Short take-away - Website is not a public "place" subject to the ADA and the Unruh Act (Martin v. Thi E-Commerce)

Short take-away - A website with no physical location cannot be sued for failure to fully implement screen reading for blind visitors

Plaintiffs admittedly seek out websites that are not fully accessible to the disabled and therefore sued a website unrelated to the entrance to any physical location, i.e., a "stand alone" e-commerce website.  They alleged the website was not fully compatible with screen-reading technology to assist blind visitors, resulting in a violation of California's Unruh Act barring discrimination based on disability.  More specifically they argued the website is a place of "public accommodation" under the Federal Americans with Disabilities Act ("ADA") and compatibility with screen reading technology was therefore required.

Acknowledging that both Federal and California courts were split as to how to apply the statutory language "place" to a website, the Fourth Appellate District, Division Three, held that a site that exists purely in cyberspace was not a "place" as fined by the ADA. (Martin v. THI Commerce (September 13, 2023) G061234.) 

Acting Presiding Justice Sanchez wrote for the majority and interpreted the phrase "place of public accommodation," as defined in the Americans with Disabilities Act, as excluding websites that have no relation to any physical location.  Therefore, a website not required for entrance to a physical location (in contrast to a website used to make entrance reservations) is not subject to the provisions of the ADA as "the ADA unambiguously requires a physical location." (Martin, p. 2.)  The demurrer sustained by the Hon. Theodore R. Howard of the Orange County Superior Court as to the entire complaint was therefore upheld by the Fourth District.

Justice Delaney dissented, noting that Mirriam Webster's Collegiate Dictionary (2003) provides that "'Place’ includes. . . ‘an indefinite region or expanse.'"  The dissent argued the intent of the ADA was to be applied broadly and the examples given as to places of public accommodation in the statute were meant to be examples only and should not limit its application to future technology. 

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Short take-away - Animal control must release, rather than euthanize, dogs (Santa Paul Animal Recue v. County of LA)

 

Short take-away - Animal Control does not have discretion to refuse to release dogs to pre-approved animal rescue group

The Second Appellate District, Division Five, has held that under California statute the Los Angeles County Animal Control Dept. does not have the discretion to refuse to release a dog to an animal rescue group. (Santa Paul Animal Rescue v. County of Los Angeles (August 21, 2023) B318954.)  Plaintiff animal rescue group wanted to adopt dogs which animal control defined as "unadoptable" due to behavioral problems.  Plaintiff filed a Petition for a Writ of Mandate with the Los Angeles County Superior Court, and Judge James C. Chalfont entered an order of dismissal following a demurrer by the County.  

Writing for the court, Justice Moor explained that while the County could decide who was an approved animal rescue organization, once they approved the organization they had no discretion to refuse to release a dog to it rather than proceed with euthanization.  The Hayden Act, and, in particular, Food and Agriculture Code section 31108, et seq., provide for what it termed a "ministerial duty" to release a dog whether or not the dog has been determined to be adoptable.  

Simply put, as long as the animal rescue organization has been approved by the County -- and the County does indeed have discretion in initially approving animal rescue organizations --  animal control has no discretion to refuse to release an animal to such an organization.  The only exception is for animals who are "irremediably" suffering from illness or injury.  This result comports with California public policy that all "adoptable" dogs be adopted.

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Notwithstanding Federal admiralty law, California worker’s compensation Law applies to Injury at yacht club (Ranger v. Alamitos Bay)

State courts have concurrent tort jurisdiction under admiralty and maritime law but plaintiff is limited to worker’s compensation recovery 

Plaintiff Ranger fell at the Alamitos Bay Yacht Club in Long Beach, California, while lowering a boat into the water.  He sued in state court but his tort claims were dismissed as worker's compensation was determined to be his exclusive remedy. (Ranger v. Alamitos Bay Yacht Club (September 6, 2023) B315302.)  Specifically, the Hon. Mark C. Kim of the Los Angeles County Superior Court sustained, without leave to amend, a demurer on the grounds that plaintiff Ranger could not state a tort claim in California Superior Court.  The Second District, Division Eight, affirmed the trial court but held it did not need to decide the issue of whether or not admiralty jurisdiction applied.

As set forth in both the Constitution and maritime statutes [1], Federal courts have exclusive jurisdiction over certain claims.  At the same time, state courts may adjudicate in personam “maritime claims” as they have “concurrent jurisdiction” over such suits. (Id., p. 2.)  

As the Ranger court explained, this means the issue of whether admiralty jurisdiction applies is “supernumerary,” or excess, to deciding whether California worker’s compensation is the exclusive remedy for a worker such as Ranger injured at a Yacht Club. (Id.)

This is because Ranger was an "employee" excluded from "maritime jurisdiction" under 1984 amendments to the Longshoremen’s and Harbor Worker's Act (“Longshore Act”) found at 33 U.S.C. section 902(3) and (3)(b).  This act established Federal worker’s compensation for what Ranger termed “maritime employment.” (Ranger, p. 3, citing 33 U.S.C. sections 902 and 905.)  More specifically, workers at a “club” are defined as such “employees,” as discussed in more detail below. 

In terms of interpreting this statute vis a vis common law precedent, Ranger explained that while what it called “admiralty courts” [2] are ostensibly “common law” courts, they look primarily to legislative enactments for guidance. (Ranger, p. 3; emphasis deleted.)  At page three, Ranger therefore summarized what it called “admiralty law" including "general maritime law:"

To set out our analysis in more detail, we begin by defining admiralty law. The Constitution implicitly directed courts sitting in admiralty to proceed as common law courts. Where Congress has not prescribed specific rules, these courts developed an amalgam of traditional, modified, and new common law rules. That amalgam is the general maritime law, which is no longer the exclusive province of federal judges. Congress and the states legislate extensively in these areas. When exercising their common law authority, admiralty courts look primarily to legislative enactments for policy guidance. (Citations omitted.)

Key to deciding Ranger were the 1984 amendments to the Longshore Act.  This act excluded many persons defined as an “employee” from Federal worker’s compensation, expressly providing the employee of a “club” is such an excluded employee:

In 1984, Congress responded by introducing a degree of clarity: Congress sharpened the Longshore Act’s focus to exclude employees who, although they happened to work on or next to navigable waters, lacked a sufficient nexus to maritime navigation and commerce. In response to the experiences of many witnesses, Congress adopted what it called a “case-specific approach.”

We now quote the textual result: the pertinent provision— subsection three of section 902 of the Longshore Act—as it stands after the 1984 amendments. Our italics highlight key words.

“The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, . . . but such term does not include—

. . . 

 “(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet. . .  (Ranger, p. 4-5; original emphasis.)

The Second District therefore disregarded oft-cited Federal common-law precedent that did not adequately address the 1984 language quoted above even though such cases have not been expressly overruled by Federal courts.  These included Green v. Vermilion Corp. (5th Cir. 1998) 144 F. 3d 332, and Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, the Ranger court noting the later featured a “celebrated” dissent by Justice Oliver Wendell Holmes.

Justice Wiley, writing for the Ranger court, succinctly summed up the court’s holding that, pursuant to California’s Labor Code sections 3351 and 3600, Ranger’s remedy was limited to a worker’s compensation claim:  

 . . . California’s workers’ compensation law is Ranger’s exclusive remedy. Congress in 1984 decreed this state law aptly covers his situation. A core part of the state workers’ compensation bargain is that injured workers get speedy and predictable relief irrespective of fault. In return, workers are barred from suing their employers in tort. The trial court correctly dismissed Ranger’s tort suit against his employer. (Ranger, p. 13.)

Tips for practitioners

Those prosecuting or defending tort claims should remember the concurrent jurisdiction of state courts in regard to a personal injury involving “navigable waters” which may fall under Federal Maritime Law.  They should likewise note that despite what their law school professors may have stressed as to the supremacy of Federal law, the modern — though by no means recent — trend is to recognize “concurrent” state court jurisdiction as to personal injuries even if the claim would otherwise fall under admiralty law.  

At the same time, Ranger reminds us that tort claims that otherwise fall under this “concurrent” jurisdiction and might otherwise be decided by a state court may be pre-empted by worker’s compensation exclusivity.  Counsel on both sides should therefore look to the Longshore Act, as amended in 1984, and their state law to determine if such a tort claim is instead within the exclusive purview of the worker’s compensation scheme in their state.

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1 — Article Three, Section Two of the United States Constitution states in part:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;—between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. (Emphasis added.)

By virtue of the Judiciary Act of 1989, Federal Courts have exclusive jurisdiction over admiralty and maritime Law claims but state courts retain their own jurisdiction over common law claims:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (28 U.S.C. section 1333(1); emphasis added.)

2 — While the terms “admiralty” and “maritime” are often used interchangeably, the Constitution expressly gives Federal courts jurisdiction over admiralty "and" maritime law. (See note one.)  "Maritime law" may be said to have global application and encompasses international waters, while "admiralty law" encompasses commercial maritime activities and therefore includes disputes involving coastal areas and inland waterways which may be defined as “navigable waters.”

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Short take-away: Agent's admissions are not "deemed admitted" by principal (Inzunza v. Naranja)

 

Short take-away - it was error to preclude the principal from contesting factual matters deemed admitted as to the agent

The Second Appellate District, Division Four, has held that factual matters deemed admitted as to an agent do not preclude the principal from contesting liability. (Inzunza v Naranja (August 21, 2023) B318956.)  Naranja, the driver of the vehicle involved in a fatal collision with Inzunza, had factual matters "deemed admitted" against him because he failed to respond to requests that he, for example, admit he was entirely at fault and the driver of the other vehicle was not comparatively negligent.  Inzuna's heirs moved by way of a motion in limine to prohibit any party from introducing any evidence at trial that was contrary to these party admissions, effectively precluding the principal, employer CRGTS, from fully defending the action. In an opinion written by Justice Currey, the Second District held with clarity that admissions pertaining to an agent did not preclude the principal from contesting liability:

We begin with the plain language of the statute. . . section 2033.410 provides, in relevant part, that any matter deemed admitted “is conclusively established against the party making the admission” and is “binding only on that party.” (§ 2033.410, subds. (a) and (b), italics added.) It is undisputed that Inzunza failed to respond to plaintiffs’ requests for admission propounded on him, and the trial court correctly deemed the matters in the requests admitted by Inzunza. It is also undisputed, however, that CRGTS timely responded to plaintiffs’ requests for admission, and denied some of the same requests as those deemed admitted by Inzunza. . . .  The basis of plaintiffs’ action against CRGTS is vicarious liability arising from the acts of Inzunza. Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable. [Citation.]  Thus, by precluding CRGTS from introducing evidence contesting liability, the trial court saddled it with Inzunza’s deemed admissions—making his admissions of fault binding not only on Inzunza, but also CRGTS, in violation of section 2033.410. (Id., pp. 7-8.)

Inzunza noted that while an agent's actions bind the principal, the agent's actions in failing to respond to discovery were not within the "course and scope" of employment.  The appellate court also noted that CACI No. 210 provided guidance in this area, providing in brackets that the jury, where appropriate, should be instructed, ". . . these matters must be considered true only as they apply to the party who admitted they were true.” Moreover, the directions for CACI 210 provide plainly that “The bracketed phrase should be given if there are multiple parties.” 

 

The jury should be told the agent's admissions do not bind the principal

The Second District expressly instructed the Superior Court that upon retrial the jury should be told the employee's admissions do not bind his employer.  Therefore, the text quoted above, which the jury was not given during the first trial, must be read to the jurors.

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Short-takeway - Agent of employer on hook for asking illegal questions of job applicants (Raines v. US Healthworks)

 

Short Take-away:  Agent of employer who asked invasive questions as part of a pre-employment screening may be sued under California's FEHA

Responding to a question from the Ninth Circuit Court of Appeals, the California Supreme Court has held the agent of an employer may be sued under the Fair Housing and Employment Act (FEHA) when it acts on behalf of an employer and asks intrusive questions prohibited by law. (Raines v. US Healthworks (August 24, 2023) S273630.)  Questions from defendant US Healthworks Medical Group to potential employees of the hiring employer included:

. . . USHW required job applicants to complete a written health history questionnaire that included numerous health-related questions having no bearing on the applicant’s ability to perform job-related functions. According to plaintiffs, these questions covered details of the applicant’s health history including “whether the applicant has and/or has ever had: 1) venereal disease; 2) painful or irregular vaginal discharge or pain; 3) problems with menstrual periods; 4) irregular menstrual period; 5); penile discharge, prostate problems, genital pain or masses; 6) cancer; 7) mental illness; 8) HIV; 9) permanent disabilities; 10) painful/frequent urination; 11) hair loss; 12) hemorrhoids; 13) diarrhea; 14) black stool; 15) constipation; 16) tumors; 17) organ transplant; 18) stroke; or 19) a history of tobacco or alcohol use.” In addition, the questionnaire asked whether the job applicant was pregnant, sought information regarding medications taken, and required the job applicant to disclose prior job-related injuries and illnesses. (Id., pp. 2-3.)

Justice Jenkins wrote for a unanimous court, which held that instead of the rules of common-law agency, the relevant and applicable authority was Government Code section 12940 of the FEHA.  This section provides that "[e]mployer’ includes. . .  any person. .  acting as an agent of an employer. . . ."

The Supreme Court  explained this result is supported by public policy because it makes liable the entity who (allegedly) violated FEHA, and indeed, the entity who no doubt drafted the offensive questionnaire:

If a business entity contracts with an employer to provide services that will affect that employer’s employees, and if, in providing those services, the business-entity agent violates FEHA’s antidiscrimination policies, causing injury to the employer’s employees, it is consistent with sound public policy to treat the business entity as an employer of the injured employees for purposes of applying the FEHA. This interpretation imposes FEHA liability not only on the employer but also extends it to the entity that is most directly responsible for the FEHA violation. (Id., p. 27.)

As a final comment, it is difficult to understand how US Healthworks could even consider asking such improper questions, such as whether female employees are pregnant, and not run afoul of California law.  The idea that US Healthworks may escape liability by claiming they are merely an agent of the employer seems to border on subterfuge, and, indeed may appear to be an attempt by the hiring employer and its agent to evade rules forbidding employers from asking questions that clearly violate California law.

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Plaintiff who did not have to pay for drug may not make unfair competition claim (Williamson v Genetech)

 

A plaintiff may not use the “collateral source rule” to “borrow” an insurer’s injury so as to state a claim under California’s Unfair Competition law 

Plaintiff Williamson paid only his prescription-drug deductible, which he would have paid no matter the price of his medicine.  Nonetheless, he sued the drug maker, defendant Genetech, both individually and as representative of a putative class, alleging they overcharged for a leukemia drug. (Williamson v. Genetech (August 11, 2023) A164426.)  Despite his lack of actual harm, the plaintiff plead the novel theory that under the “collateral source” rule the harm to his insurer in having to overpay for a drug could support his individual claim:

Williamson later sued Genentech, on behalf of himself and a putative class of similarly situated individuals, alleging that Genentech violates the unfair competition law by selling Rituxan (and three other medications) in excessively large single-use vials.

In his operative (third amended) complaint, Williamson alleges that, because the appropriate dosage varies based on a patient’s body size, Genentech’s vial sizes are too large for most patients. He insists Genentech should be required to offer smaller vial sizes. . . to reduce waste of expensive medicine. . . . . However, Williamson alleges that he took only Rituxan, not the other three medications, and that, to do so, he paid a $231.15 deductible. He admits that “[a]ll remaining payments” were made by his health insurer. . . . (Id., p. 2.)

Genetech’s demurer was sustained without leave to amend by the Hon. Daniel S. Murphy of the Los Angeles County Superior Court and plaintiff appealed.  The Second District agreed with the trial court that under the facts plead plaintiff could not state an Unfair Competition claim:

The obvious problem here is that Williamson suffered no injury. He paid a deductible of $231.15 to obtain Rituxan; his insurer paid the remaining cost. He concedes that he would have paid the same deductible regardless of the size of Genentech’s vials. Thus, Genentech’s alleged unfair business practice—using excessively large vials—has not injured Williamson in any way. (See Kwikset, supra, 51 Cal.4th at pp. 323, 326.) Williamson does not dispute this point.

. . . Williamson wants to borrow an injury from somebody else to establish standing, using the collateral source rule. . . .

It is a creative argument. The collateral source rule concerns the amount of money owed by a tortfeasor to the injured victim: “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Id., pp. 4-4.)[2] 

Therefore, the Williamson panel outright rejected plaintiff’s “collateral source” theory:

The collateral source rule has no application here. First, in both tort and criminal restitution cases, the rule applies when a defendant injured a victim, and the issue is simply how much compensation the defendant owes to the victim in light of payments from an insurer or other collateral source. Williamson cites no cases in which the rule applied to a plaintiff who suffered no injury. (Id., p. 6.)

Williamson therefore held plaintiff simply had no“Article III standing” [1] to bring suit. 

The appellate court also rejected plaintiff’s argument that permitting him to bring a claim would “encourage” others to buy insurance, succinctly noting “people with insurance, like Williamson, are not injured, and people without insurance are injured.” (Id., p. 7; emphasis added.)

The appellate court further agreed with the trial court that plaintiff should not, as he requested, be granted leave to amend to add another class representative who may have suffered actual harm.  Not only are rulings regarding leave to amend left to the sound discretion of the trial court, meaning such decisions will not be disturbed absent an “abuse of discretion,” but the Second District found it relevant that plaintiff had not identified even one other potential plaintiff to take the place of Williamson. (Id., p. 8.)

Lessons for practitioners

In a suit such as this it is, of course, counsel rather than the client who “drives the train,” so to speak, as counsel defines the scope of the potential class claiming injury and must decide who is the named “representative.”  For the reasons stated above, plaintiff Williamson was not a suitable party, either as an individual or such a representative.  Presumably, there may have been another plaintiff who in fact suffered actual injury and who therefore would be better-suited to be the named plaintiff.  Indeed, one could argue that counsel admitted such in maintaining the complaint could be amended to add such another lead plaintiff.  But, as noted, counsel did not propose any specific person to take the place of Williamson.

1 - Plaintiff had no “actual injury” and therefore no Constitutional "standing" under Unfair Competition law.  Williamson explained that California law requires such an injury.  Moreover, standing, as defined by Federal law, and, in particular, Article III of the United States Constitution, requires an injury that is “(a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” (Williamson, p. 4, citing Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, at 232.) 

2 - On this and other points Williamson cited Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, as the leading case defining the scope of the “collateral source” rule in California.