1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MEGAN D. ERASMUS,
11 Plaintiff, No. 2:21-cv-01149-TLN-KJN v. 12
13 ANDREA TSE M.D., INC., ORDER
14 Defendant.
15 16 This matter is before the Court on Defendant Andrea Tse M.D., Inc.’s (“Defendant”) 17 Motion to Dismiss. (ECF No. 4.) Plaintiff Megan Erasmus (“Plaintiff”) opposed the motion. 18 (ECF No. 7.) Defendant replied. (ECF No. 9.) For the reasons set forth below, the Court 19 DENIES Defendant’s Motion to Dismiss. (ECF No. 4.) 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 The instant case arises out of Plaintiff’s alleged inability to access videos on Defendant’s 3 website. Plaintiff is completely deaf and relies entirely on closed captioning to consume audio 4 content such as movies, videos, or tutorials. (ECF No. 1 at 1.) Defendant owns or operates 5 Folsom Plastic Surgery Optimal U Aesthetic Skin and Wellness Center (the “Clinic”) and owned 6 or operated its website, http://www.optimaluclinic.com/ (the “Website”). (Id. at 2.) Plaintiff 7 asserts the Website is a nexus between Defendant’s customers and the privileges, goods, or 8 services Defendant offers. (Id. at 3.) Plaintiff alleges Defendant “offers videos on its Website to 9 induce customers to purchase its goods and to provide ideas on how to best use them.” (Id.) 10 Plaintiff visited the Website in June 2021 as a prospective customer to look for information about 11 the Clinic and its services. (Id. at 3–4.) Plaintiff discovered the video content on the website 12 lacked closed captioning which made her unable to fully understand and consume the video 13 contents. (Id. at 3–4.) 14 Plaintiff further alleges she experienced difficulty and discomfort in attempting to view 15 videos for cosmetic procedures.2 (Id. at 4.) As a result of this inaccessibility, she was “unable to 16 understand the content and was deterred from further use of the Website.” (Id.) Plaintiff alleges 17 “[d]espite multiple attempts to access the Website using [her] computer, Plaintiff has been denied 18 the full use and enjoyment of the facilities, goods and services offered by Defendant[] as a result 19 of the accessibility barriers.” (Id.) Further, Plaintiff claims she “is a tester in this litigation and 20 seeks future compliance with all federal and state laws . . . [and she] will return to the Website to 21 avail herself of its goods and/or services and to determine compliance with the disability access 22 laws once it is represented to her that [Defendant] and [the] Website are accessible.” (Id. at 4–5.) 23 On June 29, 2021, Plaintiff filed a Complaint alleging Defendant violated Title III of the 24 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12188, and the California Unruh 25
1 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Complaint. 26 (ECF No. 1.) 27 2 Plaintiff references the cosmetic procedure as “Forever Bare BBL” but does not define the 28 term. (ECF No. 1 at 4.) 1 Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51–53. (Id. at 6–7.) On September 21, 2021, 2 Defendant moved to dismiss Plaintiff’s claims pursuant to Federal Rules of Civil Procedure 3 (“Rule” or “Rules”) 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to 4 state a claim upon which relief can be granted. (ECF No. 4-1.) Plaintiff subsequently filed an 5 opposition on October 13, 2021. (ECF No. 7.) Defendant filed a reply on October 21, 2021. 6 (ECF No. 9.) 7 II. STANDARD OF LAW 8 A. Rule 12(b)(1) 9 A motion under Rule 12(b)(1) challenges a federal court’s jurisdiction to decide claims 10 alleged in the complaint. Fed. R. Civ. P. 12(b)(1); see also id. at 12(h)(3) (“If the court 11 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 12 action.”). A court considering a motion to dismiss for lack of subject matter jurisdiction is not 13 restricted to the face of the complaint and may review any evidence to resolve disputes 14 concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 15 1988); see also Thornhill Pub. Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 16 1979) (in a factual attack on subject matter jurisdiction, “[n]o presumptive truthfulness attaches to 17 plaintiff’s allegations.”). “Once challenged, the party asserting subject matter jurisdiction has the 18 burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) 19 (quoting Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n.1 (9th Cir. 2007)). 20 If a plaintiff lacks standing under Article III of the United States Constitution, then the 21 Court lacks subject matter jurisdiction and the case must be dismissed. See Steel Co. v. Citizens 22 for a Better Env’t, 523 U.S. 83, 102–04 (1998). Similarly, “if none of the named plaintiffs 23 purporting to represent a class establishes the requisite case or controversy with the defendants, 24 none may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 25 414 U.S. 488, 494 (1974). To satisfy Article III standing, a plaintiff must allege: (1) an injury-in- 26 fact that is concrete and particularized, as well as actual or imminent, not conjectural or 27 hypothetical; (2) that is fairly traceable to the challenged action of the defendant; and (3) that is 28 redressable by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) 1 as revised (May 24, 2016); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). 2 Plaintiff bears the burden of proof and must “clearly . . . allege facts demonstrating each 3 element.” Spokeo, Inc., 136 S. Ct. at 1547 (internal quotations omitted) (quoting Warth v. Seldin, 4 422 U.S. 490, 518 (1975)). “[E]ven named plaintiffs who represent a class ‘must allege and show 5 that they personally have been injured, not that injury has been suffered by other, unidentified 6 members of the class to which they belong.’” Id. at 1547 n.6 (quoting Simon v. E. Ky. Welfare 7 Rights Org., 426 U.S. 26, 40 n.20 (1976)). 8 B. Rule 12(b)(6) 9 A motion to dismiss for failure to state a claim upon which relief can be granted under 10 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 11 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 12 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 13 556 U.S. 662, 677–78 (2009). Under notice pleading in federal court, the complaint must “give 14 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). 16 “This simplified notice pleading standard relies on liberal discovery rules and summary judgment 17 motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz 18 v. Sorema N.A., 534 U.S. 506, 512 (2002). 19 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 20 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 21 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 22 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 23 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 24 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 25 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 26 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 27 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 28 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 1 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 2 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 3 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements, do not suffice.”). Thus, “conclusory allegations of law and unwarranted inferences 5 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355, 6 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 7 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 8 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 9 Council of Carpenters, 459 U.S. 519, 526 (1983). 10 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 11 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 12 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 14 678. While the plausibility requirement is not akin to a probability requirement, it demands more 15 than “a sheer possibility that a defendant has acted unlawfully.” Id. This plausibility inquiry is “a 16 context-specific task that requires the reviewing court to draw on its judicial experience and 17 common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or her] claims . . . 18 across the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680 19 (internal quotations omitted). 20 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 21 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 22 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 23 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels- 24 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 25 allegations that contradict matters properly subject to judicial notice). 26 If a complaint fails to state a plausible claim, “‘a district court should grant leave to amend 27 even if no request to amend the pleading was made, unless it determines that the pleading could 28 not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 1 Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see also 2 Gardner v. Martino, 563 F.3d 981, 992 (9th Cir. 2009) (finding no abuse of discretion in denying 3 leave to amend when amendment would be futile). Although a district court should freely give 4 leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to deny such 5 leave is ‘particularly broad’ where the plaintiff has previously amended its complaint[.]” 6 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 7 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 8 III. ANALYSIS 9 Plaintiff seeks injunctive relief, statutory damages, and attorney’s fees against Defendant 10 for discrimination on the basis of her disability in the full and equal enjoyment of the Website. 11 (ECF No. 1 at 6–9.) Defendant filed the instant motion to dismiss pursuant to Rules (12)(b)(1) 12 and 12(b)(6). (See ECF No. 4-1.) The Court will address each basis for dismissal. 13 A. Rule 12(b)(1) 14 Defendant moves to dismiss Plaintiff’s ADA claim, arguing the Court lacks subject matter 15 jurisdiction because: (1) Plaintiff has not pleaded she experienced an injury in fact; and (2) 16 Plaintiff’s claim is moot. (ECF No. 4-1 at 8–9.) The Court will address each argument in turn. 17 i. Injury in Fact 18 Defendant argues Plaintiff fails to plead facts showing the inaccessibility of the Website 19 impeded her access to the goods and services at Defendant’s Clinic. (ECF No. 4-1 at 8.) Plaintiff 20 opposes, arguing she satisfied the pleading standard to achieve standing. (ECF No. 7 at 2.) 21 To satisfy the constitutional minimum of standing, “the plaintiff must have suffered an 22 ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and 23 particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of 24 Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks, citations, and footnote omitted). 25 “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 26 561. “At the pleading stage, general factual allegations of injury resulting from the defendant’s 27 conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace 28 those specific facts that are necessary to support the claim.” Id. (alteration in original) (citation 1 and internal quotation marks omitted). In the ADA context, a plaintiff must demonstrate she 2 encountered a barrier related to her disability that affected her and interfered with her “full and 3 equal enjoyment” of the facility. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th 4 Cir. 2011) (en banc). Once a plaintiff encounters such a barrier, she “has already suffered an 5 injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, 6 and so [s]he possesses standing under Article III . . . .” Id. at 947 (quoting Doran v. 7-Eleven, 7 Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008)). 8 Defendant argues Plaintiff does not allege that she was unable to access goods and 9 services or to locate the clinic and its hours as a result of the allegedly inaccessible video(s) on 10 the Website. (ECF No. 4-1 at 8–9.) Defendant asserts that because the Website does not offer the 11 ability to purchase goods or services and instead requires all customers to participate in an initial 12 consultation prior to purchasing goods and services, Plaintiff fails to plead facts about how the 13 allegedly inaccessible videos impeded her access to goods and services. (Id.) In her Complaint, 14 Plaintiff alleges Defendant owns or operates a skin and wellness center, that Plaintiff was a 15 “prospective customer who wished to access Defendant’s goods and services,” and Plaintiff 16 visited the Website “to look for information about the [C]linic and the scope of its services and 17 work.” (ECF No. 1 at 2–3.) Plaintiff further alleges the lack of closed captioning on the videos 18 she sought to view on the Website prevented her from accessing material that would have enabled 19 her to decide whether to patronize Defendant’s business. (See id. at 3–5.) When presented with 20 substantially similar allegations, another court in the Eastern District found such allegations were 21 sufficient, “[p]articularly in light of the Supreme Court’s admonition that courts must take a broad 22 view of constitutional standing in civil rights cases, especially where, as under the ADA, private 23 enforcement suits are the primary method of obtaining compliance with the Act . . . .” Erasmus v. 24 Charles W. Perry, M.D., Inc., No. 2:21-cv-00915-WBS-KJN, 2021 WL 4429462, at *3 (E.D. Cal. 25 Sept. 27, 2021) (internal quotations omitted) (holding plaintiff pleaded sufficient facts to establish 26 standing to sue under the ADA in a nearly identical action filed by the same Plaintiff and 27 Plaintiff’s counsel as the instant action) (quoting Doran, 524 F.3d at 1039)). 28 /// 1 Accepting the allegations in Plaintiff’s Complaint as true, the Court finds Plaintiff 2 sufficiently pleaded facts about how the allegedly inaccessible videos impeded her access to 3 Defendant’s goods and services. Accordingly, the Court finds Plaintiff adequately pleaded an 4 injury in fact and has standing to sue under the ADA. 5 ii. Mootness 6 Defendant argues the Court should dismiss Plaintiff’s ADA claim because the fact that it 7 has removed the video at issue — in addition to other videos that did not have closed captioning 8 capabilities — renders it moot. (ECF No. 4-1 at 9–10.) Further, Defendant asserts it does not 9 intend to put the videos it removed back on the Website, nor does it intend to add any video in the 10 future that does not provide closed captioning. (Id.) In opposition, Plaintiff asserts Defendant 11 has not met its heavy burden to moot this case because it does not offer any evidence that will 12 ensure the website will be compliant moving forward. (ECF No. 7 at 7–8.) In reply, Defendant 13 argues it provided declarations from Andrea Tse that state the Website no longer contains any 14 video without closed captioning. (ECF No. 9 at 3–4; ECF No. 4-3 at 1–2.) Additionally, 15 Defendant argues the Website will remain ADA compliant moving forward because “putting non- 16 compliant videos back onto [the] Website after purposefully removing any and all videos, 17 including the videos that do have closed captioning, would defy all logic and common sense.” 18 (ECF No. 9 at 4.) 19 Article III of the Constitution limits federal subject matter jurisdiction to “cases” and 20 “controversies.” U.S. Const. Art. III. “A case is moot when the issues presented are no longer 21 ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 22 529 U.S. 277, 287 (2000) (internal citation omitted). However, “[i]t is well settled that a 23 defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its 24 power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 25 U.S. 283, 289 (1982). “[A] defendant claiming that its voluntary compliance moots a case bears 26 the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could 27 not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), 28 Inc., 528 U.S. 167, 190 (2000). 1 In the ADA context, “a defendant’s voluntary removal of alleged barriers prior to trial 2 may render a plaintiff’s ADA claim moot.” Johnson v. Starbucks Corp., Case No. 16-cv-00724- 3 DMR, 2018 WL 5099283, at *4 (N.D. Cal. Oct. 17, 2018) (citing Oliver v. Ralphs Grocery Co., 4 654 F.3d 903, 905 (9th Cir. 2011)); see also Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 5 1145 (S.D. Cal. 2006). However, “courts have been more reluctant to find that an ADA 6 plaintiff’s claims have been mooted where the alleged barriers are not structural in nature, since 7 nonstructural barriers (such as policy changes or features on a website) are more likely to 8 reoccur.” Langer v. Pep Boys Manny Moe & Jack of Cal., No. 20-cv-06015-DMR, 2021 WL 9 148237, at *3 (N.D. Cal. Jan. 15, 2021) (citing Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 10 2013)) (rejecting mootness finding where the defendant’s policy change “could be easily 11 abandoned or altered in the future”). 12 Though Defendant has purportedly remedied the Website to be ADA compliant, it is not 13 absolutely clear that videos without closed captioning capabilities will never again be posted on 14 the Website as they could easily be posted again. See Johnson v. SSR Grp., Inc., No. 15-cv-5094- 15 MEJ, 2016 WL 3669994, at *4 (N.D. Cal. July 11, 2016) (“While laudable, these voluntary 16 remediation efforts are not structural in nature, and could easily reoccur despite [d]efendant’s best 17 intentions”); Nat’l Fed’n of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1193 (N.D. Cal. 18 2007) (“[T]he continuous addition of new pages to Target.com argues against a mootness 19 finding,” as “[a]side from the incompleteness of the modifications and the potential for new 20 pages, it is well-settled law that voluntary cessation of allegedly illegal conduct . . . does not make 21 the case moot.” (internal citations and quotations omitted)). Accordingly, a finding of mootness 22 would be inappropriate. 23 Here, Defendant has not met its burden to show it is absolutely clear the allegedly 24 wrongful behavior could not reasonably be expected to recur. See Laidlaw, 528 U.S. at 190. 25 Therefore, the Court DENIES Defendant’s motion to dismiss for lack of subject matter 26 jurisdiction pursuant to Rule 12(b)(1). 27 /// 28 /// 1 B. Rule 12(b)(6) 2 Defendant moves to dismiss Plaintiff’s claims for failure to state a claim upon which relief 3 can be granted. (ECF No. 4-1 at 4–9.) Defendant argues Plaintiff fails to state a claim for an 4 ADA violation because Plaintiff fails to plead the requisite “nexus” between the Website and its 5 brick-and-mortar Clinic. (Id. at 4–7.) In opposition, Plaintiff argues her Complaint “clearly 6 pleads a nexus to a physical location.” (ECF No. 7 at 5.) Plaintiff asserts there is a nexus 7 between the Clinic, a “brick and mortar facility,” and the Website, which “offers information 8 about various treatments offered.” (Id.) 9 By enacting the ADA, Congress intended “‘to provide a clear and comprehensive national 10 mandate for the elimination of discrimination against individuals with disabilities.’” Olmstead v. 11 L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999) (quoting 42 U.S.C. § 12101(b)(1)). To 12 accomplish that goal, Title III of the ADA provides “[n]o individual shall be discriminated 13 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 14 privileges, advantages, or accommodations of any place of public accommodation by any person 15 who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 16 12182(a). 17 In defining a place of “public accommodation” subject to Title III protection, the ADA 18 enumerates twelve categories of “places” and “establishments” that mostly reference physical 19 locations. Martinez v. San Diego Cnty. Credit Union, 50 Cal. App. 5th 1048, 1060 (2020). The 20 implementing regulations refer to a “public accommodation” as a “facility,” which is defined as 21 “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock . . . or other 22 real or personal property, including the site where the building, property, structure, or equipment 23 is located.” 28 C.F.R. § 36.104. 24 It is unsurprising that a business website is not included within these statutory categories 25 as Congress enacted the ADA in 1990 — well before websites assumed the prominent role they 26 now occupy in American business. Although the Department of Justice (“DOJ”) has previously 27 endorsed the applicability of Title III to “[w]eb sites of public accommodations,” the DOJ has 28 provided no specific regulatory guidance as to whether a website may constitute a place of public 1 accommodation if untethered from a physical location. Robles v. Domino’s Pizza, LLC, 913 F.3d 2 898, 903, 906–07 (9th Cir. 2019). 3 The Ninth Circuit’s position is that even if websites are not “public accommodations” 4 under the ADA, a denial of equal access to a website can nonetheless support an ADA claim “if 5 the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the 6 goods and services offered at the defendant’s physical facilities.” See Martinez, 50 Cal. App. 5th 7 at 1063 (citing Robles, 913 F.3d at 905–06). The Ninth Circuit has also held that Title III’s 8 “auxiliary aids and services” requirement can apply to a public accommodation’s 9 website. See Robles, 913 F.3d at 905 ((“The statute applies to the services of a place of public 10 accommodation, not services in a place of public accommodation. To limit the ADA to 11 discrimination in the provision of services occurring on the premises of a public accommodation 12 would contradict the plain language of the statute.” (internal citation omitted) (emphasis in 13 original) (quoting Nat’l Fed’n of the Blind, 452 F. Supp. 2d at 953)); see also Bragdon v. Abbott, 14 524 U.S. 624, 646 (1998) (finding DOJ’s administrative guidance in implementing the ADA is 15 entitled to deference). Thus, the pertinent issue becomes whether the website sufficiently 16 connects customers to the services of a physical store to trigger protection under the ADA. 17 See Reed v. CVS Pharmacy, Inc., No. CV 17-3877-MWF (SKx), 2017 WL 4457508, at *3 (C.D. 18 Cal. Oct. 3, 2017) (holding that to state a claim under the ADA based on a website, a plaintiff 19 must allege “some connection between the good or service complained of and an actual physical 20 place”) (citation omitted); Nat’l Fed’n of the Blind, 452 F. Supp. 2d at 952. 21 Here, Plaintiff’s Complaint alleges the Website is a nexus between customers and the 22 terrestrial based privileges, goods, or services Defendant offers. (ECF No. 1 at 3.) Plaintiff 23 further claims, “[i]f the Website had been constructed equally accessible to all individuals, 24 Plaintiff would have been able to navigate the website and avail herself of its goods and/or 25 services.” (Id. at 4.) In the instant motion, Defendant asserts Plaintiff cannot establish the 26 requisite nexus element because no goods or services are available for purchase on the Website 27 — “all services, including the purchase of skincare products, require an in-person consultation at 28 the physical [C]linic location or on Zoom so that a skincare plan can be created for the customer.” 1 (ECF No. 4-1 at 7.) Defendant further argues the ADA does not cover a website unless the 2 website itself allows a person to purchase goods or services. (See id. at 6–7.) 3 However, the Ninth Circuit specifically declined in Robles to hold that such a nexus 4 requirement exists. See Robles, 913 F.3d at 905 n.6 (“We need not decide whether the ADA 5 covers the websites or apps of a physical place of public accommodation where their 6 inaccessibility does not impede access to the goods and services of a physical location.”). 7 “Nowhere do Title III or its implementing regulations state that an inaccessible feature of a public 8 accommodation must prevent an individual from accessing the accommodation’s good[s] or 9 services for the ADA’s protections to apply.”3 Erasmus, 2021 WL 4429462, at *5 (emphasis in 10 original). 11 The language of the statute and implementing regulations is much broader and ensures 12 “no individual with a disability is excluded, denied services, segregated or otherwise treated 13 differently than other individuals because of the absence of auxiliary aids and services,” and 14 requiring that public accommodations “furnish appropriate auxiliary aids and services where 15 necessary to ensure effective communication with individuals with disabilities.” 42 U.S.C. § 16 12182(b)(2)(a)(iii); 28 C.F.R. § 36.303(c)(1). 17 ///
18 3 This Court previously ruled on an ADA case involving a blind plaintiff who failed to 19 identify the requisite nexus against a defendant’s store website in Brooks v. Lola & Soto Business Group, Inc., No. 2:21-cv-00158-TLN-DB, 2022 WL 616798. (E.D. Cal. Mar. 2, 2022). The 20 Brooks plaintiff alleged the defendant’s website was not ADA compliant because its website store locator did not properly function with the screen reading software she had to use as a blind 21 individual. Id. at *1. The plaintiff alleged she “was unable to find the location and hours of operation of [d]efendant’s store on its website, preventing [p]laintiff from visiting the location to 22 purchase products and/or services.” Id. In granting the defendant’s motion to dismiss, this Court 23 reasoned the store locator in question “by all indications, would have no functional difference from the results obtained by a simple Google search for Defendant’s shop on any internet 24 browser” and therefore there is no explanation as to why this feature would have prevented her from ascertaining defendant’s brick and mortar store location. Id. at *7 (citations and alterations 25 omitted). The instant case differs from Brooks — here, the lack of closed captioning features on Defendant’s Website inhibits Plaintiff’s ability to view information about Defendant’s Clinic and 26 the scope of its services as a prospective customer. (ECF No. 1 at 3–4.) Since the Brooks 27 plaintiff and the instant Plaintiff were attempting to use the respective websites for different tasks (i.e. locating the store versus viewing available products and services), the accessibility issues for 28 each plaintiff is different. 1 Here, Plaintiff, who is deaf, alleges she was a prospective customer who sought to view 2 Defendant’s videos on the Website to look for information about the Clinic and its services but 3 was unable to understand them because the videos lacked closed captioning. (ECF No. 1 at 3–4.) 4 Defendant’s Website, therefore, failed to provide the “auxiliary aids and services . . . necessary to 5 ensure effective communication” with Plaintiff, a disabled individual. See 28 C.F.R. § 6 36.303(c)(1); see also id. at § 36.303(b)(1) (defining “auxiliary aids and services” to include 7 “closed captioning” and other accommodations designed to render “aurally delivered information 8 available to individuals who are deaf or hard of hearing”). 9 Moreover, testimonial videos may often prove valuable to an individual considering whether to solicit a business’s services by 10 providing information about prior customers’ experiences and the 11 benefits and detriments the viewer is likely to experience if she obtains those services herself. This is particularly true where, as 12 here, doing so would effect a permanent change to a customer’s physical appearance. Here, however, according to [P]laintiff’s 13 [C]omplaint, due to [D]efendant’s failure to provide closed captioning or comparable auxiliary aids, this information was only 14 available to prospective customers who can hear. 15 16 Erasmus, 2021 WL 4429462, at *5. 17 Accordingly, Plaintiff has alleged adequate facts to show the videos on Defendant’s 18 Website provide a non-deaf person a benefit in assessing whether to obtain its services that is 19 unavailable to a deaf person, thereby impeding “full and equal” access to and “enjoyment of” its 20 services for deaf people, and “treat[ing them] differently than other individuals because of the 21 absence of auxiliary aids and services.” 42 U.S.C. §§ 12182(a)–12182(b)(2)(A)(iii). Therefore, 22 Plaintiff has sufficiently stated a claim under Title III of the ADA. The Court therefore DENIES 23 Defendant’s motion to dismiss Plaintiff’s ADA claim. 24 C. Unruh Act Claim 25 Defendant argues the Court should decline to exercise supplemental jurisdiction over 26 Plaintiff’s Unruh Act claim because it is predicated on an insufficient ADA claim. (ECF No. 4-1 27 at 10.) In opposition, Plaintiff argues even if the Court dismisses her federal claims, it should 28 retain supplemental jurisdiction over her state claim. (ECF No. 7 at 10.) 1 A plaintiff can recover under the Unruh Act on grounds that: (1) a violation of the ADA 2 | has occurred under California Civil Code § 51(f); or (2) that she has been denied access to a 3 | business establishment due to intentional discrimination in violation of California Civil Code § 4 | 52. See Munson v. Del Taco, Inc., 46 Cal. 4th 661, 670 (2009). “[A] violation of the ADA is, per 5 | se, a violation of the Unruh Act.” Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 847 6 | (9th Cir. 2004) (emphasis in original). Therefore, “a plaintiff who pleads a violation of the ADA 7 | does not need to allege anything further in order to state a claim under the Unruh Act.” □□□□□ 8 | Fed’n of the Blind, 452 F. Supp. 2d at 957 (citing Lentini, 370 F.3d at 847). Here, since Plaintiff 9 | has successfully pleaded a violation of the ADA, she has successfully pleaded a violation of the 10 | Unruh Actas well. Id. Accordingly, the Court DENIES Defendant’s motion to dismiss 11 | Plaintiffs Unruh Act claim. 12 IV. CONCLUSION 13 For the foregoing reasons, the Court hereby DENIES Defendant’s Motion to Dismiss 14 | (ECF No. 4-1.) Defendant shall file an answer not later than twenty-one (21) days from the 15 } electronic filing date of this Order. 16 IT IS SO ORDERED. 17 DATED: June 15, 2022 18 /) 19 “ \/ Lu 20 —AMN ZN Troy L. Nunley } 21 United States District Judge 22 23 24 25 26 27 28 14