Rios v. Webroot CA2/3 ( 2023 )

Filed 5/10/23 Rios v. Webroot CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROY RIOS, B310399
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 20STCV11891
WEBROOT INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid,
Victoria C. Knowles, and Richard H. Hikida for Plaintiff and
Appellant.
Vedder Price, James V. Garvey and Marie E. Christiansen
for Defendant and Respondent.
_________________________
Plaintiff Roy Rios appeals a judgment of dismissal entered
after an order sustaining defendant Webroot Inc.’s demurrer
to the operative complaint without leave to amend. Plaintiff
alleges Webroot violated the Unruh Civil Rights Act (Civ. Code,
§ 51 et seq., Unruh Act)1 by intentionally maintaining a retail
website that is inaccessible to visually impaired individuals. He
argues the trial court erred in concluding (1) the complaint fails
to allege sufficient facts to establish Webroot’s discriminatory
intent; and (2) the alleged inaccessibility of Webroot’s website
does not violate the Americans with Disabilities Act of 1990
(42 U.S.C. § 12101 et seq.) (the ADA), specifically title III of the
ADA (42 U.S.C. §§ 12181–12189) (Title III). Consistent with
the recent opinion of our colleagues in Division One, we conclude
(1) the alleged disparate impact of Webroot’s facially neutral
website is insufficient to establish intentional discrimination
under the Unruh Act; and (2) Webroot’s website does not
constitute a “place of public accommodation” (42 U.S.C.
§ 12182(a)) under Title III. (See Martinez v. Cot’n Wash, Inc.
(2022) 81 Cal.App.5th 1026, 1032–1033 (Martinez).) We affirm.
FACTS AND PROCEDURAL HISTORY
We draw the facts from the allegations of plaintiff’s
operative first amended complaint and other matters properly
subject to judicial notice. (Orange Unified School Dist. v. Rancho
Santiago Community College Dist. (1997) 54 Cal.App.4th 750,
764; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
“[W]e treat as true all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law.” (Freeman
1 Statutory references are to the Civil Code, unless otherwise
designated.
2
v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 178,
fn. 3.)
Webroot owns and operates a publicly accessible website
that “provides access” to its “array of products and services,
including descriptions of its products, amenities and services,
online shops, and many other benefits related to its products
and services.”2
Plaintiff is permanently blind. He must use screen reading
software to read website content and access the Internet. He
visited Webroot’s website both “to avail himself” of Webroot’s
goods and services and in connection with his work as a “ ‘tester’ ”
who “ ‘visit[s] places of public accommodation to determine their
compliance with Title III.’ ”
Webroot’s website “contains numerous access barriers
preventing [p]laintiff, and other blind and visually-impaired
individuals, from gaining equal access to the [w]ebsite.” Among
other things, the website is not designed to be read by screen
reading software, which “provides the only method by which a
blind person may independently access the [I]nternet.” Despite
several attempts in the months before filing his lawsuit, plaintiff
was denied “full and equal access” to Webroot’s website.
2 The complaint does not specify what products and services
Webroot offers to the public through its website. According
to a declaration offered by a Webroot executive, the company
is an “online business that sells Internet security products
to consumers and businesses.” Consistent with the complaint’s
allegations, the declaration states these products are “sold
through Webroot’s website, or through third-party retailers,
such as Amazon and Best Buy,” and “Webroot maintains no
brick-and-mortar retail presence.”
3
Plaintiff’s attorney sent a letter to Webroot notifying the
company about plaintiff’s disability and the inaccessibility of its
website. The letter invited Webroot to contact plaintiff’s counsel
to discuss the matter. Webroot did not respond to the letter
or address the “communication barriers” on its website. After
waiting 11 months, plaintiff filed this lawsuit against the
company.
Webroot challenged the pleading by demurrer, arguing
(1) its alleged maintenance of an inaccessible website, even after
being notified of the website’s inaccessibility, was insufficient
to establish intentional discrimination under the Unruh Act; and
(2) its website did not constitute a place of public accommodation
under Title III absent some “nexus” to a “physical place.”
The trial court sustained Webroot’s demurrer without leave
to amend and entered a judgment dismissing plaintiff’s lawsuit.
This appeal followed.
DISCUSSION
1. The Unruh Civil Rights Act
The Unruh Act provides: “All persons within the
jurisdiction of this state are free and equal, and no matter
what their . . . disability . . . are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments of every kind whatsoever.” (§ 51,
subd. (b).) “A plaintiff can recover under the [Unruh Act] on
two alternate theories: (1) a violation of the ADA (§ 51, subd. (f));
or (2) denial of access to a business establishment based on
intentional discrimination.” (Martinez v. San Diego County
Credit Union (2020) 50 Cal.App.5th 1048, 1059 (SDCCU);
Martinez, supra, 81 Cal.App.5th at p. 1035.)
4
2. The Alleged Facts Do Not Establish Intentional
Discrimination
Except when alleging a violation of the ADA, “ ‘a plaintiff
seeking to establish a case under the Unruh Act must plead and
prove intentional discrimination in public accommodations in
violation of the terms of the Act.’ ”3 (Koebke v. Bernardo Heights
Country Club (2005) 36 Cal.4th 824, 854 (Koebke), quoting Harris
v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175;
see Martinez, supra, 81 Cal.App.5th at p. 1036.) Critically,
“ ‘[a] disparate impact analysis or test does not apply to Unruh
Act claims.’ ” (Koebke, at p. 854, quoting Harris, at p. 1175; § 51,
subd. (c) [standards that are “applicable alike to persons of every
sex, color, race, religion, ancestry, national origin, or blindness
or other physical disability” are exempt from Unruh Act].) Thus,
our Supreme Court has instructed that a claimant may not “rel[y]
on the effects of a facially neutral policy on a particular group . . .
to infer solely from such effects a discriminatory intent.” (Koebke,
at p. 854.) Rather, the claimant must allege facts establishing
the defendant engaged in “ ‘willful, affirmative misconduct’ ” (id.
at p. 853) with the specific intent “to accomplish discrimination
on the basis of [a protected trait].” (Id. at p. 854.) Although
“evidence of disparate impact . . . ‘may be probative of intentional
discrimination in some cases,’ ” it will not alone establish
discriminatory intent. (Ibid., italics omitted; Martinez, supra,
81 Cal.App.5th at p. 1036.)
3 Unlike Title III, it is settled that the Unruh Act’s
protections extend to “all business establishments of every kind
whatsoever” (§ 51, subd. (b)), including a “website” with no nexus
to “a brick-and-mortar vendor.” (White v. Square, Inc. (2019)
7 Cal.5th 1019, 1027.)
5
Plaintiff contends his allegations regarding the
“pre-filing demand letter” are sufficient to establish intentional
discrimination under the Unruh Act. He argues these allegations
establish Webroot “knew of the accessibility problems” with
its website, but “nevertheless took no steps to address the
communication barriers.” He maintains this failure to act is
sufficient to demonstrate willful discrimination.
The plaintiff in Martinez made the same argument, relying
on substantively identical allegations in his complaint. (See
Martinez, supra, 81 Cal.App.5th at p. 1036 [plaintiff “argues the
[complaint’s] allegations establish [defendant] ‘ “failed to take
adequate actions to correct” ’ accessibility barriers in its website
‘ “even after being notified” ’ of them in correspondence from
[plaintiff’s] counsel”].) The Martinez court rejected that
argument, recognizing that “if, under the reasoning of Koebke,
[plaintiff] cannot establish [defendant’s] intent to discriminate
by showing only that its website does not allow visually impaired
individuals the same access available to those who are not
visually impaired (i.e., a disparate effect of a neutral structure),
it follows that [defendant’s] failure to address this disparate
effect likewise cannot establish [defendant’s] intent to
discriminate.” (Ibid., citing Koebke, supra, 36 Cal.4th at p. 854.)
This analysis is sound, and we agree that, under Koebke,
Webroot’s alleged failure to address the disparate effect of
the neutral structure of its website is insufficient to establish
intentional discrimination under the Unruh Act. (See § 51,
subd. (c); see also Belton v. Comcast Cable Holdings, LLC (2007)
151 Cal.App.4th 1224, 1229–1230, 1237–1239 (Belton) [offering
music services and television programming as a package without
an option to buy music services alone “applied equally to sighted
6
and blind subscribers,” was neutral on its face, and thus
not actionable despite alleged disproportionate impact on
blind people]; cf. Hankins v. El Torito Restaurants (1998) 63
Cal.App.4th 510, 518 [defendant’s policy was not neutral where
it allowed patrons who were not physically handicapped to use
a restroom on the second floor but denied access for physically
handicapped people to restroom on first floor].)
Plaintiff cites Ruiz v. Musclewood Property Investments,
LLC (2018) 28 Cal.App.5th 15 for the proposition that a
defendant’s knowledge of accessibility barriers coupled with the
defendant’s lack of action to eliminate such barriers constitutes
intentional discrimination. However, Ruiz involved a claim
under the Disabled Persons Act, section 54 et seq. (the DPA)
—not the Unruh Act—and the DPA does not require proof of
intentional discrimination. (Ruiz, at p. 21; see § 54.3, subd. (a)
[providing cause of action against “[a]ny person or persons,
firm or corporation who denies or interferes with admittance to
or enjoyment of the public facilities . . . or otherwise interferes
with the rights of an individual with a disability”]; Martinez,
supra, 81 Cal.App.5th at pp. 1037–1038.) Thus, the Ruiz court’s
observations about what facts may or may not support a finding
of intentional discrimination are dicta and plainly inadequate
to justify a departure from our Supreme Court’s articulation of
the intentional discrimination requirement under the Unruh Act.
(See Martinez, at p. 1038 [noting “Ruiz does not even mention
Koebke or the Unruh Civil Rights Act,” and holding dictum in
Ruiz is not persuasive insofar as it is “contrary” to Koebke].)4
4 For similar reasons, the Martinez court determined
Martinez v. Adidas America, Inc. (C.D.Cal. July 9, 2019,
7
We agree with Martinez—a defendant’s mere failure to
address known disparate effects of a policy is not alone sufficient
to establish intentional discrimination under the Unruh Act.
(Martinez, supra, 81 Cal.App.5th at p. 1038.) The complaint’s
allegations are insufficient to state an Unruh Act claim on this
basis.
3. Webroot’s Website Is Not a “Place of Public
Accommodation” under Title III
We now consider whether the complaint states a claim
under the Unruh Act based on an alleged violation of the ADA,
which does not require proof of intentional discrimination.
(Martinez, supra, 81 Cal.App.5th at pp. 1038–1039, citing
Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 673.)
The dispositive issue is whether a standalone website with
no connection to a physical location, like Webroot’s website,
constitutes a “place of public accommodation” under Title III.
(42 U.S.C. § 12182(a).) Like our colleagues in Division One,
we conclude it does not. (Martinez, supra, 81 Cal.App.5th
at p. 1053.)
No. EDCV 19-841 JGB (KKx)) 2019 WL 3002864 and Thurston
v. ClearPath Lending, Inc. (C.D.Cal. Jan. 28, 2019, No. SACV
18-2094 JVS (JDEx)) 2019 WL 366405 were not persuasive
authority, let alone sufficient to depart from our Supreme
Court’s clear pronouncement in Koebke. (See Martinez, supra,
81 Cal.App.5th at p. 1038 [noting these cases are “not binding,”
they “assess federal question jurisdiction, and therefore deal only
indirectly with the viability of a particular Unruh Civil Rights
Act claim,” and “neither of these cases analyzes the intent issue
in any depth, and thus neither is helpful on this point”].) We
likewise are not persuaded by these federal district court cases.
8
a. The statutory text
Title III “prohibits discrimination against disabled
individuals by private entities.” (SDCCU, supra, 50 Cal.App.5th
at p. 1059.) It 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).) To establish a
Title III violation, a plaintiff must show: (1) a covered disability;
(2) that “the defendant is a private entity that owns, leases, or
operates a place of public accommodation; and (3) the plaintiff
was denied public accommodations by the defendant because
of [the] disability.” (Molski v. M.J. Cable, Inc. (9th Cir. 2007)
481 F.3d 724, 730, italics added; accord, SDCCU, at p. 1060;
Martinez, supra, 81 Cal.App.5th at p. 1039.)
“The ADA defines the phrase ‘. . . public accommodation’
by enumerating 12 categories of covered ‘places’ and
‘establishments,’ giving nonexclusive examples of types
of enterprises falling into each category.” (SDCCU, supra,
50 Cal.App.5th at p. 1060, citing 42 U.S.C. § 12181(7)(A)–(L).)
The listed examples mainly consist of unambiguously physical
locations. (See, e.g., 42 U.S.C. § 12181(7)(A) [defining “public
accommodations” as “private entities” that “affect commerce,”
including “an inn, hotel, motel, or other place of lodging, except
for an establishment located within a building that contains
not more than five rooms for rent or hire and that is actually
occupied by the proprietor of such establishment as the residence
of such proprietor”]; accord, SDCCU, at p. 1060; Martinez, supra,
81 Cal.App.5th at p. 1040.) “The implementing regulations
9
similarly define a public accommodation by referring to a
‘facility,’ which is in turn defined as ‘all or any portion of
buildings, structures, sites, complexes, equipment, rolling
stock . . . or other real or personal property, including the
site where the building, property, structure, or equipment is
located.’ ” (SDCCU, at pp. 1060–1061, quoting 28 C.F.R. § 36.104(2019).)
“A website is not identified in any of the statutory
categories. This is not surprising as there were no commercial
websites when the ADA was enacted in 1990. But in the 30 years
since, websites have become central to American life. They are
widely used by both consumers and businesses to communicate
information and conduct transactions, and are now essential tools
in conducting daily affairs. Thus, the issue whether websites are
subject to ADA requirements has been the subject of a growing
number of lawsuits, judicial attention, and academic
commentary.” (SDCCU, supra, 50 Cal.App.5th at p. 1061,
fn. omitted; Martinez, supra, 81 Cal.App.5th at p. 1039.)
b. The federal circuit court split
The federal courts have reached “different conclusions”
as to “whether a website is a public accommodation,” expressing
“two main views” on the issue. (SDCCU, supra, 50 Cal.App.5th
at p. 1061.) “The different views stem primarily from the extent
to which the court adheres to the express statutory language or
whether it finds legislative history and intent to be paramount
considerations.” (Ibid.)
“One view (the minority view) is that websites are ‘public
accommodations’ within the meaning of the ADA. This approach
has been adopted by courts in the First, Second, and Seventh
Circuits.” (SDCCU, supra, 50 Cal.App.5th at p. 1062
10
[cataloguing cases].) For textual support, “[c]ourts adopting this
view have relied on the ‘service establishment[s]’ category of the
statutory definition, and particularly the fact that ‘travel service’
is contained in the illustrative list of these establishments
([42 U.S.C.] § 12181(7)(F) . . .), suggesting that Congress must
have contemplated a public accommodation would ‘include
providers of services which do not require a person to physically
enter an actual physical structure.’ ” (Ibid.; see, e.g., Carparts
Distribution Center v. Automotive Wholesaler’s Assn. (1st Cir.
1994) 37 F.3d 12, 19.) These courts, however, appear to be more
persuaded by what they perceive to be Congress’s necessary and
logical intention to protect disabled individuals in all commercial
transactions, regardless of where or how those transactions are
conducted. Thus, the First Circuit observed in Carparts that
“[i]t would be irrational to conclude that persons who enter an
office to purchase services are protected by the ADA, but persons
who purchase the same services over the telephone or by mail
are not. Congress could not have intended such an absurd
result.” (Carparts, at p. 19; see also Morgan v. Joint Admin. Bd.
(7th Cir. 2001) 268 F.3d 456, 459 [“The site of the sale is
irrelevant to Congress’s goal of granting the disabled equal access
to sellers of goods and services. What matters is that the good
or service be offered to the public.”].)
“The second view (the majority view) is that websites are
not ‘public accommodations’ under the ADA, but a denial of equal
access to a website can support an ADA claim if the denial has
prevented or impeded a disabled plaintiff from equal access to,
or enjoyment of, the goods and services offered at the defendant’s
physical facilities. This view has been adopted by courts in the
Third, Sixth, Ninth, and Eleventh Circuits.” (SDCCU, supra, 50
11
Cal.App.5th at p. 1063 [cataloguing cases].) “The courts adopting
this narrower statutory definition of a ‘public accommodation’
have relied on Congress’s explicit listing of the type of places
considered to be ‘public accommodations,’ and have emphasized
that essentially all of these categories describe a physical
location.” (Ibid., citing 42 U.S.C. § 12181(7)(A)–(L); see, e.g.,
Parker v. Metro. Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006,
1010 (Parker) [“As is evident by [42 U.S.C.] § 12181(7), a public
accommodation is a physical place.”].)
“With respect to [Title III]’s identification of ‘service
establishment[s]’ such as a ‘travel service,’ ” courts adopting the
majority view “have noted that under the statutory construction
canon ‘noscitur a sociis,’ a statutory term must be construed in
the context of the accompanying words, thus supporting that a
‘travel service’ also identifies a physical place.” (SDCCU, supra,
50 Cal.App.5th at p. 1063; see, e.g., Parker, supra, 121 F.3d
at p. 1014 [“To interpret these terms as permitting a place of
accommodation to constitute something other than a physical
place is to ignore the text of the statute and the principle of
noscitur a sociis.”]; Ford v. Schering-Plough Corp. (3d Cir. 1998)
145 F.3d 601, 614 (Ford); Weyer v. Twentieth Century Fox Film
Corp. (9th Cir. 2000) 198 F.3d 1104, 1114 (Weyer).)
While the majority view seeks primarily to adhere to
the statutory text, it also strives to give the broadest possible
construction to Title III consistent with the ADA’s remedial
purpose. (See SDCCU, supra, 50 Cal.App.5th at p. 1064; see
also Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 642
(Thurston), citing PGA Tour, Inc. v. Martin (2001) 532 U.S. 661,
676–677 (PGA Tour).) Courts embracing this view “recognize
that a website can be important to providing access to a
12
defendant’s public accommodation (physical premises) and to
a disabled person’s ability to use and enjoy services provided at
those places.” (SDCCU, at p. 1064.) Thus, “to the extent barriers
on the website impinge[ ] on the plaintiff’s ability to access such
benefits at a physical premises,” these courts hold a Title III
“claim can be actionable under a nexus theory.” (Ibid.; see, e.g.,
Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898,
905–906 (Robles) [“the ADA applies to Domino’s website and app,
which connect customers to the goods and services of Domino’s
physical restaurants”]; Weyer, supra, 198 F.3d at p. 1114 [because
the ADA covers only “actual, physical places where goods or
services are open to the public, and places where the public gets
those goods or services,” there must be “some connection between
the good or service complained of and an actual physical place”].)
“The rationale underlying the adoption of this nexus standard
mirrors many of the public policies discussed by the courts in
adopting the broader view that all websites are directly subject
to the ADA, e.g., that Congress would have intended this result
given the growing importance of websites for consumers and
businesses.” (SDCCU, at p. 1064.)
c. Martinez v. Cot’n Wash, Inc.
In Martinez, our colleagues in Division One addressed
an issue of first impression for our state courts in considering
whether a standalone website, with no connection to a physical
location where goods or services were offered to the public,
constituted a place of public accommodation under Title III.
(Martinez, supra, 81 Cal.App.5th at pp. 1034, 1039.)5 Like
5 The Martinez court noted then-existing “California case law
on this topic offer[ed] little guidance in navigating [the] federal
circuit split.” (Martinez, supra, 81 Cal.App.5th at p. 1041.)
13
plaintiff here, the plaintiff in Martinez sued the defendant under
the Unruh Act, alleging the defendant failed to remove access
barriers on its website that prevented blind individuals from
making full use of the site through screen reading software.
(Id. at p. 1034.) After considering the federal circuit split,
the statutory text, maxims of statutory construction, the ADA’s
remedial purpose, the legislative history, and relevant regulatory
action (or inaction), the Martinez court concluded a standalone
website does not constitute a place of public accommodation
under Title III. (Id. at pp. 1039–1041, 1043–1053.) In reaching
While at least “two California Courts of Appeal ha[d] applied
the nexus analytical framework in assessing whether a website
is a place of public accommodation,” neither case “provided an
occasion for the court to consider under what circumstances,
if any, a standalone website” satisfies the requirement, because
both courts “determined the requisite nexus existed.” (Ibid.;
see Thurston, supra, 39 Cal.App.5th at pp. 642–646 [affirming
summary judgment in plaintiff’s favor under nexus-based
approach where website was incompatible with plaintiff’s screen
reading software and inhibited her ability to access defendant’s
physical restaurant]; SDCCU, supra, 50 Cal.App.5th at pp. 1053,
1070–1071 [reversing judgment of dismissal where website was
incompatible with screen reading software and alleged defect
denied plaintiff equal access to bank’s physical locations]; see also
Belton, supra, 151 Cal.App.4th at p. 1238 [affirming summary
judgment for defendant cable provider against claim that
television programing in basic cable tier was inaccessible to
blind people; holding, “to state a claim under the ADA, plaintiffs
must show that they have been denied access to a place of public
accommodation and, as a matter of law, cable services are not
such a place”].)
14
this conclusion, the Martinez court rejected many of the same
arguments plaintiff makes in this appeal.
d. Plaintiff’s textual arguments
Like the plaintiff in Martinez, plaintiff argues
Webroot’s website satisfies the “place of public accommodation”
requirement under the plain language of Title III. Citing Robles
and Thurston, plaintiff emphasizes the statutory text refers
to services “ ‘of any place of public accommodation’ as opposed
to ‘at’ or ‘in’ ” a place of public accommodation. (Italics added;
see Robles, supra, 913 F.3d at p. 905; Thurston, supra, 39
Cal.App.5th at p. 642.) It is true that the Robles and Thurston
courts highlighted this distinction; however, they did so to
support their adoption of the nexus approach, which, as we have
discussed, requires that a website have some connection to the
services of a physical place of public accommodation to support
a Title III action. (See, e.g., Thurston, at pp. 642, 644.) As the
Robles court explained, the ADA requirement to provide auxiliary
aids “applies to [defendant’s] website and app, even though
customers predominantly access them away from the physical
restaurant: ‘The statute applies to the services of a place
of public accommodation, not services in a place of public
accommodation. . . .’ [¶] The alleged inaccessibility of
[defendant’s] website and app impedes access to the goods
and services of its physical pizza franchises—which are places
of public accommodation.” (Robles, at p. 905, first and last
italics added; see Thurston, at p. 642, quoting Robles.)
The nexus requirement recognized in Robles and Thurston
is consistent with “the plain meaning of the term ‘place,’ ”
which “the United States Supreme Court has recently noted . . .
connotes a physical space.” (Martinez, supra, 81 Cal.App.5th
15at p. 1044, citing Boy Scouts of America v. Dale (2000) 530
U.S. 640, 657, italics added.) As the Martinez court explained
in rejecting an argument much like the one plaintiff advances
here, “[d]ictionaries ‘overwhelmingly’ define ‘place’ as involving
a physical location. [Citation.] Neither Title III nor any
implementing regulations provide a different definition of
the word for the purposes of Title III. Nor does the state of
technology when the ADA was passed in 1990 suggest that
Congress was unaware that the term carried a connotation of
physical space and thus could exclude certain ‘sales and retail
establishments’ from the scope of Title III based on a lack of
connection to a physical space. ‘[T]here were countless . . .
businesses operating outside of brick-and-mortar premises
in 1990, including some that had been in operation for decades,’
such as mail order catalogs. [Citation.] Congress’s decision
to nevertheless use the phrase ‘place,’ the plain meaning of
which involves physical space, could easily be understood as
an intentional exclusion of businesses without any physical
presence from the scope of Title III.” (Martinez, at pp. 1044–
1045.) We agree with the Martinez court. Both “the plain
meaning” of the word “ ‘place,’ ” and “its meaning considered
in historical context,” refute plaintiff’s construction of the
statutory text.6 (Id. at p. 1045.)
6 Plaintiff suggests this analysis is somehow at odds with
the construction of the term “place” in Carolyn v. Orange Park
Community Assn. (2009) 177 Cal.App.4th 1090. We disagree.
The issue in Carolyn was whether a “series of recreational trails”
on portions of a private homeowner’s association’s “ ‘common
area’ ” constituted a place of public accommodation under
Title III. (Carolyn, at pp. 1093, 1104.) The Carolyn court
concluded they were not because the homeowner’s association
16
The term “facility” as defined in the ADA’s implementing
regulations likewise refutes plaintiff’s proposed construction.
As discussed, federal regulations define “place of public
accommodation” as “a facility operated by a private entity whose
operations affect commerce and fall within at least one of” the
12 categories listed in Title III. (28 C.F.R. § 36.104 (2022), italics
added.) These regulations in turn define “facility” as “all or any
portion of buildings, structures, sites, complexes, equipment,
rolling stock or other conveyances, roads, walks, passageways,
parking lots, or other real or personal property, including the site
where the building, property, structure, or equipment is located.”
(Ibid.) Plaintiff argues a website qualifies as “ ‘personal
property’ ” and therefore constitutes a “facility” under Title III.
We disagree. As the Martinez court explained in rejecting an
identical argument, “[t]he term ‘other . . . personal property’
appears at the end of a list of exclusively physical spaces and,
as to ‘equipment’ or other ‘personal property,’ presupposes
the existence of a ‘site where the . . . property . . . is located.’ ”
(Martinez, supra, 81 Cal.App.5th at p. 1046, quoting 28 C.F.R.
§ 36.104 (2022), italics added.) “Under the principles of noscitur
a sociis and expressio unius est exclusio alterius,” because a
“actively excluded the general public from using the trails.”
(Id. at p. 1104.) In reaching that conclusion, the court
naturally focused on the “public” aspect of “places of public
accommodation,” without concerning itself with whether such
places must be physical locations, as the trails plainly were. (See
ibid. [“Each of the examples listed in the ADA and the Health
and Safety Code illustrates the broader concept that places
of public accommodation are places designed and intended to
provide services, goods, privileges, and advantages to members
of the public.” (Italics added, fn. omitted.)].)
17
website is not a physical space like the other items listed in
the regulation, it “cannot constitute a ‘facility’ and thus, cannot
constitute a ‘place of public accommodation’ ” under Title III.
(Martinez, at p. 1046; see Henderson v. Mann Theatres Corp.
(1976) 65 Cal.App.3d 397, 403 [“[T]he expression of certain things
in a statute necessarily involves exclusion of other things not
expressed—expressio unius est exclusio alterius.”].)
e. Plaintiff’s policy arguments
Apart from the foregoing textual arguments, plaintiff
contends we must interpret the terms “place of public
accommodation” and “facility” to include Webroot’s standalone
website because, to do otherwise, would (1) defy the edict to
interpret the ADA liberally to achieve its remedial purpose;
(2) produce absurd results; and (3) contradict positions taken by
the Department of Justice (DOJ)—the regulatory agency charged
with implementing the ADA—in amicus briefs and other informal
guidance the agency has produced over the past 20 years.7 None
of these arguments is persuasive.
7 “DOJ is charged with issuing regulations concerning the
implementation of the ADA.” (Robles, supra, 913 F.3d at p. 903,
fn. 2, citing 42 U.S.C. § 12186(b) [“[T]he Attorney General
shall issue regulations in an accessible format to carry out
the provisions of this subchapter.”]; Bragdon v. Abbott (1998)
524 U.S. 624, 646 [DOJ is “the agency directed by Congress to
issue implementing regulations, [citation], to render technical
assistance explaining the responsibilities of covered individuals
and institutions, [citation], and to enforce Title III in court”].)
Plaintiff requests we take judicial notice of several amicus
briefs and other DOJ-related documents, including a DOJ
consent decree and recent guidance issued on the agency’s official
government website. We grant the request. (See Evid. Code,
§§ 459, subd. (a), 452, subds. (c) & (d) [authorizing judicial notice
18
“Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals.” (PGA Tour, supra,532 U.S. at pp. 674–675.) Consistent with that purpose, Title III
seeks “ ‘ “to bring individuals with disabilities into the economic
and social mainstream of American life . . . in a clear, balanced,
and reasonable manner” ’ and [to] afford ‘people with disabilities
. . . equal access to the array of goods and services offered by
private establishments and made available to those who do not
have disabilities.’ ” (Martinez, supra, 81 Cal.App.5th at p. 1047,
citing PGA Tour, at pp. 674–675; accord, Thurston, supra, 39
Cal.App.5th at pp. 642–643.) To achieve this end, Congress
not only concluded “there was a ‘compelling need’ for a ‘clear
and comprehensive national mandate’ to eliminate discrimination
against disabled individuals” (PGA Tour, at p. 675), but it
also “intend[ed] that the types of accommodation and services
provided to individuals with disabilities, under all of the titles
of [the ADA], should keep pace with the rapidly changing
technology of the times.” (H.R. Rep. No. 101-485, 2d Sess., p. 108
(1990), reprinted in 1990 U.S. Code Cong. & Admin. News,
pp. 303, 391.)
of “[o]fficial acts of the . . . executive . . . departments of the
United States” and “[r]ecords of . . . any court of record of
the United States”]; People v. Morales (2018) 25 Cal.App.5th
502, 511, fn. 7 [“courts may take judicial notice of information
published on official government websites”].) Plaintiff also
requests we take judicial notice of motions and orders filed in
the Martinez case. We will grant that request as well; however,
these records have limited relevance to the issues in this appeal.
(See Evid. Code, § 452, subd. (c) [authorizing judicial notice of
records of any court of this state].)
19
Plaintiff contends the ADA’s remedial purpose and
Congress’s aim to formulate the legislation in a way that would
keep pace with changing technology mandate that we interpret
the term “place of public accommodation” to include standalone
websites with no nexus to a physical location where goods
or services are offered to the public. We do not disagree with
the premise that lessening barriers disabled individuals face
in accessing electronic commerce would be consistent with
the general, overall goal of Title III. But acknowledging this
coherence does not give a court license to expand the statute’s
reach into areas that the statutory text—even broadly construed
—plainly does not touch. The Ninth Circuit cogently made this
point in Weyer to explain why the statutory text and canons of
statutory construction required some connection to a physical
place of public accommodation where the defendant offered its
goods or services:
“Title III provides an extensive list of ‘public
accommodations’ in [42 U.S.C.] § 12181(7),
including such a wide variety of things as
an inn, a restaurant, a theater, an auditorium,
a bakery, a laundromat, a depot, a museum,
a zoo, a nursery, a day care center, and a
gymnasium. All the items on this list, however,
have something in common. They are actual,
physical places where goods or services are
open to the public, and places where the public
gets those goods or services. The principle of
noscitur a sociis requires that the term, ‘place
of public accommodation,’ be interpreted within
the context of the accompanying words, and
20
this context suggests that some connection
between the good or service complained of
and an actual physical place is required.”
(Weyer, supra, 198 F.3d at p. 1114, first italics added; see also
Ford, supra, 145 F.3d at p. 614 [“the doctrine of noscitur a sociis”
directs that terms “should be interpreted by reference to the
accompanying words of the statute ‘to avoid the giving of
unintended breadth to the Acts of Congress’ ”].)
The Martinez court likewise recognized that “the mandate
to interpret [the statutory] language broadly, and in a manner
that takes into account changes in technology,” is not “a blanket
authorization to require anything that would achieve the ADA’s
overall goal of equal access.” (Martinez, supra, 81 Cal.App.5th
at p. 1048.) “[T]he law inherently involves a balancing of benefits
and burdens to different stakeholders” (ibid.), and a “statute may
provide a partial remedy for what Congress perceives as a social
problem because the proponents are compelled to compromise
with others who think a broader statute would be a worse social
problem” (Weyer, supra, 198 F.3d at p. 1112). Because “Congress
chose specific language,” and the statutory text is not susceptible
of an interpretation that “includ[es] digital websites,” the
Martinez court determined it could not “rely entirely on the
broad goals of the statute” to sanction a Title III action with
no connection to a physical place of public accommodation.
(Martinez, at p. 1048.) We agree with this analysis. (See also
Thurston, supra, 39 Cal.App.5th at p. 644 [“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
21
that the ADA keep pace with changing technology to effectuate
the intent of the statute.”].)
For similar reasons we are not persuaded that requiring
a connection to the goods or services of a physical place of public
accommodation inevitably frustrates the manifest purposes of
Title III or leads to absurd results that Congress could not have
intended. (Cf. In re Ge M. (1991) 226 Cal.App.3d 1519, 1523.) As
the Martinez court explained, “[b]ecause brick and mortar stores
conduct business differently than do retail websites, the type
and extent of the burdens antidiscrimination measures impose
on a business will necessarily differ depending on whether the
business is operating through a physical storefront or a purely
digital one.” (Martinez, supra, 81 Cal.App.5th at p. 1047.) Given
the “different burden-benefit calculus,” Congress could have
reasonably determined that Title III should address “only
physical retailers,” while leaving “the question of how to
properly balance the benefits and burdens of imposing similar
requirements on purely digital retailers” for future legislative
action after appropriate factfinding. (Martinez, at p. 1047;
see also id. at p. 1051.)
Plaintiff suggests this analysis is flawed because, in
plaintiff’s telling, “Congress has already struck a balance
by providing safeguards (inuring to the benefit of public
accommodations) for all ADA claims predicated upon the absence
of auxiliary aids and services in 42 U.S.C. § 12182(b)(2)(A)(iii).”
(Boldface omitted.) It is not clear what plaintiff means by
“inuring to the benefit of public accommodations” or what
relevance he believes the cited section has to the question
of whether a standalone website constitutes a place of public
accommodation. Section 12182(b)(2)(A) of title 42 of the
22
United States Code defines the conduct that constitutes
“Discrimination” under Title III and includes “the absence
of auxiliary aids.” (42 U.S.C., § 12182(b)(2)(A)(iii).) Because
auxiliary aids must be provided at physical locations under the
ADA, the fact that their absence can be the basis for a Title III
claim does nothing to establish that a standalone website may
also constitute a place of public accommodation. (See, e.g., Ariz.
ex rel. Goddard v. Harkins Amusement (9th Cir. 2010) 603 F.3d
666, 668 (Goddard) [“closed captioning and audio descriptions are
correctly classified as ‘auxiliary aids and services’ that a movie
theater may be required to provide under the ADA”].)
Finally, plaintiff commits a substantial portion of his
opening brief to summarizing (or quoting at length) amicus
briefs, settlement agreements, and consent decrees the DOJ has
filed in connection with Title III litigation over the past 20 years.
He contends this informal guidance from the regulatory agency
charged with enforcing the ADA “irrefutably confirms” there
need be “no ‘nexus’ ” between a business’s website and its
physical location to establish a Title III violation. We disagree.
While the United States Supreme Court has instructed
courts to afford substantial deference to formal agency
interpretations and adjudications, “[i]nterpretations such
as those in opinion letters—like interpretations contained in
policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law—do not warrant Chevron-style
deference.” (Christensen v. Harris County (2000) 529 U.S. 576,
587; see Chevron, U.S.A., Inc. v Natural Resources Defense
(1984) 467 U.S. 837, 842–845 [holding a court must give effect
to an agency’s regulation containing a reasonable interpretation
of an ambiguous statute].) Rather, informal agency
23
interpretations—like those proffered by plaintiff here—are
“ ‘entitled to respect’ . . . , but only to the extent that those
interpretations have the ‘power to persuade.’ ” (Christensen,
at p. 587; see Reno v. Koray (1995) 515 U.S. 50, 61 [internal
agency guideline, which is not “ ‘subject to the rigors of the
Administrative Procedure Act, including public notice and
comment,’ ” are entitled only to “some deference”].) As for
litigation briefs, the high court has “declined to give deference to
an agency counsel’s interpretation of a statute where the agency
itself has articulated no position on the question, on the ground
that ‘Congress has delegated to the administrative official and
not to appellate counsel the responsibility for elaborating and
enforcing statutory commands.’ ” (Bowen v. Georgetown Univ.
Hosp. (1988) 488 U.S. 204, 212 (Bowen); see also id. at p. 213
[“Deference to what appears to be nothing more than an agency’s
convenient litigating position would be entirely inappropriate.”];
Matz v. Household Intern. Tax Reduction Inv. Plan (7th Cir.
2001) 265 F.3d 572, 574 [“the IRS’ position in the amicus brief
was an informal agency policy pronouncement not entitled to
Chevron deference”].)
Our Supreme Court has similarly instructed that courts
must “independently judge the text of the statute” in question
and, while “an agency’s interpretation is one among several
tools available to the court,” it is “not binding or necessarily
even authoritative.” (Yamaha Corp. of America v. State Bd.
of Equalization (1998) 19 Cal.4th 1, 7–8.) “The deference
due an agency interpretation . . . turns on a legally informed,
commonsense assessment of [its] contextual merit” and
“ ‘will depend upon the thoroughness evident in [the agency’s]
consideration, the validity of its reasoning, its consistency with
24
earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.’ ” (Id. at
pp. 14–15, italics omitted.)
The DOJ “has previously endorsed the applicability of
Title III to ‘ “Web sites of public accommodations,” ’ but has
not provided specific regulatory guidance.” (SDCCU, supra, 50
Cal.App.5th at p. 1061, citing Robles, supra, 913 F.3d at pp. 903,
906–907, 910.) In 2010, the DOJ issued an “Advance Notice
of Proposed Rulemaking” on web accessibility to clarify private
entities’ “ ‘obligations to make . . . Web sites accessible.’ ” (Robles,
at p. 903; SDCCU, at p. 1061, fn. 5.) However, in 2017, the
agency withdrew its proposed website rule. (Robles, at p. 910.)
In explaining the withdrawal, the DOJ stated it “ ‘continue[s]
to assess whether specific technical standards are necessary
and appropriate to assist covered entities with complying with
the ADA.’ ” (Id. at p. 909, italics omitted; SDCCU, at p. 1061,
fn. 5.)
The Martinez court recently addressed what to make
of DOJ and congressional inaction regarding “confusion in the
[federal] courts” over whether a standalone website should be
considered a “ ‘place of public accommodation’ ” under Title III.
(Martinez, supra, 81 Cal.App.5th at p. 1049.) The court noted
that as early as 2000, and later again in 2006, Congress held
hearings to consider “ ‘the new significance of the Internet
economy to recent economic growth, the costs that application
of the ADA would impose on that rapidly expanding segment of
the economy, and the substantial First Amendment implications
of applying the ADA to private Internet web sites and services.’ ”
(Ibid., quoting H.R. Rep. No. 106-1048, 2d Sess., p. 275 (2001);
see also Martinez, at p. 1049, citing Hearing before House Com.
25
on Judiciary, Subcom. on Constitution, 109th Cong., 2d Sess.,
at pp. 924–925 (Sept. 13, 2006).) These hearings included
testimony from the DOJ that “ ‘the ADA’s accessibility
requirements do apply to private Internet web sites and
services.’ ” (Martinez, at p. 1049.) However, when Congress
amended the ADA in 2008, it clarified only a different section
of the statute and “took no similar legislative action to clarify
‘place of public accommodation.’ ”8 (Martinez, at pp. 1049–1050.)
In 2010, a congressional committee expressly acknowledged the
need for clarification “and called upon the DOJ to act.” (Id. at
p. 1050, citing Hearing before House Com. on Judiciary, Subcom.
on Constitution, Civil Rights and Civil Liberties, 111th Cong.,
2d Sess., at p. 2 (Apr. 22, 2010).) Yet, despite that request,
the DOJ chose “not to exercise its rulemaking power” and,
instead, “continues to file amicus curiae briefs” and issue
8 Plaintiff contends the addition of “qualified readers, taped
texts, or other effective methods of making visually delivered
materials available to individuals with visual impairments”
to the definition of “Auxiliary aids and services” (42 U.S.C.,
§ 12103(1)(B)) in the 2008 amendment demonstrates Congress’s
intention to include standalone websites as places of public
accommodation under the ADA. (See Pub.L. No. 110-325(Sept. 25, 2008) 122 Stat. 3553.) As we have already noted,
this auxiliary aids argument is wholly unconvincing because
such aids, including those to make visually delivered materials
available to individuals with visual impairments, must be
provided at physical locations under the ADA. (See, e.g.,
Goddard, supra, 603 F.3d at p. 670 [at a movie theater “audio
descriptions clearly are auxiliary aids and services”; “audio
descriptions are ‘effective methods of making [. . . visually]
delivered materials available to individuals with [. . . visual]
impairments’ ”].)
26
informal guidance that is “ambiguous as to whether a brick
and mortar presence is necessary for a website to constitute
a ‘place of public accommodation.’ ” (Martinez, at pp. 1050–1051,
citing U.S. Dept. of Justice, Guidance on Web Accessibility,
and the ADA (Mar. 18, 2022) [as of July 29, 2022], boldface omitted.)
The Martinez court found the “only conclusion” to draw
from this failure to act was that neither Congress nor the DOJ
“officially endorses” the view that a standalone website is a place
of public accommodation under Title III. (Martinez, supra, 81
Cal.App.5th at p. 1051.) The court explained: “Congress’s failure
to provide clarification in the face of known confusion—and, to
a lesser extent, the DOJ’s similar failure—is not a reason for us
to step in and provide that clarification. To the contrary, it is
a reason for us not to do so. This is particularly true, given that
providing clarification in the manner [the plaintiff] requests
could have sweeping effects far beyond this case, none of which
has been the subject of legislative factfinding.” (Ibid., second
italics added.) As for the informal DOJ guidance that plaintiff
relies upon here, the Martinez court similarly concluded “such
nonbinding and case-specific pronouncements of the DOJ do not
provide a basis for us to do what Congress (and, for that matter,
the DOJ itself) has apparently made a conscious choice not
to do. . . . [U]nlike an amicus curiae brief, our interpretation
of the ADA will affect cases other than the one before us.”9
(Id. at p. 1052; accord, Bowen, supra, 488 U.S. at pp. 212–213.)
9 Plaintiff argues the Martinez court invoked a “ ‘particularly
weak barometer of legislative intent’ ” by focusing on Congress’s
failure to amend the ADA. (See Koebke, supra, 36 Cal.4th
at p. 849.) The argument misreads Martinez. As we have
27
We agree with the foregoing analysis and, like the
Martinez court, find the statutory text and maxims of statutory
construction compel the conclusion that Webroot’s standalone
website “is not a ‘place of public accommodation’ under Title III
as currently written,” notwithstanding the DOJ’s informal
guidance to the contrary. (Martinez, supra, 81 Cal.App.5th at
p. 1053.) The trial court properly dismissed plaintiff’s action.
explained, the Martinez court found the plain meaning of the
term “place” in the statutory text and the definition of the term
“facility” in the ADA’s implementing regulation both suggested
“an intentional exclusion of businesses without any physical
presence from the scope of Title III.” (Martinez, supra,
81 Cal.App.5th at pp. 1044–1045.) Contrary to plaintiff’s
insinuation, the Martinez court did not invoke Congress’s failure
to act as a basis for discerning legislative intent; rather, the court
“ultimately conclude[d] that the language of the statute, when
considered in the context of Congress’s failure to act and the
DOJ’s silence in terms of formal guidance,” would “not permit
[the court] to adopt an interpretation of the statute that is not
dictated by its language, especially in the face of the legislative
and agency inaction described above.” (Id. at p. 1052, italics
added.) It was the text of the statute that dictated the result
in Martinez—not extrinsic legislative or regulatory inaction.
28
DISPOSITION
The judgment is affirmed. Defendant Webroot, Inc. is
entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
NGUYEN, J.
 Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
29