Gomez v. Gates Estates, Inc.

• Court: District Court, N.D. California
• Decided: February 15, 2022
• Docket: 3:21-cv-07147
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5

7 ANDRES GOMEZ, 8 Plaintiff, No. C 21-7147 WHA

9 v.

10 GATES ESTATES, INC., ORDER DISMISSING CASE 11 Defendant.

12 13 INTRODUCTION 14 In this action under Title III of the Americans with Disabilities Act, a blind plaintiff 15 alleges that a realtor’s website discriminates against him by failing to be usable by “screen 16 reader software,” which vocalizes visual information on websites for use by the visually 17 impaired. Defendant moves to dismiss for lack of subject-matter jurisdiction under FRCP 18 12(b)(1). For the reason that follows, this case is DISMISSED. 19 STATEMENT 20 Defendant Gates Estates, Inc., d/b/a Vintage Sotheby’s International Realty, is a 21 residential real estate broker doing business in Napa. As part of its business, defendant owns 22 and operates the website located at: https://thenapahometeam.com. 23 Plaintiff Andres Gomez, a blind man who lives in Miami, cannot use a computer without 24 the assistance of “screen reader software.” For plaintiff’s screen reader software to properly 25 interact with a website, however, the website must be designed in a certain way. “Protocols for 26 designing an accessible internet site rely heavily on ‘alternative text’: invisible code embedded 27 beneath graphics. A blind individual can use screen reader software, which vocalizes the 1 read the navigation links, then a blind individual can navigate the site with a keyboard instead 2 of a mouse.” Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 949–50 (N.D. Cal. 3 2006) (Judge Marilyn H. Patel). 4 The complaint alleges that plaintiff “was a prospective customer who wished to access 5 Defendant’s goods and services of the Real Estate. Plaintiff visited the Website in March 2021 6 and July 2021 with the intent to get information about houses on sale in Northern California.” 7 The complaint alleges that because of “numerous accessibility design faults,” plaintiff could 8 not navigate defendant’s website using screen reader software. Plaintiff alleges that if the 9 website had been properly designed to be accessible by the blind, he would have been able to 10 use it to find information about houses listed for sale by defendant. The complaint alleges 11 plaintiff has been deterred from revisiting the website due to its inaccessibility. 12 The complaint asserts that plaintiff is a “tester.” The instant complaint is one of five 13 materially identical complaints all filed within a three-week span in this district by plaintiff, 14 represented by the same counsel, against real estate brokers located in and around Napa.1 15 Defendant now moves to dismiss for lack of subject-matter jurisdiction under FRCP 16 12(b)(1). This order follows full briefing, a telephonic hearing, and a supplemental filing from 17 plaintiff, as detailed below. 18 ANALYSIS 19 A motion under FRCP 12(b)(1) contends that the district court lacks subject-matter 20 jurisdiction over the case. “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a 21 facial attack, the challenger asserts that the allegations contained in a complaint are insufficient 22 on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger 23 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 24 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations 25 omitted). 26 27 1 Gomez v. The Magliocco Group Inc., No. 3:21-cv-7148-VC (N.D. Cal. Sep. 15, 2021) (Judge Vince Chhabria); Gomez v. Smith, No. 3:21-cv-7154-RS (N.D. Cal. Sep. 16, 2021) (Judge Richard Seeborg); Gomez v. Naimo, No. 1. CLARIFICATION OF PLAINTIFF’S THEORY OF STANDING. 1 At the hearing on the instant motion, the judge expressed doubt that plaintiff had standing 2 to bring this lawsuit on sole the basis that he was a “tester” merely of the website with no 3 intention of using defendant’s services. Nonetheless, faced with a motion to dismiss a thin and 4 ambiguous complaint, supported by a thin record, the judge invited plaintiff to file a stipulation 5 clarifying the basis for his standing to bring this suit. An order issued the next day clarifying 6 the judge’s bench ruling (Dkt. No. 33): 7 By Monday, February 14 at noon, plaintiff may file a stipulation 8 that the basis for his standing to bring this lawsuit is that he is a “tester” solely for defendant’s website. That is, that plaintiff only 9 desires to use defendant’s website; that plaintiff has no intent or desire to avail himself of, and that he has not been deterred from 10 availing himself of, the services of defendant’s physical office, as a “tester” or otherwise. 11 12 Plaintiff has timely filed a response, supported by a declaration (Dkt. No. 34). The 13 response states in part: 14 Mr. Gomez does not assert that his standing to sue in this matter is related to any present intention to patronize the realtor 15 services of Sotheby’s, but it is based as a tester with a general interest in high-end real estate divorced from any present ability to 16 purchase property in the area. He is a dreamer and window- shopper and asserts that there is no requirement that he engage the 17 services of the business to assert a claim for discrimination in his inability to access privileges and advantages of the website such as 18 viewing the public listed real estate listings.

19 He further asserts that this claim is not based on any present intention to visit the physical location . . . . 20 21 Plaintiff’s accompanying declaration states in part (Dkt. No. 34-1 ¶¶ 4–7): 22 With respect to real estate on the Sotheby’s website, I like upscale areas. I currently live in Coral Gables, considered the 23 “Beverly Hills” of Miami. I often dream of buying property in other places, and Napa is one of my dream destinations. 24 It is unlikely that I would purchase a home in the near-term 25 from one of the listings offered by the Defendant in this case, however there is value to me in consuming the information 26 provided in real estate listings regardless of any specific plans to purchase those listings. 27 by those companies. I enjoy window shopping those listings to get 1 an idea of what it costs to live in the area and I like imagining moving there. 2 While I do not presently have an intention to buy any 3 specific property at a specific time, I have a general interest in keeping up with the real estate markets. Being aware of 4 developments in high-end real estate markets both provides me entertainment and motivates me to develop my assets in a way that 5 might enable me to purchase property in the future. 6 In other words, (1) plaintiff has no desire or intent to “engage the services of the 7 business,” and (2) plaintiff’s only interest in this suit is unimpeded access to the information 8 provided on defendant’s website about the homes defendant lists for sale. For the reasons that 9 follow, plaintiff has not suffered an injury under the ADA. 10 2. PLAINTIFF HAS NOT SUFFERED AN INJURY UNDER THE ADA AS 11 CONSTRUED BY ROBLES V. DOMINO’S PIZZA. 12 Title III of the ADA provides: 13 No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, 14 facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or 15 leases to), or operates a place of public accommodation. 16 42 U.S.C. § 12182(a). 17 To prevail on a claim of discrimination under Title III, a plaintiff must show that: (1) he 18 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 19 leases, or operates a place of public accommodation; and (3) the plaintiff was discriminated 20 against within the meaning of the ADA. See Arizona ex rel. Goddard v. Harkins Amusement 21 Enterprises, Inc., 603 F.3d 666, 670 (9th Cir. 2010). 22 Discrimination under Title III includes: 23 A failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated 24 or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can 25 demonstrate that taking such steps would fundamentally alter the nature of the good, service . . . being offered or would result in an 26 undue burden. 27 42 U.S.C. § 12182(b)(2)(A)(iii). 1 In Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), our court 2 of appeals held that Title III did not apply to an insurer who administered an employer- 3 provided long-term disability insurance policy for purposes of a discriminatory provision in the 4 policy. Id. at 1115. While an insurance office is a public accommodation as expressly 5 provided by Section 12181(7)(F), 6 All the items on this list . . . are actual, physical places where goods or services are open to the public, and places where the 7 public gets those goods or services. . . . [T]his context suggests that some connection between the good or service complained of 8 and an actual physical place is required. 9 Id. at 1114. There was no such connection between the employer-provided disability insurance 10 plan and the insurer’s physical office, so Title III did not apply to the insurance plan. Id. at 11 1115. 12 In Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied 140 S. Ct. 13 122 (2019), a blind plaintiff alleged that the defendant pizzeria discriminated against him, 14 within the meaning of the ADA, by failing to design its website and mobile app to be 15 compatible with plaintiff’s screen-reading software. Domino’s website and app “allows 16 customers to order pizzas and other products for at-home delivery or in-store pickup, and 17 receive exclusive discounts.” Id. at 902. Noting Section 12182(b)(2)(A)(iii)’s requirement of 18 public accommodations to provide auxiliary aids and services when necessary to ensure that no 19 disabled individual is segregated or otherwise treated differently, our court of appeals held: 20 The alleged inaccessibility of Domino’s website and app 21 impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation. 22 Customers use the website and app to locate a nearby Domino’s restaurant and order pizzas for at-home delivery or in-store pickup. 23 This nexus between Domino’s website and app and physical restaurants—which Domino’s does not contest—is critical to our 24 analysis.

25 * * *

26 Unlike the insurance policy in Weyer, Domino’s website and app facilitate access to the goods and services of a public 27 accommodation—Domino’s physical restaurants. They are two of restaurants. We agree with the district court in this case—and the 1 many other district courts that have confronted this issue in similar contexts—that the ADA applies to Domino’s website and app, 2 which connect customers to the goods and services of Domino’s physical restaurants. 3 4 Id. at 905–06 (footnotes and citations omitted). 5 Thus, under Robles, a website without the “critical” nexus to a “physical” place of public 6 accommodation is itself not a public accommodation within the meaning of the ADA; nor is a 7 website a service of a public accommodation. Id. at 905 (“the ADA only covers ‘actual, 8 physical places where goods or services are open to the public, and places where the public 9 gets those goods or services’ . . . .” (citing Weyer, 198 F.3d at 1114)).2 Instead, in our circuit, 10 Title III applies to a website only if the website “facilitates access to the goods and services of 11 a place of public accommodation,” or, put differently, if the inaccessibility of the website 12 “impedes access to the goods and services” of the physical location. Ibid. (emphasis added). 13 Therefore, because a website is neither a public accommodation, nor a service of a public 14 accommodation under Robles, plaintiff must allege and prove that the inaccessibility of the 15 website has deterred him from using the services of the physical location. 16 Here, as merely a dreamer and window-shopper, plaintiff has affirmatively disclaimed 17 any intention of “engag[ing] the services of the business” (Dkt. No. 34 at 1.) Plaintiff wants to 18 look up houses for sale in Napa on defendant’s website, but, under Robles, the ADA does not 19 protect his general interest in being able to gather information from defendant’s website 20 unrelated to any desire to avail himself of defendant’s actual services. Instead, the ADA 21 protects plaintiff’s interest in using the website only if its inaccessibility impedes his access to 22 the services of defendant’s physical office. Since plaintiff has no intent or desire to use such 23 24 2 There is a split in authority on these issues. Compare Cullen v. Netflix, 880 F.Supp.2d 1017 (N.D. Cal. 2012) (Judge Edward J. Davila) (Title III of ADA did not apply to Netflix’s website because it was not a public 25 accommodation) with Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196, 201 (D. Mass. 2012) (Judge Michael A. Ponsor) (Netflix’s website qualified as a “service establishment,” “place of public exhibition or entertainment,” and/or 26 “rental establishment,” within the meaning of Title III and therefore the website itself was a public accommodation). See Nat’l Fed. of the Blind v. Scribd Inc., 97 F.Supp.3d 565 (D. Vt. 2015) (Judge William K. Sessions III) (website 27 itself was public accommodation without any connection to physical place); Winegard v. Crain Comm’s, Inc., 2021 WL 1198960 (S.D.N.Y. March 30, 2021) (Judge Alison J. Nathan) (website itself was public accommodation); 1 services, the inaccessibility of the website has not impeded his access to them and, therefore, 2 he has not suffered an injury under the ADA. 3 To be clear, this order does not hold that plaintiff is required to allege and prove he has 4 the intent and ability to buy a home listed for sale by defendant. As a real estate broker, 5 defendant offers far more services than just consummating the sale of a home. See Cal. Bus. & 6 Prof. Code § 10131. For example, defendant may negotiate “leases or rents or offers to lease 7 or rent . . . or solicit[] listings of places for rent, or solicit[] for prospective tenants . . . .” Id. 8 § 10131(b). In addition, as a real estate broker, defendant “negotiates to do one or more of the 9 following acts for another or others: (a) Sells or offers to sell, buys or offers to buy, solicits 10 prospective sellers or buyers of . . . real property . . . .” Id. § 10131(a). A real estate broker 11 also “solicits borrowers or lenders for or negotiates loans or collects payments or performs 12 services for borrowers or lenders . . . in connection with loans secured . . . by liens on real 13 property . . . .” Id. § 10131(d). It would be an injury under the ADA if the inaccessibility of 14 defendant’s website impeded plaintiff’s access to any service offered by defendant for which 15 defendant is required by law to maintain a real estate broker or real estate agent license 16 (assuming that service is a service of defendant’s physical, public accommodation). Under 17 Robles, defendant’s website itself is not a service of defendant’s business within the meaning 18 of the ADA. And plaintiff has no interest or desire to “engage the services of the business.” 19 Therefore, he has not suffered an injury under the ADA. 20 3. THE UNRUH ACT CLAIM. 21 The complaint also asserts a state-law claim under California’s Unruh Civil Rights Act, 22 Cal. Civ. Code § 51. A violation of the ADA is a violation of the Unruh Civil Rights Act. Cal. 23 Civ. Code § 51(f). Because this order dismisses plaintiff’s federal claim for lack of subject- 24 matter jurisdiction, dismissal of the supplemental state-law claim is mandatory, not 25 discretionary. Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 26 2001). 27 4. FUTILITY OF AMENDMENT. Rule 15(a)(2) provides that leave to amend should be “freely give[n] when justice so 2 requires.” If an amended complaint would be futile, leave to amend is properly denied. See 3 Foman vy. Davis, 371 U.S. 178, 182 (1962). Here, plaintiff was informed at the hearing that if 4 he chose to proceed on the theory that he had standing merely as a tester of the website and 5 was not required to show an intent to use defendant’s services, the judge would dismiss the 6 case so the issue could go up on appeal. Plaintiff has chosen to proceed on that theory. 7 “Plaintiff asks that the Court find that Gomez has standing (or does not) based on the asserted 8 declaration and record submitted” (Dkt. No. 34 at 2.) This order has obliged plaintiff. Leave 9 to amend would be futile. 10 CONCLUSION 11 For the foregoing reasons, this case is DISMISSED. This order does not address 12 defendant’s other arguments for dismissal. In particular, this order does not address the 13 relevance of plaintiff’s economic condition to his standing to bring this lawsuit. 4 © 15 IT IS SO ORDERED. Q 16 & 17 Dated: February 15, 2022 Z 18 A - 19 WILLIAM ALSUP 0 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28