Carmen John Perri v. Mariani Inn, et., et al. CASE NO. 19CV353222
DATE: 6 February 2020 TIME: 9:00 LINE NUMBER: 3
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.882.2296 and the opposing party no later than 4:00 PM on 27 August 2020. Please specify the issue to be contested when calling the Court and counsel.

ORDER ON DEFENDANT MARIANI’S INN AND RESTAURANT, INC.’S DEMURRER

TO PLAINTIFF CARMEN JOHN PERRI’S COMPLAINT

I. Factual and Procedural Background

Plaintiff Carmen John Perri (“Plaintiff”) is mobility impaired and requires information about the accessibility of hotels and hotel rooms to make reservations. (Complaint, ¶¶1 and 14.) As a result of Plaintiff’s disability, Plaintiff requires an accessible room to fully and equally utilize the goods, services, and facilities provided by defendant, Mariani’s Inn and Restaurant, Inc. (sued as Mariani Inn and Restaurant, Inc.; hereafter, “Defendant”). (Complaint, ¶15.)

Defendant maintains its reservation service, including that offered to the public on its website, www.marianisinn.com (“Website”), in such a way that it contains access barriers preventing Plaintiff, and other mobility-impaired individuals, from gaining full and equal access to the reservations service offered by Defendant. (Complaint, ¶2.)

On or about 28 July 2019, Plaintiff visited the Website, to view the accessible features in the hotel and guest rooms of the Defendant’s hotel. (Complaint, ¶22.) Plaintiff desired to visit a hotel in the Santa Clara area which he planned to visit on 6 – 7 September 2019. (Complaint, ¶23.) The information required by Plaintiff was unavailable so Plaintiff could not make a reservation for an accessible room or suite using the Website in the same manner as individuals who do not need an accessible room. (Complaint, ¶24.) Plaintiff was unable to independently identify the material accessible features of the hotel and guest rooms of the Subject Property owned and operated by Defendant. (Complaint, ¶25.) The Website lacks information required by Plaintiff to fully and equally access the reservation services of the Website as a result of his disability. (Complaint, ¶28.)

On 13 August 2019, Plaintiff filed a complaint against Defendant asserting causes of action for:

(1) Violation of the Unruh Civil Rights Act, California Civil Code §51 et seq.; and
(2)
(3) Declaratory Relief
(4)

On 25 November 2019, Defendant filed the motion now before the court, a demurrer to Plaintiff’s complaint.

II. Defendant’s demurrer to the first cause of action in Plaintiff’s complaint is OVERRULED.

The Unruh Civil Rights Act states that “[a]ll persons within the jurisdiction of this state are free and equal and no matter what their sex, race, color…[or] 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 may enforce his or her rights under the Unruh Civil Rights Act by bringing an action for damages. (Civ. Code, §52, subd. (a); see also CACI, No. 3020.)

Specifically, Civil Code section 51, subdivision (f) states, “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” Plaintiff’s first cause of action expressly alleges, “Defendant’s discriminatory conduct alleged herein includes, inter alia, the violation of the rights of persons with disabilities set forth in Title III of the ADA and therefore also violates the Unruh Act. Civ. Code § 51(f).” (Complaint, ¶36.)

Plaintiff contends Defendant’s reservation system violates 28 C.F.R. § 36.302(e) which states:

a place of lodging shall, with respect to reservations made by any means … (i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms; (ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservation service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs; (iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type; (iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and (v) Guarantee that the specific accessible guest room reserved through its reservation service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

To succeed on a discrimination claim under Title III of the ADA, a plaintiff must show that

“(1) he is disabled within the meaning of the ADA;

(2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and

(3) the plaintiff was denied public accommodation by the defendant because of his disability.” (Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2011).)

In demurring, Defendant argues initially that Plaintiff has not sufficiently stated a cause of action because Plaintiff has not identified how the 24-hour phone system Defendant made available to potential customers violated the ADA. Defendant relies upon language in a footnote of Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 904, fn. 4 (Robles), as support for its position. The full footnote reads as follows:

Only after Robles filed this suit, Domino’s website and app began displaying a telephone number that customers using screen-reading software could dial to receive assistance. The district court noted that Robles had “failed to articulate why [Domino’s] provision of a telephone hotline for the visually impaired … does not fall within the range of permissible options afforded under the ADA.” However, the district court did not reach whether a genuine issue of material fact existed as to the telephone hotline’s compliance with the ADA, including whether the hotline guaranteed full and equal enjoyment and “protect[ed] the privacy and independence of the individual with a disability.” 28 C.F.R. § 36.303(c)(1)(ii) (2017). We believe that the mere presence of the phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.

Applicability of Robles to the instant case aside, the court rejects Defendant’s argument for a more fundamental reason. Defendant’s argument relies on extrinsic evidence. Specifically, Defendant relies upon factual assertions contained in the Declaration of Matthew W. Cunningham in Support of Defendant’s Demurrer to Plaintiff Carmen John Perri’s Complaint—i.e., “As early as June 2019, all prospective customers had this 24-hour option of contacting Mariani’s through the phone number listed online, speaking to a staff member, asking questions about availability, obtaining information about room options, and making reservations for the few remaining rooms. All Mariani’s reservation staff persons had ready access to information about the facility’s accessible guestrooms and suites, including specific information on types and sizes of accessible showers, bathtubs and other features such as, tub seats.”

“A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleadings that are judicially noticeable. [¶] No other extrinsic evidence can be considered.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:8, p. 7(I)-7 citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318, et al.) “The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) Since Defendant’s initial argument relies on facts outside the complaint, the demurrer fails.

Defendant argues next that Plaintiff’s complaint is subject to demurrer because it is uncertain. “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:85, pp. 7(I)-41 to 7(I)-42 citing Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Defendant contends the Plaintiff’s complaint is vague and ambiguous because it appears to attribute liability under the California Disabled Persons Act (“DPA”) using terms of art found in the DPA, but Plaintiff’s complaint never actually enumerates the specific statutory provisions of the DPA. Some of the confusion is clarified by Plaintiff’s prayer for relief which explicitly states, “Note: Plaintiff is not invoking section 55 of the California Civil Code and is not seeking injunctive relief under the Disabled Persons Act.” The court is of the opinion that the complaint is not so uncertain that Defendant cannot reasonably determine what issues must be admitted or denied and that any ambiguity can be clarified during discovery.

Third and finally, Defendant demurs to Plaintiff’s complaint on the ground that Plaintiff lacks standing. Defendant contends Plaintiff lacks standing based on the allegation found at paragraph 17 of the complaint where Plaintiff alleges, “Plaintiff is a tester in this litigation and a consumer who wishes to access Defendant’s hotel reservation service and enjoy Defendant’s place of lodging. Plaintiff is being deterred from reserving a room with Defendant and from access to the services offered at Defendant’s hotel on particular occasions, but intends to return to the Website for the dual purpose of availing himself of the services offered to the public and to ensure that Defendant ceases evading its responsibilities under federal and state law.”

As part of establishing a federal court’s subject matter jurisdiction, individuals must establish Article III standing to sue. (Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011).) Standing requires the plaintiff to establish three elements: (1) an injury-in fact that is “concrete and particularized” and “actual or imminent,” (2) the injury must be “fairly … trace[able] to the challenged action of the defendant,” and (3) it must be “likely” that a favorable decision will redress the injury. (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).) In the ADA context, “[o]nce an individual has encountered … alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts.” (Chapman, 631 F.3d at 947 (quoting Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008)).)

Only injunctive relief is available under Title III of the ADA. (Luu v. Ramparts, Inc., 926 F. Supp. 2d 1178, 1182 (D. Nev. 2013).) To establish standing for injunctive relief, a plaintiff must also demonstrate, in addition to the above, that there is a “real and immediate threat of future injury by the defendant.” (Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108, 1111 (D. Minn. 2014) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)).)

The Ninth Circuit has held that there are two ways in which an ADA plaintiff may establish standing to sue for injunctive relief: the plaintiff can either demonstrate “deterrence” or “injury-in-fact coupled with an intent to return to a noncompliant facility.” (Chapman, 631 F.3d at 944.) Standing to sue under the ADA does not require the plaintiff to engage in “futile gestures” of “attempting to gain access” to inaccessible facilities in order to show actual injury. (Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002).)

Although Defendant, in demurring, recognizes that standing can be demonstrated through either deterrence or an injury-in-fact coupled with an intent to return, Defendant argues only that there has been no actual injury suffered by Plaintiff as a tester. Defendant’s argument ignores standing based on allegations of deterrence. As Plaintiff points out in opposition, the issue of standing has been resolved by the California Supreme Court in White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023, where the court wrote:

Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services, and then leaves the website without entering into an agreement with the service provider? (See White v. Square, Inc. (9th Cir. 2018) 891 F.3d 1174, 1175; Cal. Rules of Court, rule 8.548, (a) & (f)(5).)

The answer is yes. When a plaintiff has visited a business’s website with intent to use its services and alleges that the business’s terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act. In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent **278 to presenting oneself for services at a brick-and-mortar store. Although mere awareness of a business’s discriminatory policy or practice is not enough for standing under the Act, entering into an agreement with the business is not required.

“Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, and so he possesses standing under Article III….” (Chapman, 631 F.3d at 947.) Defendant’s focus is too narrow and ignores the allegations found at paragraphs 23 – 24 where Plaintiff alleges, in relevant part, “Plaintiff desired to visit a hotel in the Santa Clara area, which he planned to visit on September 6, 2019 through September 7, 2019. … The information required by Plaintiff was unavailable so Plaintiff could not make a reservation for an accessible room or suite using the Website in the same manner as individuals who do not need accessible rooms.” In other words, Plaintiff personally encountered an alleged ADA violation and it deterred his patronage. This is a sufficient allegation of injury in fact. (See also Complaint, ¶¶17 – 18—“Plaintiff is being deterred from reserving a room with Defendant and from access to the services offered at Defendant’s hotel on particular occasions, but intends to return to the Website for the dual purpose of availing himself of the services offered to the public and to ensure that Defendant ceases evading its responsibilities under federal and state law. [¶] The access barriers Plaintiff encountered on Defendant’s reservation system and Website have deterred Plaintiff from patronizing the Defendant’s hotel.”)

III. Order.

For the reasons stated above, Defendant’s demurrer to the first and second causes of action in Plaintiff’s complaint on the ground the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED. Defendant’s answer will be due in 20 days from the date of service of this notice of ruling.

_______________¬¬¬____________

DATED: ______________________¬¬¬________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara