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Date: 09-06-2019

Case Style: Cheryl Thurston v. Midvale Corporation

Case Number: B291631

Judge: Stratton, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Roger M. Mansukhani, Jon C. Yonemitsu, Kara A. Ritter, Marc J. Poster and Alison M. Turner

Defendant's Attorney: Scott J. Ferrell, David W. Reid, Victoria C. Knowles and Richard H. Hikida

Description:




Cheryl Thurston is blind and uses screen reader software (a
screen reader) to access the Internet and read website content.
She filed this lawsuit after she could not access appellant’s
restaurant website, www.whisperloungela.com, with her screen
reader. Her complaint alleged appellant violated the Unruh Civil
Rights Act (Civ. Code, § 51 et seq.) by violating the federal
American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101
et seq.).
This appeal asks us to decide whether Title III of the ADA
applies to this website, requiring appellant Midvale Corporation
to render its restaurant website accessible to blind individuals
such as Thurston. Accessibility would require Midvale to
redesign its website so it can be read aloud by screen reader
software. Appellant asks us to adopt the 20-year-old minority
position of the United States Court of Appeals for the Third
Circuit that the ADA applies to physical barriers to physical
places only and to reverse the trial court’s imposition of an
injunction and statutory damages and grant of summary
judgment in favor of Thurston. We decline to do so.
Appellant raises three other contentions. First, it argues
that even if the ADA applies to websites, summary judgment
must be reversed because the statutory damages award and the
injunction violate its right to due process. Appellant next
contends summary judgment must be reversed because there is a
triable issue of fact as to whether providing a telephone number
and email address is an acceptable alternative to a website
accessible by screen readers. Finally, appellant contends the
injunction must be dissolved because it is overbroad and
uncertain and Thurston lacked standing to claim prospective
relief. The claims invoking due process, standing, and
3
overbreadth are claims appellant made in its own unsuccessful
cross-motion for summary judgment. We agree with the trial
court on all issues and affirm the judgment.
BACKGROUND
The facts are straightforward. Thurston is blind and uses
screen reader software to access the Internet. Among other
functions, a screen reader vocalizes invisible code (alternative
text) embedded beneath graphics on the website and describes
the content of the webpage. In her complaint, Thurston
identified significant barriers when she tried to use appellant’s
website for its restaurant, The Whisper Lounge: with her
software she could not read the menu or make reservations.
In addition, the graphics were either inadequately labelled or not
labelled at all, so her screen reader could not discern what
information the graphics purported to present. Thurston stated
this unsuccessful encounter caused her difficulty, discomfort, and
embarrassment. The website, however, did list a telephone
number for The Whisper Lounge. Thurston was unaware the
website listed a telephone number. Nonetheless, she stated that
using the telephone number as an alternative would not have
provided her with the same privacy and independence that a fully
accessible website offered or that the non-accessible website
offered a sighted person. The website’s reservation system was
accessible 24 hours per day every day to sighted individuals, but
reserving a table by calling the restaurant could only be done
during the restaurant’s operating hours.
Thurston filed a complaint against the owner of The
Whisper Lounge, Midvale Corporation, alleging that the
inaccessible website violated the Unruh Act (Civ. Code, § 51
et seq.) which mandates “full and equal accommodations,
4
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code, § 51,
subd. (a).) The Unruh Civil Rights Act also provides that a
“violation of the federal American with Disabilities Act of 1990
[(ADA)] shall also constitute a violation of this section.” (Civ.
Code, § 51, subd. (f).) It was under subdivision (f) that Thurston
brought her lawsuit.
The trial court granted summary judgment in Thurston’s
favor. The court found Title III of the ADA applied to the
website: “The court finds a plain reading of the statute, as well
as the Department of Justice’s treatment of websites under the
ADA, indicate that Defendant’s website falls within the category
of ‘services, . . . privileges, advantages, or accommodations of’ a
restaurant, which is a place of public accommodation under the
ADA. (42 U.S.C. §§ 12181(7)(B); 42 U.S.C. § 12182(a).)”
The trial court found Thurston had proven the website was
inaccessible to blind users: “Plaintiff has provided evidence that
she encountered barriers to Defendant’s website which have
prevented her from using its features. (Thurston Decl., ¶¶ 3-7.)
Specifically, Thurston contends she visited the website on
February 20, 2017, and four to five times thereafter, (Thurston
Decl. ¶ 3.) she was unable to read the menu because it was
‘offered in an unreadable graphic image’ and the link to the pdf
version of the menu resulted in an error message. (Thurston
Decl., ¶¶ 4-5.) Plaintiff also contends that she was unable to
make a reservation or determine whether she could make an
online reservation. (Thurston Decl., ¶ 6.)” The court further
found: “Defendant fails to provide any evidence in Opposition to
refute Plaintiff’s showing that the website was inaccessible to
Plaintiff on February 20, 2017.”
5
The trial court rejected appellant’s claim that there was a
triable issue whether its website provided appropriate auxiliary
aids. The court noted appellant provided an email address and a
phone number on its website. The court found “the provision of
an email or phone number does not provide full and equal
enjoyment of Defendant’s website (42 U.S.C. § 12182(a)), but
rather imposes a burden on the visually impaired to wait for a
response via email or call during business hours rather than have
access via Defendant’s website as other sighted customers. Thus,
the email and telephone options do not provide effective
communication ‘in a timely manner’ nor do they protect the
independence of the visually impaired. (28 C.F.R.
§ 36.303(c)(ii).)”
The trial court rejected appellant’s contention that it could
not be compelled to redesign its website to conform to voluntary
Web Content Accessibility Guidelines (WCAG) promulgated by
the WorldWide Web Consortium, a nongovernmental consortium.
It also rejected appellant’s characterization of the complaint as
Thurston’s attempt to equate a violation of the voluntary
guidelines with a violation of the law. “While Plaintiff addresses
the WCAG guidelines, the Complaint does not seek to hold
Defendant liable for violating their provisions. Rather, the
Complaint merely references the WCAG guidelines . . . , but does
not expressly seek to hold Defendant liable for violating these
guidelines. Rather, the Complaint seeks to prevent Defendant
from violating the Unruh [Civil Rights] Act . . . . Plaintiff has
established that Defendant’s website was not accessible under
the ADA. Defendant could have, but failed to, adduce evidence
that its website was accessible within the standards imposed by
6
the ADA on February 20, 2017 when Plaintiff accessed the
website.”
The trial court granted Thurston’s motion for summary
judgment, and denied appellant’s separately filed cross-motion
for summary judgment as moot. The court noted that
“Defendant’s constitutional arguments in its separate motion are
not sufficient to demonstrate that it did not violate the ADA, and
therefore we need not reach these issues.” The court also
declined to apply the primary jurisdiction doctrine, which permits
a court to dismiss a complaint pending resolution of an issue
before an administrative agency with special competence. The
court noted it was “ ’unknown when, if at all, the [Department of
Justice (DOJ)] will issue regulatory standards addressing the
ADA’s standards governing website access.’ ” The court further
found “Plaintiff has established standing under the Unruh Act.”
DISCUSSION
In an appeal from a grant of summary judgment, we
“independently examine the record in order to determine whether
triable issues of fact exist to reinstate the action.” (Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
In performing our review, we view the evidence in the light most
favorable to the losing party, and resolve any evidentiary doubts
or ambiguities in its favor. (Ibid.)
“We will affirm an order granting summary judgment or
summary adjudication if it is correct on any ground that the
parties had an adequate opportunity to address in the trial court,
regardless of the trial court’s stated reasons.” (Securitas Security
Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th
115, 120.)
7
Legal issues are reviewed de novo. (Crocker National Bank
v. City and County of San Francisco (1989) 49 Cal.3d 881, 888
[“Questions of law relate to the selection of a rule; their
resolution is reviewed independently.”].) Similarly,
constitutional issues are reviewed de novo. (State of Ohio v.
Barron (1997) 52 Cal.App.4th 62, 67.)
We review the grant of a permanent injunction for abuse of
discretion. (Horsford v. Board of Trustees of Cal. State University
(2005) 132 Cal.App.4th 359, 390.)
I. Title III Applies to Appellant’s Website.
Title III of the ADA provides: “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” (42 U.S.C.
§ 12182(a).)
Discrimination includes “a failure to take such steps as
may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of
auxiliary aids and services, unless the entity can demonstrate
that taking such steps would fundamentally alter the nature of
the good, service, facility, privilege, advantage, or accommodation
being offered or would result in an undue burden.” (42 U.S.C.
§ 12182(b)(2)(A)(iii).) DOJ regulations require that a public
accommodation “furnish appropriate auxiliary aids and services
where necessary to ensure effective communication with
individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).)
“Auxiliary aids and services” includes “accessible electronic and
8
information technology” and “other effective methods of making
visually delivered materials available to individuals who are
blind or have low vision.” (28 C.F.R. § 36.303(b)(2).) A screen
reader is an auxiliary aid. (Ibid.)
It is undisputed that appellant’s physical location—the
restaurant—is a place of public accommodation within the
meaning of Title III. (42 U.S.C. § 12181(7)(B) [“a restaurant, bar,
or other establishment serving food or drink” is a place of public
accommodation].)
In the absence of a controlling United States Supreme
Court or California Supreme Court opinion, we may “make an
independent determination of federal law.” (Forsyth v. Jones
(1997) 57 Cal.App.4th 776, 782–783.) Where the federal circuits
are in conflict, the decisions of the Ninth Circuit are entitled to
no greater weight than those of other circuits. (Ibid.)
Among the United States Circuit Courts of Appeals, there
is essentially a three-way split whether websites qualify as places
of public accommodation within the meaning of Title III. The
Third Circuit has excluded websites from coverage, holding “[t]he
plain meaning of Title III is that a public accommodation is a
place” and “public accommodation” does not “refer to non-physical
access.” (Ford v. Schering-Plough Corp. (3rd Cir. 1998) 145 F.3d
601, 612, 614 (Ford).)
The intermediate position holds that websites are covered
by the ADA only if there is a nexus between the website and
access to a physical place of public accommodation. (Robles v.
Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905–906
(Domino’s).) The nexus courts explain that discrimination
occurring “offsite” violates the ADA if it prevents disabled
individuals from enjoying services a defendant offers from a
9
physical place of public accommodation. Variations on the theme
of websites having a nexus to a physical space have been
expressed by the Sixth and Eleventh Circuits. (Parker v.
Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006, 1011 &
fn. 3; Rendon v. Valleycrest Productions, Ltd. (11th Cir. 2002)
294 F.3d 1279, 1284–1285 & fn. 8 (Rendon).) Thus, in Rendon,
for example, potential contestants for the television show “Who
Wants To Be A Millionaire?” applied to be selected for the show
by using an automated call-in system. Deaf and mobilityimpaired
applicants could not use the call-in system. The
Eleventh Circuit found the plaintiff had stated a valid claim that
that the inaccessible call-in system deprived the disabled
applicants from enjoying the privilege of being on the show,
which was filmed at a studio located in New York City. (Rendon,
at pp. 1280, 1286.) In Domino’s, the ADA applied to Domino’s
website and app, which customers used to order pizza, a product
sold at Domino’s physical restaurants. (Domino’s, at p. 905–906.)
The third and most expansive holdings are from the First,
Second, and Seventh Circuits, which have found that a “place of
public accommodation” need not be a physical space and a nexus
to physical space is not required. (Carparts Distri. Ctr. v.
Automotive Wholesaler’s (1st Cir. 1994) 37 F.3d 12, 19–20; Doe v.
Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557, 559
[place of public accommodation encompasses both physical and
electronic space and applies to websites]; Pallozzi v. Allstate Life
Ins. Co. (2d Cir. 1999) 198 F.3d 28, 32 [Title III was “meant to
guarantee . . . more than mere physical access.”].)
We have found no controlling authority from the California
Supreme Court. After oral argument in this case, the Court
decided White v. Square, Inc. (August 12, 2019, S249248)
10
___ 5 Cal.5th ___ [2019 Cal. Lexis 5946] (White). White did not
involve discrimination based on disability or a claim under the
ADA; instead, it involved a plaintiff who attempted to use a
website that excluded him because of his occupation. The website
was not connected to a brick-and-mortar physical location. The
question presented was whether plaintiff had standing to sue
under the Unruh Civil Rights Act when he visited a website with
the intent of using its services, encountered terms and conditions
that allegedly denied him full and equal access to its services,
and then left the website without entering into an agreement
with the service providers. (White, supra, ___ 5 Cal.5th at p. ___
[2019 Cal. Lexis 5946, pp. *2–*3].) In finding standing, our Court
held that “[i]n 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
purpose of standing, equivalent to presenting oneself for services
at a brick-and-mortar store.” (Ibid.)
A. At a Minimum, Title III Covers a Website With a Nexus
to a Physical Place of Public Accommodation.
Appellant urges us to adopt the position of the Third
Circuit in Ford and hold that Title III applies only to physical
places of accommodation and not to non-physical access to the
goods or services of a place through off-site means such as
websites. We decline to adopt what is clearly the minority
position, and one which has failed to persuade any other federal
court of appeal. We, too, find it unpersuasive.
11
The court in Ford, like other courts in the late 1990’s, was
faced with a claim that Title III applied to the contents of an
insurance policy because the policy was a good or service offered
by a place of public accommodation (an insurance office). In this
unusual context, the Third Circuit reached the narrow holding
that “the provision of disability benefits by [the insurance
company] to [plaintiff’s employer’s] employees does not qualify as
a public accommodation.” (Ford, supra, 145 F.3d at p. 614.)1
To buttress this conclusion, the Third Circuit stated the
definition of public accommodation was clear and unambiguous,
and referred solely to a physical place. The court expressed its
belief that even if the definition were ambiguous, the statute
should be interpreted in a manner “ ‘to avoid the giving of
unintended breadth to the Acts of Congress.’ [Citation.]” (Ford,
supra, 145 F.3d at p. 614.)
We agree with the numerous courts which have found the
definition of public accommodation clear and unambiguous, and
encompassing more than a physical place. Title III applies to
“services . . . privileges, advantages, or accommodations of” a
place of public accommodation. (42 U.S.C. §12182(a).) As the
Ninth Circuit has pointed out, “ ’The statute applies to the
services of a place of public accommodation, not services in a
place of public accommodation. To limit the ADA to
discrimination in the provision of services occurring on the
1 As then-Judge Alito observed in his concurring opinion, the
issue of whether Title III covered anything more than physical
access had divided the circuits, and it might have been better to
“reserve judgment until we are confronted with a case in which
the unique considerations of insurance plans are not at stake.”
(Ford, supra, 145 F.3d at p. 615.)
12
premises of a public accommodation would contradict the plain
language of the statute.’ [Citation.]” (Domino’s, supra, 913 F.3d
at p. 905.)
Even if the Third Circuit’s different understanding of the
phrase showed ambiguity, we would find unconvincing the court’s
definition of “place of public accommodation.” The Third Circuit’s
narrow construction of the phrase is unwarranted. The ADA is a
remedial statute and as such should be construed broadly to
implement its fundamental purpose of eliminating discrimination
against individuals with disabilities. (Hason v. Medical Bd. of
California (9th Cir. 2002) 279 F.3d 1172; see also Tcherepnin v.
Knight (1967) 389 U.S. 332, 336 [recognizing the “familiar canon
of statutory construction that remedial legislation should be
construed broadly to effectuate its purposes”].) More specifically,
the United States Supreme Court has explained the legislative
history of the definition of public accommodation clearly indicates
the term should be construed liberally. (PGA Tour, Inc. v. Martin
(2001) 532 U.S. 661, 676–677.)2
Although much has changed between 1990 when Congress
passed the ADA, and 1998 when the Third Circuit issued the
Ford opinion, even more has changed between 1998 and 2019.
“[W]eb-based services did not exist when the ADA was passed in
1990.” (National Ass’n of the Deaf v. Netflix, Inc. (D. Mass. 2012)
869 F.Supp.2d 196, 200.) The United States Supreme Court
characterized the growth of the Internet from its inception
through 1997 as “extraordinary.” (Reno v. American Civil
2 (PGA Tour, Inc. v. Martin, supra, 532 U.S. at p. 677, fn. 25,
citing S.Rep. No. 101–116, p. 59 (1989); H.R.Rep. No. 101–485,
pt. 2, p. 100 (1990).)
13
Liberties Union (1997) 521 U.S. 844, 850.) In 2018, the U.S.
Supreme Court again weighed in on the importance of the
Internet, noting that its “prevalence and power have changed the
dynamics of the national economy.” (South Dakota v. Wayfair,
Inc. (2018) 138 S.Ct. 2080, 2097 [also noting that in 1992 less
than 2 percent of Americans had Internet access but by 2018
about 89 percent had such access].)
As early as 2001, the Second Circuit noted, “Computer and
Internet access have become virtually indispensable in the
modern world of communications and information gathering.”
(U. S. v. Peterson (2d Cir. 2001) 248 F.3d 79, 83.) By 2012, courts
recognized “business is increasingly conducted online.” (National
Ass’n of the Deaf v. Netflix, Inc., supra, 869 F.Supp.2d at p. 200.)
The Internet today is ubiquitous. In 2019, for example, Domino’s
website and app were “two of the primary (and heavily
advertised) means of ordering Domino’s products.” (Domino’s,
supra, 913 F.3d at p. 905.)
Congress has specifically noted in the ADA’s “findings of
fact” that “individuals with disabilities continually encounter
various forms of discrimination, including outright intentional
exclusion, the discriminatory effects of architectural,
transportation, and communication barriers,” the very sorts of
discrimination the statute seeks to redress. (42 U.S.C.
§ 12101(a)(5); see Rendon, supra, 294 F.3d at p. 1286.) Congress
intended that the ADA “keep pace with the rapidly changing
technology of the times.” (See H.R.Rep. No. 101-485, 2d sess,
p. 391 (1990).) “In a society in which business is increasingly
conducted online, excluding businesses that sell services through
the Internet from the ADA would ‘run afoul of the purposes of the
ADA and would severely frustrate Congress’s intent that
14
individuals with disabilities fully enjoy the goods, services,
privileges and advantages, available indiscriminately to other
members of the general public.’ ” (National Ass’n of the Deaf v.
Netflix, Inc., supra, 869 F.Supp.2d at p. 200.) Excluding websites
just because they are not built of brick and mortar runs counter
to the purpose of the statute.
We hold that including websites connected to a physical
place of public accommodation is not only consistent with the
plain language of Title III, but it is also consistent with
Congress’s mandate that the ADA keep pace with changing
technology to effectuate the intent of the statute. The trial
court’s ruling that the ADA applies to appellant’s website is
consistent with our holding.
Thurston urges us to go farther and hold that Title III can
apply to websites independent of any connection between the
website and a physical place, as the First, Second and Seventh
Circuits have found. Here appellant’s website provides
information and services connected to The Whisper Lounge, a
specific restaurant and bar and a physical place to which the
public has access. The website would be just a fictional page on
the Internet if it provided menus and other information and
services for a restaurant and bar that did not exist. Accordingly,
we need not consider here the wholly hypothetical question
whether Title III of the ADA governs a website unconnected to a
physical place of public accommodation offering only purely
Internet-based services or products.
B. The Undisputed Facts Show a Sufficient Nexus Between
Appellant’s Website and Its Restaurant.
Appellant contends that even if the ADA applies to a
website which has a nexus to a physical location, there is no
15
sufficient nexus here because “a mere association with a public
accommodation is not sufficient to establish a nexus between the
Website and the restaurant in the circuits ascribing to this theory
of public accommodation.” Instead, appellant argues the website
must be so integrated with the physical place that the website is
an extension of the services of the physical location.
In National Federation of the Blind v. Target Corp. (N.D.
Cal. 2006) 452 F.Supp.2d 946, the district court found Target’s
website was “heavily integrated with the brick-and-mortar stores
and operates in many ways as a gateway to the stores” (id. at
p. 955) and, through that website, customers could “refill a
prescription or order photo prints for pick-up at a store, and print
coupons to redeem at a store.” (Id. at p. 949.) Appellant views
these website options as an extension of the services of the
physical Target stores, and contends such an extension is
required to establish a sufficient nexus. Appellant argues its
website is not an extension of the services offered by its dine-in
only restaurant because a customer “could not order a meal and
have it delivered.”
Appellant has taken the quote about integration out of
context.3 Moreover, appellant has not shown that its website is
less integrated than Target’s. Appellant is not a meal delivery
3 The court made this statement as part of distinguishing
Stoutenborough v. National Football League, Inc. (6th Cir. 1995)
59 F.3d 580. The full quote is “Unlike in Stoutenborough, where
there ‘service’ was offered by a separate party leasing the public
space, the challenged service here is heavily integrated with the
brick-and-mortar stores and operates in many ways as a gateway
to the stores.” (National Federation of the Blind v. Target Corp.,
supra, 452 F.Supp.2d at pp. 954–955.)
16
service like Domino’s Pizza; it is a dine-in restaurant. We see no
significant difference between ordering a refill of a prescription or
prints of photos via Target’s website and studying the menu and
making a reservation for a meal at appellant’s restaurant. In
both cases, the customer is simply speeding up his experience at
the physical location: his prescription or photos will be ready
when he arrives at Target and his table will be ready when he
arrives at the Whisper Lounge.
Appellant argues that “one could not even make a
reservation on the Website without leaving it for the website of
OpenTable.” The record does not establish the business
relationship between appellant’s website and
www.OpenTable.com. The only evidence of the relationship
between OpenTable and appellant came from the deposition
testimony of Christopher Baccus, Senior Vice President of Digital
Marketing for appellant’s management company. Baccus was
responsible for oversight and management of digital marketing,
including the online presence of appellant and appellant’s
website. He testified at one point that clicking the reservation
button on appellant’s website “would open up the restaurant’s
page on OpenTable.” This description does not support the sort
of formal separation appellant implies on appeal, and nothing in
Baccus’s statement shows that OpenTable could not or would not
modify a restaurant’s page at the restaurant’s request. He
testified only that the “page for OpenTable had already been
established before I joined [appellant’s restaurant], and there
have not been any changes that have needed to be made since
I’ve been there.”
17
More importantly, appellant offers no legal support for its
theory that it cannot be liable for ADA discrimination if it hires
someone else to do the discrimination. In the trial court,
appellant only cited to section 12182 generally to support this
claim. We note a cursory reading of title 42 of the United States
Code section 12182 suggests the opposite. Subsection (b)(1)(A)(i),
entitled General Prohibition – Activities–Denial of Participation,
provides “It shall be discriminatory to subject an individual or
class of individuals on the basis of a disability or disabilities of
such individual or class, directly, or through contractual,
licensing, or other arrangements, to a denial of the opportunity of
the individual or class to participate in or benefit from the goods,
services, facilities, privileges, advantages, or accommodations of
an entity.” (Italics added.)
Nevertheless, the Target opinion is not the last word on
this issue in the Ninth Circuit. The Ninth Circuit has recently
considered the application of the ADA to websites and apps and
although it cites Target for the general proposition that the ADA
is not limited to discrimination occurring on the premises of a
place of public accommodation, it does not otherwise incorporate
the reasoning of that case. (Domino’s, supra, 913 F.3d at p. 905.)
The Ninth Circuit stated its nexus requirement very broadly:
“We agree with the district court in this case—and the many
other district courts that have confronted this issue in similar
contexts—that the ADA applies to Domino’s website and app,
which connect customers to the goods and services of Domino’s
physical restaurants.” (Id. at pp. 905–906, fn. omitted [listing
district court cases, including Target].) That is indisputedly the
situation with appellant’s website and its restaurant: the website
connects customers to the services of the restaurant.
18
II. Plaintiff’s and the Trial Court’s References to
Nongovermental Guidelines Did Not Violate
Appellant’s Due Process Rights.
The Department of Justice has not promulgated
regulations specifying technical standards for ADA-compliant
websites. However, the World Wide Web Consortium, a
nongovernmental consortium, has published voluntary Web
Content Accessibility Guidelines (WCAG) to assist interested
parties in creating and maintaining websites accessible to
individuals with disabilities. The version in effect when
Thurston attempted to use appellant’s website was WCAG 2.0.
Appellant contends the trial court “equated” ADA
compliance with WCAG 2.0 compliance; based its finding of
liability on appellant’s non-compliance with WCAG 2.0; and
issued an injunction mandating compliance with WCAG 2.0.
Appellant argues these rulings violated its constitutional right to
due process of law by denying it fair notice of conduct that is
forbidden or required.
Appellant acknowledges the trial court expressly found
“the Complaint does not seek to hold Defendant liable for
violating [WCAG].” Appellant nevertheless contends the only
reasonable inference from Thurston’s statements in her various
pleadings is that the trial court determined appellant violated the
ADA by violating the WCAG 2.0 guidelines. Appellant adds
“Certainly, the injunction leaves no doubt that the trial court is
enforcing those guidelines as if they were the law.”
The trial court did not conflate the WCAG 2.0 guidelines
with the law. There was no violation of appellant’s due process
rights.
19
A. The Trial Court Could and Did Disregard Surplus
Comments Thurston Made About The WCAG 2.0
Guidelines.
Although Thurston frequently referred to the WCAG 2.0
guidelines, she always did so in connection with her
inaccessibility claims. Appellant repeatedly omits key phrases of
Thurston’s statements to make it appear otherwise. Appellant
claims the complaint alleges “ ‘[w]ithout [WCAG 2.0 compliance],
a website will be inaccessible to a blind or visually-impaired
person using a screen reader.’ (AA 18)” This statement is taken
from the general factual allegations of the complaint; the
unedited version reads: “Without these very basic components, a
website will be inaccessible to a blind or visually-impaired person
using a screen reader.” These basic “components” are technical
elements of a website which permit the screen reader to work; the
complaint alleges they are “recommend[ed]” by the WCAG 2.0
Guidelines.4 Although Thurston attributes the inaccessibility of
appellant’s website to its failure to incorporate these components,
it is the inaccessibility of the website for which she is seeking
redress.
Appellant similarly claims that in Thurston’s summary
judgment motion she “asked the court to grant her motion
because ‘Defendant’s website . . . violates the WCAG 2.0
4 For example, one component described in the complaint is
alternative text, invisible code that describes a graphical image
and enables the screen reader to vocalize the description of the
picture a sighted viewer would see. Thurston’s screen reader was
unable to provide her with a vocal description of the graphics on
appellant’s website and Thurston attributed this failure to the
lack of alternative text in the website.
20
Guidelines.” As the unedited statement shows, Thurston asked
the court to “grant this Motion as Defendant’s website is
inaccessible and violates the WCAG 2.0 Guidelines.” Thurston’s
primary complaint is that the website is inaccessible.
Appellant’s summary of Thurston’s expert witness
declaration also omits key facts. Appellant claims the expert
witness listed purported violations of WCAG 2.0 as evidence of
ADA violations. It would be more accurate to say the expert
described accessibility issues with appellant’s website, and also
stated the issues violated WCAG 2.0 guidelines. For example,
the expert stated he “found instances of improperly labeled
images. This is a violation of WCAG 2.0 1.1.1. Images that
are . . . serving as links are not properly labeled with descriptive
Alt text, making it impossible for a screen reader user to
understand exactly what action the link will perform or to where
the screen reader user will be lead.” Thus, the violation of the
ADA is not the failure to follow a specific guideline, but the
inaccessibility that results when a screen reader cannot access
and understand an improperly labeled image.
At most, Thurston’s statements indicate she was seeking to
hold appellant liable on two bases: the inaccessibility of the
website and the failure to comply with WCAG 2.0 guidelines.
The trial court clearly rejected liability based on non-compliance
with the guidelines and premised liability on the website’s
inaccessibility.
B. The Specification of WCAG 2.0 Guidelines in the
Injunction Does Not Support or Show a Due Process
Violation.
Appellant contends the injunction’s mandate to comply
with WCAG 2.0 guidelines “implies that [appellant] should have
21
known such compliance was legally required.” We think the
more obvious implication is that the trial court determined
appellant could not or would not redesign its website to comply
with ADA standards without specific guidance, and so it selected
what it believed to be a widely used technical standard to provide
the needed guidance.
Relying on Fortyune v. City of Lomita (9th Cir. 2014)
766 F.3d 1098, appellant suggests the Ninth Circuit has “noted
that due process constrains remedies that [maybe] imposed for
lack of access, and cautioned that in crafting a remedy, a court
must ‘consider carefully’ what level of accessibility the defendant
should have known was legally required.” To the extent
appellant relies on Fortyune to show due process prohibited the
court from ordering it to comply with WCAG 2.0 guidelines,
recent and more specific Ninth Circuit case law belies that
reliance. In Domino’s, after reviewing the statute and DOJ
pronouncements on the statute, the Ninth Circuit made clear
that “at least since 1996, Domino’s has been on notice that its
online offerings must effectively communicate with its disabled
customers and facilitate ‘full and equal enjoyment’ of Domino’s
goods and services.” (Domino’s, supra, 913 F.3d at p. 907.) The
same can be said of appellant and The Whisper Lounge. A court
“can order compliance with WCAG 2.0 as an equitable remedy if,
after discovery, the website and app fail to satisfy the ADA.”
(Ibid.)
22
III. Whether Appellant’s Alternate Means of
Communication Would Be Effective Is Not a Triable
Issue of Fact.
Appellant contends summary judgment must be reversed
because there is a triable issue of fact whether appellant’s
provision of a telephone number and email address on its website
was a reasonable means of satisfying the “effective
communications” mandate of the ADA. As stated above, DOJ
regulations require that a public accommodation “furnish
appropriate auxiliary aids and services where necessary to
ensure effective communication with individuals with
disabilities.” (28 C.F.R. § 36.303(c)(1).)
To create this claim, appellant parses together several
different concepts. First, appellant decides any discrimination in
this case should be evaluated under title 42 of the United States
Code, section 12182 subdivision (b)(2)(A)(ii), which defines
discrimination as “a failure to make reasonable modifications in
policies, practices and procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with
disabilities . . . .” Appellant leans heavily on the use of the word
“reasonable” in this section, arguing that “ ‘[r]easonableness is
generally a question of fact to be resolved by a jury.’ ” It is not
clear, however, that “policies, practices and procedures” were the
problem here.
The more directly applicable provision is subdivision
(b)(2)(A)(iii), which defines discrimination as “a failure to take
such steps as may be necessary to ensure that no individual with
a disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence
23
of auxiliary aids and services, unless the entity can demonstrate
that taking such steps would fundamentally alter the nature of
the good, service, facility, privilege, advantage, or accommodation
being offered or would result in an undue burden.” This is also
the language upon which the trial court based its grant of
summary judgment.5 Even assuming there could be a triable
issue of fact on whether an individual is treated differently
within the meaning of that subdivision, there was no triable issue
in this case. Thurston offered undisputed evidence she was
treated differently than sighted users of the website due to the
absence of an auxiliary aid or service which made the website
readable by screen reader software. She could not “read” the
menu or make reservations instantly and at any time like sighted
users could. At best, she could only email the restaurant and
obtain a reply when the restaurant was open, or call the
restaurant during business hours.
Appellant argues it could comply with the ADA by
providing any type of auxiliary aid or service that ensured
effective communication and that there was a triable issue of fact
concerning whether the telephone number and email address
ensured effective communication. Appellant points to section
36.303(c)(1)(ii) of title 28 of the Code of Federal Regulation which
states: “The type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the method
of communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in
which the communication is taking place. A public
5 The trial court attributed the language to 28 C.F.R.
§ 36.303(a), not the statute. The language is found in both.
24
accommodation should consult with individuals with disabilities
whenever possible to determine what type of auxiliary aid is
needed to ensure effective communication, but the ultimate
decision as to what measures to take rests with the public
accommodation, provided that the method chosen results in
effective communication. In order to be effective, auxiliary aids
and services must be provided in accessible formats, in a timely
manner, and in such a way as to protect the privacy and
independence of the individual with a disability.”
Appellant focuses on the first part of title 28 Code of
Federal Regulations section, which describes the individualized
nature of the determination of what type of auxiliary aid is
necessary to ensure effective communication. It argues that it
“necessarily follows that, given this flexibility, a reasonableness
standard must govern.” Appellant also focuses on the ability of
the place of accommodation to select the type of auxiliary aid it
provides. The last sentence of title 28 of the Code of Federal
Regulation section 36.303(c)(1)(iii), however, makes it clear that
all aids and services “must be provided in accessible formats, in a
timely manner, and in such a way as to protect the privacy and
independence of the individual with a disability.” It was the lack
of these universal requirements upon which the trial court based
summary judgment, finding “the email and telephone options do
not provide effective communication ‘in a timely manner’ nor do
they protect the independence of the visually impaired. (28
C.F.R. § 36.303(c)(ii).)”
25
Thurston proposed as an undisputed material fact:
“Defendant’s telephone number does not provide the same
privacy and independence that a fully accessible website offers,
not the same hours. (Thurston Decl., [¶] 8).” Appellant disputed
the fact by arguing Thurston’s declaration lacked foundation,
and there was no evidence that the telephone number “would not
be answered or otherwise responded to. [¶] There is also no
evidence plaintiff would be required to disclose her disability via
phone or email, and she has no foundation for claiming the same
as she failed to take advantage of these options available to her.”
Appellant cited the Baccus deposition and Thurston’s
deposition to support this argument. Baccus was asked about the
telephone number: “[D]oes that just go to the restaurant itself?”
He replied: “Yes. There is only, I believe, one phone number for
the restaurant.” The restaurant was not open 24 hours a day;
this testimony is sufficient to establish that plaintiff could not
obtain information from the restaurant 24 hours a day.
Similarly, Baccus testified the email address on the website went
to the restaurant manager; the manager could not physically be
available 24 hours a day. Appellant did not offer any evidence
refuting Thurston’s statement that the use of a telephone number
or email would deprive her of independence. The use of either
required her to depend upon another person’s convenience to
obtain information. Thus, there was no triable issue of fact
whether appellant’s alternatives were timely or whether they
protected Thurston’s independence.
IV. Plaintiff Has Standing to Obtain an Injunction.
For the first time on appeal, appellant contends Thurston
lacked standing to “claim” prospective relief because she failed to
show she would be harmed in the future if the injunction were
26
not granted.6 Appellant has forfeited this claim by failing to
support it with appropriate legal citations or argument. To
demonstrate error, an appellant “must supply the reviewing court
with some cogent argument supported by legal analysis and
citation to the record.” (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 286–287.) “We are not obliged to make
other arguments for [appellant].” (Opdyk v. California Horse
Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
Assuming the claim were not forfeited and assuming a showing of
future harm is required, there is sufficient evidence to show that
plaintiff would suffer such harm.
6 The record does not indicate appellant ever argued
Thurston had failed to show a likelihood of future harm. As an
affirmative defense appellant asserted Thurston lacked standing
because she did not have a legitimate intent to access its website
other than to pursue litigation and lacked standing to visit any
areas of the website she did not personally visit prior to filing her
complaint. Appellant then moved for summary judgment on the
ground plaintiff lacked standing because she did not show she
was denied any right on the basis of her disability. The trial
court rejected that argument and found Thurston had established
standing. The California Supreme Court has now made clear
that a person who visit a website with the intent to use its
services and encounters conditions that exclude the person from
full and equal access to its services has standing under the
Unruh Civil Rights Act “with no further requirement that the
person enter into an agreement or transaction with the business.”
(White, supra, ___ 5 Cal.5th at p. ___ [2019 Cal. Lexis 5946,
p. *22].)
27
Appellant argues, without citation to relevant California
authority, that standing requirements for injunctions are uniform
under California law and require a prospect of future injury.
Appellant does not acknowledge or distinguish the substantial
body of law to the contrary. Code of Civil Procedure section 367,
for example, expressly provides that an action must “be
prosecuted in the name of the real party in interest, except as
otherwise provided by statute.” “ ’Standing requirements will
vary from statute to statute based upon the intent of the
Legislature and the purpose for which the particular statute was
enacted.’ (Midpeninsula Citizens for Fair Housing v. Westwood
Investors (1990) 221 Cal.App.3d 1377, 1385, 1387, 1389–1390,
1393 [271 Cal.Rptr. 99] [in a suit under a now modified unfair
competition statute, injury was not required, because the thenexisting
version of the statute expressly gave standing to ‘the
general public’ to sue for relief].)” (Blumhorst v. Jewish Family
Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000–1001.)
Appellant has not cited any cases discussing the
requirements for an injunction under the Unruh Civil Rights Act
and suggests no such case exists. If that is true, appellant makes
no argument for what those requirements should be: appellant
does not discuss the language, legislative intent or purpose of the
Unruh Civil Rights Act or Civil Code section 52, which authorizes
“any person aggrieved” to seek an injunction. Appellant does not
address our Supreme Court’s consistent holding that “ ‘the Act
must be construed liberally in order to carry out its purpose’ ” or
the fact that “[i]n light of its broad preventative and remedial
purposes, courts have recognized that ‘[s]tanding under the
Unruh Civil Rights Act is broad.’ ” (White, supra, __ Cal.5th __,
at p. __ [2019 Cal. Lexis 5946, p. *7].) Appellant’s only reference
28
to section 52 takes a short phrase out of context. Appellant
argues that “preventative relief cannot be ‘deemed necessary’ to
ensure [Thurston] is afforded a right of access” to the restaurant.
In fact, the language of section 52, subdivision (c)(3) authorizes a
complainant to seek preventative relief “as the complainant
deems necessary to ensure the full enjoyment of the rights
described in this section.”7 Thus, appellant has failed to
demonstrate error. (City of Santa Maria v. Adam, supra,
211 Cal.App.4th at pp. 286–287; Opdyk v. California Horse
Racing Bd., supra, 34 Cal.App.4th at p. 1830, fn. 4; In re
Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
In its reply brief, appellant shifts its emphasis and
acknowledges that Thurston has alleged sufficient future harm in
her complaint by stating “ ‘Plaintiff continues to be deterred on a
regular basis from accessing Defendant’s website.’ ” Appellant
7 Civil Code section 52, subdivision (c), provides in full:
“Whenever there is reasonable cause to believe that any person or
group of persons is engaged in conduct of resistance to the full
enjoyment of any of the rights described in this section, and that
conduct is of that nature and is intended to deny the full exercise
of those rights, the Attorney General, any district attorney or city
attorney, or any person aggrieved by the conduct may bring a
civil action in the appropriate court by filing with it a complaint.
The complaint shall contain the following: [¶] (1) The signature
of the officer, or, in his or her absence, the individual acting on
behalf of the officer, or the signature of the person aggrieved. [¶]
(2) The facts pertaining to the conduct. [¶] (3) A request for
preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order against
the person or persons responsible for the conduct, as the
complainant deems necessary to ensure the full enjoyment of the
rights described in this section.”
29
concedes Thurston has “ ‘standing to seek an injunction,’ ” but
appellant claims, “not to obtain one, because plaintiff has not
demonstrated, and cannot in light of the affirmative evidence of
lack of interest, ‘a likelihood [s]he will be harmed in the future if
the injunction is not granted.’ ” (Italics omitted.)
Assuming for the sake of argument that an injunction
under the Unruh Civil Rights Act required some evidence
Thurston intended to visit the website in the future, appellant
did not claim there was insufficient evidence of such an intent
during summary judgment proceedings and did not offer any
affirmative evidence of a lack of interest.
The record citation appellant provides on appeal is not
evidence of a lack of interest, and moreover was not identified in
opposition to Thurston’s motion for summary judgment. The
citation is to an undesignated portion of Thurston’s deposition,
where appellant’s counsel asks Thurston if “someone” in her
group “express[ed] an interest in going to The Whisper Lounge
for the holiday luncheon?” Thurston replied, “No. I just happened
to go through my list and just places I may write down and just
see what’s out there.” This does not in any way equate to a lack
of interest on Thurston’s part. To the contrary, it shows she was
interested in the restaurant.
In contrast, the trial court found Thurston’s declaration in
support of her summary judgment motion showed she tried to
access the website numerous times and repeatedly encountered
barriers. Her attempts began before and continued after her
lawsuit was filed. The last attempt shown by the record was a
few days before Thurston’s deposition in this matter. Thurston’s
statements that she visited the website periodically even after
the lawsuit began and always encountered barriers to access
30
track the allegation of her complaint that she “continues to be
deterred on a regular basis from accessing Defendant’s website.”
(See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 382 [“the pleadings may be read together with the factual
showings in the summary judgment proceeding for purposes of
discerning what is in issue” and “the factual submissions of the
parties must track” the allegations of the complaint].) Thus,
appellant’s claim that Thurston lacks standing fails factually as
well as legally.
V. The Injunction Is Not Overbroad or Uncertain.
Appellant argues the injunction goes “further than
absolutely necessary” to provide plaintiff relief because it
mandates compliance with WCAG 2.0 guidelines whether they
have anything to do with the particular barriers appellant
encountered. Appellant also contends given the nature of the
guidelines, it is impossible to determine what exactly constitutes
compliance.
Appellant has not cited authority for the proposition that it
is required to fix only those barriers which Thurston actually
encountered. Appellant made a variation of this argument in its
own motion for summary judgment, which the trial court
properly rejected. (See Chapman v. Pier 1 Imports (U.S.) Inc.
(9th Cir. 2011) 631 F.3d 939, 944.) As a practical matter, the first
barrier encountered by a user may prevent the user from being
able to navigate further and encountering additional barriers.
Appellant’s theory would require a user to bring a lawsuit for the
first barrier encountered, then once that barrier was removed,
bring another lawsuit for the next barrier encountered and so on.
There is no reason in law or logic to adopt such a theory.
31
Appellant also argues his expert might not agree with
plaintiff’s expert as to whether the website meets the WCAG 2.0
guidelines. Appellant has not cited authority for the novel legal
proposition that an injunction is overbroad or vague if in the
future the parties involved might disagree about whether the
enjoined party has fully complied with the injunction.
Further, although appellant complains generally that a
compliance determination will require expert testimony,
appellant does not explain how the need for experts is a bar to an
injunction. An expert would be necessary not just for the
compliance determination but for the compliance itself. Trial
courts routinely assess expert testimony.
Ultimately what appellant argues is that the trial court
should have applied the doctrine of primary jurisdiction and
dismissed or stayed the case until the Department of Justice
issues technical regulations. (See Clark v. Time Warner Cable
(9th Cir. 2008) 523 F.3d 1110, 1114 [discussing primary
jurisdiction doctrine].) The trial court rejected this claim and we
do as well. We agree with Domino’s, the Ninth Circuit’s recent
rejection of the application of the doctrine to a lawsuit involving a
website and app alleged to be inaccessible under the ADA. The
Ninth Circuit explained: “Our precedent is clear: ‘[E]ven when
agency expertise would be helpful, a court should not invoke
primary jurisdiction when the agency is aware of but has
expressed no interest in the subject matter of the litigation.
Similarly, primary jurisdiction is not required when a referral to
the agency would significantly postpone a ruling that a court is
otherwise competent to make.’ [Citation.] Both circumstances
are present here. [¶] First, DOJ is aware of the issue—it issued
the ANPRM [Advanced Notice of Proposed Rulemaking] in 2010
32
[citation] and withdrew it in 2017 [citation]. Second, DOJ’s
withdrawal means that the potential for undue delay is not just
likely but inevitable.” (Domino’s, supra, 913 F.3d at p. 910.)
Application of the primary jurisdiction doctrine “would
‘needlessly delay the resolution of’ [plaintiff’s] claims and
undercut efficiency, ‘the “deciding factor” in whether to invoke
primary jurisdiction.’ ” (Ibid.) The Ninth Circuit found
resolution of website accessibility issues “well within the court’s
competence” and noted out that “if the court requires specialized
or technical knowledge . . . the parties can submit expert
testimony.” (Id. at p. 911.)
Similarly, we find the trial court’s injunction mandating
compliance with WCAG 2.0 efficient and well within the court’s
competence to administer. The injunction is neither overbroad,
uncertain, nor unconstitutional.

Outcome: The judgment is affirmed. Respondent to recover costs on appeal.

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