes it intended to assert Plaintiff, in fact, lacked an honest intent to join and use the credit union because he is not eligible for membership.

Defendant’s assertion is wholly unfounded. It suggests it would be impossible for an individual to come within its field of membership and the field of membership of Orange County’s Credit Union. This point is not supported by the credit unions’ respective fields of membership. One way to qualify for membership with these credit unions is to live, work, or attend school in the county where the credit union is located. (Request for Judicial Notice (“RJN”), Exs. D, F.) There is no basis for concluding a person cannot live and work or attend school in different counties. Additionally, there are many other ways to qualify for membership, such as through affiliation with particular employers or with a relative that is a member. (RJN, Exs. D, F.) It is not apparent how, in light of these many qualifying factors, Defendant concludes an individual could not qualify for membership with both credit unions. To the extent Defendant relies exclusively on the fields of membership that are subject to judicial notice, it appears to be relying on an incomplete or inaccurate interpretation thereof. Otherwise, Defendant could only conceivably be basing its argument on facts that are neither subject to judicial notice nor apparent from the pleading. Thus, there is no basis for affirmatively concluding Plaintiff is ineligible for membership.

The second problem with Defendant’s membership argument is that it does not substantiate the constituent premises thereof. While Defendant states only members are eligible for its services, it does not define what exactly those services are as necessary to demonstrate only members are eligible for the services at issue here. For example, in Defendant’s memorandum of points and authorities, it does not attempt to refute Plaintiff’s theory that providing a website is, in and of itself, a service. (See FAC, ¶ 5.)

Even assuming services are limited to financial transactions at brick and mortar locations, Defendant does not demonstrate only members may utilize those services. For example, it cites in passing Financial Code section 14800.1, entitled “permitted services,” which states a credit union may sell and cash checks or other transfer instruments for natural persons within the field of membership. To the extent Defendant is relying on this statute for the purpose of establishing a limitation on the services it may provide to nonmembers, including members of other credit unions in the shared branch network, the statute does not clearly support its position.

Significantly, Plaintiff alleges he is a member of a different credit union in Orange County that participates, along with Defendant, in a cooperative network that allows customers to bank at branches and ATMs maintained by other credit unions participating in this network. (FAC, ¶ 6.) Plaintiff alleges he “was unable to access and use the facilities, services, accommodations, privileges[,] and advantages of Defendant offered through shared branching due to accessibility barriers contained throughout its website.” (FAC, ¶ 6.) These allegations undercut Defendant’s sweeping statement that only members are entitled to use its services.

Indeed, Defendant does not dispute it participates in shared branching with Orange County’s Credit Union or argue that the particular allegations above, if accepted as true, are insufficient to establish statutory standing based on applicable California law. Instead, Defendant challenges the specificity of these allegations and speculates that they are untrue. Defendant states Plaintiff does not plead he was a member of Orange County’s Credit Union and, thus, eligible for shared branching at the time he accessed its website. This statement is not accurate in light of the allegations in paragraph 6 of the FAC. It appears Defendant’s position is, perhaps, that Plaintiff must plead the specific dates he joined the credit union and accessed the website. But it does not cite and the Court is unaware of any legal authority supporting the proposition that a plaintiff must plead specific dates to state a claim. In actuality, although a demurrer is sustainable when the dates affirmatively pleaded reflect no cognizable claim has been stated, a demurrer is not sustainable when specific dates are not included because they need not be pleaded. (United Western Medical Centers v. Super. Ct. (1996) 42 Cal.App.4th 500, 505.)

To summarize, Defendant’s categorical assertion that only members can use its services is unsubstantiated, and it does not otherwise demonstrate the specific services pleaded in the FAC are only available to members. Furthermore, Defendant does not demonstrate that, based on Reycraft, only members are capable of establishing statutory standing by showing they presented themselves with the intent of utilizing its services in the manner in which they would normally be offered.

If the Court concluded a plaintiff lacks statutory standing unless he or she is a member of a credit union, it would effectively preclude prospective members who were prevented from applying and becoming members or nonmembers seeking to bank at a shared branch from justifiably seeking relief under the Act. This additional reason persuades the Court that membership should not be adopted as the standard for statutory standing in an action against a credit union under the Act.

Defendant also generically asserts “[a]lthough the California courts have not yet resolved the question of whether an individual who is ineligible to join a credit union has standing, at least five recent federal decisions have found that [such] a plaintiff. . . lacks standing.” (Mem. of Pts. & Auth. at p. 8:9-13.) As reflected above, there is no basis for concluding Plaintiff is ineligible for membership. Additionally, the decisions relied upon by Defendant from federal courts in Virginia concern Article III standing, not statutory standing under the Act. (See, e.g., Carroll v. ABNB Fed. Credit Union (E.D.Va. Mar. 5, 2018, No. 2:17-CV-521) 2018 WL 1180317.) Article III standing is not equivalent to statutory standing under the Act, and so Defendant’s reliance on these cases is entirely misplaced. (See Reycraft, supra, 177 Cal.App.4th at p. 1217.)

Next, Defendant argues there is no causal link between the purported defects in the design of its website and Plaintiff’s inability to locate an ATM. This argument is not supported by the allegations in the pleading. (See FAC, ¶ 6.) Furthermore, Defendant cites no authority to support this argument, and it is not obviously supported by the language of the Act or the cases discussed above. Consequently, the Court deems this argument to be without foundation and does not discuss it any further. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.)

Defendant also asserts it owes no legal duty to Rios. The existence of a legal duty is an element of a negligence claim (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526), which is not the claim asserted here. Thus, it is not especially clear how Defendant’s assertion supports the conclusion that Plaintiff lacks standing or has not otherwise stated a claim under the Act. Defendant does not cite any legal authority to support or illuminate its position. Accordingly, it is deemed to be without foundation and will not be discussed any further. (See Dougherty, supra, 138 Cal.App.3d at p. 282.)

The final argument presented in Defendant’s memorandum of points and authorities is that Plaintiff must allege he could not have located an ATM through other means. As a preliminary matter, it is unclear whether Defendant is advancing this argument to demonstrate Plaintiff lacks standing, which it identifies as the sole basis for its demurrer, or for the purpose of establishing Plaintiff does not adequately plead a claim under the Act for some other reason. The nature and significance of Defendant’s argument are not especially clear because it does not cite any case demonstrating this is a pleading requirement for purposes of statutory standing or stating a claim under the Act more generally. Although this is a sufficient reason for concluding Defendant’s argument is unsubstantiated, the Court observes there are other problems with this argument.

Defendant relies on a notice of proposed rulemaking reflecting the United States Department of Justice considered revising regulations implementing Titles II and III of the ADA for the proposition that it may comply with the ADA so long as it provides a staffed telephone line or other means for individuals to access the information on its website. (See Advanced Notice of Proposed Rulemaking, 75 Fed.Reg. 43460-01 (July 26, 2010).) But by definition, the document relied upon by Defendant is merely a proposal and not a final regulation. (See generally Hall v. U.S. E.P.A. (9th Cir. 2001) 273 F.3d 1146, 1163 [discussing rulemaking process and Administrative Procedures Act].) Accordingly, Defendant’s reliance on the proposal to establish the standard for compliance with the ADA is misplaced. Furthermore, its follow-up statement that “the most obvious and readily available means of locating a participating credit union ATM would be through a member’s own credit union. . . ” (Mem. of Pts. & Auth. at p. 14:14-15) is a bare statement of opinion that is not pertinent to any issue before the Court.

In summary, Defendant does not demonstrate Plaintiff’s claim is defective because he does not allege there was no other way to access the information on the website.

Based on the foregoing, the Court is not persuaded that Plaintiff fails to state a claim because he lacks statutory standing to sue under the Act. The Court concludes the standard for statutory standing is that announced by the Second District in Osborne, which opinion is supported by a detailed evaluation of other appellate decisions, the legislative history of the Act, and the practical implications of adopting a particular standard. (See Osborne, supra, 1 Cal.App.5th at pp. 1133-35.) To plead facts showing statutory standing, a plaintiff must simply allege he or she personally suffered discrimination, which Plaintiff has done here. (See ibid.)

For the reasons set forth above, Defendant’s demurrer is OVERRULED.