Complaint,Petition: REBECCA CASTILLO VS FACE HAUS, LLC

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                                Electronically FILED by Superior Court of California, County of Los Angeles on 02/14/2020 10:03 AM Sherri R. Carter, Executive Officer/Clerk of Court, by G. Perez-Moreno,Deputy Clerk
                                                                                      20PSCV00124
                                        Assigned for all purposes to: Pomona Courthouse South, Judicial Officer: Gloria White-Brown

                            Joseph R. Manning, Jr., Esq. {State Bar No. 223381)
                            MANNING LAW, APC
                            20062 SW Birch Street, Ste. 200
                            Newport Beach, CA 92660
                            Office: {949) 200-8755
                            Fax: {866) 843-8308
                            DisabilityRights@manninglawofftce.corn
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                            Attorney for Plaintiff REBECCA CASTILLO
                     5




                                                                     SUPERIOR COURT OF CALIFORNIA
                                                             IN AND FOR THE COLiiNTY QF LOS ANGELES

                                                                                                       Case No.:
                              REBECCA CASTILLO, an individual
                   10
                                               Plaintiff,                                              Complaint For Damages And Injunctive Relief
                                                                                                       For:
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                              FACE HAUS, LLC, a California limited                                           1. VIOLATIONS         OF THE UNRUH CIVIL
                   13         liability company; and DOES 1-10,                                                    RIGHTS ACT, CALIFORNIA CIVIL
                              inclusive,                                                                           CODE tj 5I et seq.
                   14
                                               Defendants.
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                                Plaintiff REBECCA CASTILLO {"Plaintiff") alleges the following upon information and
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                           belief based upon personal knowledge:
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                                                                                    INTRODUCTION
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                                                  Plaintiff is a visually-impaired and legally blind person who requires screen-
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                           reading software to read website content using a computer. Plaintiff uses the terms "blind" or
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                           "visually-impaired" to refer to all people with visual impairments who meet the legal
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                          definition of blindness in that they have a visual acuity with correction of less than or equal to
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                          20 x 200. Some blind people who meet this definition have limited vision. Others have no
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                                                                                       COMPLAINT
                                                                                                   1
      vision.

                 2.   Plaintiff brings this civil rights action against FACE HAUS, LLC, a California
      limited liability company, (" Defendant" ) for its failure to design, construct, maintain, and
     operate its website (hereinafter the "Website" or "Defendant's Website" which shall refer to
     thefacehaus.corn, and any other website operated by or controlled by Defendant as well as any
     third party content which is located on or used in connection with thefacehaus.corn and any
     other website operated by or controlled by Defendant, for the purposes described herein) to be
     fully accessible to and independently usable by Plaintiff and other blind or visually-impaired

     people. Defendant's denial of full and equal access to the Website and therefore denial of its
10   products and services offered thereby and in conjunction with its brick-and-mortar locations, is
     a violation of Plaintiff's rights under the California's Unruh Civil Rights Act ("UCRA").
12              3.    The California Legislature provided a clear and statewide mandate for the
13   elimination of discrimination against individuals with disabilities when it enacted the Unruh
14   Civil Rights Act, Cal. Civ. Code ( 51, er seq. Discrimination sought to be eliminated by the
15   UCRA includes barriers to full integration. independent living, and equal opportunity for
16   individuals with disabilities, which then necessarily includes barriers created by websites and
17   other places of public accommodation that are inaccessible to blind and visually-impaired
18   individuals.
19              4.    Because Defendant's Website is not equally, independently, or fully accessible
20   to blind and visually-impaired constuners in violation of the UCRA, Plaintiff seeks a
21   permanent injunction to cause a change in Defendant's corporate policies, practices, and
22   procedures so that Defendant's Website will become and remain accessible to blind and
23   visually-impaired consumers.
24                                    JURISDICTION AND VKNI)E
25              5.    This Court has subject matter jurisdiction over this action. This Court has
26   personal jurisdiction over Defendant because it conducted and continues to conduct substantial
27   business in the State of California, County of Los Angeles, and Defendant's offending Website
28   is available throughout California.

                                               COMPLAINT
                                                      2
             6.      Venue is proper in this Court because Defendant conducts substantial business

     in this County. Venue is also proper because a substantial portion of the conduct complained

     of herein occurred in this District.
                                                  PARTIES
             7.      Plaintiff, at all times relevant and as alleged herein, is a resident of California,

     County of Los Angeles. Plaintiff is legally blind and cannot use a computer without the
     assistance of screen-reading software (otherwise known as a "screen-reader"). However,
     Plaintiff is a proficient user of the JAWS screen-reader and uses it to access the internet.
     Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. During
10   Plaintiff's separate visits to Defendant's Website, Plaintiff encountered multiple access
     barriers which denied Plaintiff full and equal access to the facilities, goods, and services
12   offered to the public and made available to the public on Defendant's Website. Due to the
13   widespread access barriers Plaintiff encountered on Defendant's Website, Plaintiff has been
14   deterred, on a regular basis, from accessing the Website.
15           8.     Plaintiff did not encounter, nor does she in any way base her UCRA claims
16   alleged herein, upon the presence of any physical or architectural barrier in any public place of
17   accommodation.
18           9.     Plaintiff is a tester in this litigation seeking to ensure compliance with federal
19   and state law. See Civil Rights Educ. and Enforcement Center v. Hospitality Props. Trust, 867
20   F.3d 1093, 1096 (9th Cir. 2017).
21           10.    Plaintiff is also a consumer who wishes to access Defendant's goods and
22   services.
23           11.    Plaintiff is being deterred fiom patronizing the Defendant's Website and brick-
24   and-mortar locations on particular occasions.
25           12.    If informed that the Website has been made accessible within the meaning of
26   the UCRA and the ADA, Plaintiff vvill return to the Website to test its accessibility within 45
27   days to test such a claim of compliance with the law.
             13.    Plaintiff has standing to sue Defendant under the UCRA. As the California

                                               COMPLAINT
     1   Supreme Court explained in Ange/ucci         v.    Century Supper Club,   41   Cal.4th 160 (2007),"an
 2       individual plaintiff has standing under the (Unruh] Act if he or she has been the victim of the
 3       defendant's discriminatory act."   1d.   at 175.
 4                14.      Plaintiff is informed and believes, and thereon alleges Defendant is a California
 5       limited liability company and has its principal place of business in Los Angeles, California.
 6       Defendant operates brick-and-mortar locations in Los Angeles County, California.
 7       Defendant's brick-and-mortar locations constitute places of public accommodation.
 8       Defendant's Website provides consumers with access to an array of goods, services, and
 9       information related to Defendant's brick-and-mortar locations including product item
10       descriptions, services information, company story description, account sign-up, online
11       purchases, store location information, and many other benefits.
12                15.     The true names and capacities of the Defendants sued herein as DOES             1



13       through 10, inclusive, are currently tutknown to Plaintiff, who therefore sues such Defendants
14       by fictitious names. Each   of the Defendants designated herein as a DOE is legally responsible
15       for the unlawful acts alleged herein. Plaintiff will seek leave of Court to amend this Complaint
16       to reflect the true names and capacities of the DOE Defendants when such identities become

17       known.
18                16.     At all relevant times as alleged herein, each and every Defendant was acting as
19       an agent and/or employee     of each of the other Defendants and was acting within the course
20       and/or scope of said agency and/or employment with the full knowledge and consent of each
21       of the Defendants. Each of the acts and/or omissions complained of herein were alleged and
22       made known to, and ratified by, each of the other Defendants (Defendant, together with any
23       DOE Defendants, are collectively referred to hereinafter as "Defendant" or "Defendants" ).
24                      VISUALLY-IMPAIRED PERSONS'CCESS TO THE INTERNET
25                17.     The Internet has become a significant source of information, a portal, and a tool
26       for conducting business, doing everyday activities such as shopping, learning, banking,
27       researching, as well as many other activities for sighted, blind and visually-impaired persons
28       alike. As an essential tool for many Americans, vvhen accessible, the Internet provides

                                                      COMPLAINT
                                                                4
     individuals with disabilities great independence. Blind persons are able to access websites

     using keyboards in conjunction with screen access software that vocalizes the visual
     information found on a computer screen. This technology is known as screen-reading
     software. Except for legally blind individuals whose residual vision allows them to use

     magnification, screen-reading software is currently the only method a blind person can fully
     and independently access the internet.
              18.    Blind and visually-impaired users of Windows computers and devices have
     several screen-reading software programs available to them.

              19.   Job Access With Speech, otherwise known as "JAWS," is currently the most
10   popular, separately purchased screen-reading software program available for Windows.
              20.   For screen-reading software to function, the information on a website must be
12   capable of being rendered into text. If the website content is not capable of being rendered
13   into text, the blind or visually-impaired user is unable to access the same content available to
14   sighted users using their keyboards because they are unable to see the screen or manipulate a
15   mouse.
16            21.   Screen-reading software is currently the only method a blind or visually-
17   impaired person may independently access the internet, websites, and other digital content.
18            22.   If the website content is not capable of being rendered into text, the blind or
19   visually-impaired user is unable to access and navigate the same content on a website or
20   mobile app that is available to sighted users.
21            23.   There are well-established industry adopted guidelines for making websites
22   accessible to visually-impaired people who require screen-reading software programs. These
23   guidelines have existed for at least several years and are successfully followed by large
24   business entities who want to ensure their websites are accessible to all persons. The Web
     Accessibility Initiative ("WAI"), an initiative of the World Wide Web Consortium developed
26   guidelines on website accessibility. Through Section 508 of the Rehabilitation Act, the federal
27   government also promulgated website accessibility standards. These guidelines, easily found
     on the Internet, recommend several basic components for making websites accessible,

                                              COMPLAINT
     including, but not limited to: adding invisible Alt-text to graphics, ensuring all functions can
     be performed using a keyboard and not just a mouse, ensuring that image maps are accessible;

     and adding headings so blind and visually-impaired people can navigate websites and mobile

     applications just as sighted people do. Without these basic components, websites and mobile
     applications are inaccessible to a blind person using screen-reading software.
            24      Common barriers encountered by blind and visually-impaired persons include,
     but are not limited to, the following:

                         a.   A text equivalent for every non-text element is not provided;

                         b. Title frames with text are not provided for identification and navigation;

10                      c.    Equivalent text is not provided when using scripts;
                        d. Forms with the same information and functionality as for sighted

12                            persons are not provided„.
13                      e. Information about the meaning and structure of content is not conveyed

14                            by more than the visual presentation of content;
15                      f.    Text cannot be resized without assistive technology up to 200 percent
16                            without loss of content or functionality;
17                      g.    If the content enforces a time limit, the user is not able to extend, adjust,
18                            or disable it;
19                      h. Web pages do not have titles that describe the topic or purpose;

20                      i.    The purpose of each link catmot be determined from the link text alone
21                            or from the link text and its programmatically determined link context;
22                     j.     One or more keyboard operable user interface lacks a mode of operation
23                            where the keyboard focus indicator is discernible;
24                      k. The      default human language of each web                 page   cannot be
25                            programmatically detenmned;
26                      1.    When a component receives focus, it may initiate a change in context;
27                      m. Changing the setting of a user interface component may automatically

28                            cause a change of context where the user has not been advised before

                                                COXIPI.AINT
                                                       6
                             using the component;
                         n. Labels or instructions are not provided when content requires user input;

                         o. In content which is implemented by using markup languages, elements

                             do not have complete start and end tags, elements are not nested

                             according to their specifications, elements may contain duplicate

                             attributes auditor any IDs are not unique;

                         p. Inaccessible Portable Document Format (PDFs); and,

                         q. The name and role         of all User Interface elements cannot be
                             programmatically determined: items that can be set by the user cannot
10                           be programmatically set; and/or notification of changes to these items is

                             not available to user agents, including screen-reading software.
12           25.      In California and the Ninth Circuit, controlling law recognizes the viability of

13   Unruh and Americans with Disabilities Act, 42 U.S.C. $ 12181 et seq. as amended by the
14   ADA Amendments Act of 2008 (P.L. 110-325) (hereinafter "ADA") claims against
15   commercial website and mobile application owners and operators with regard to the
16   accessibility of such websites and mobile applications. Rabies       v.   Domino's Pizza, LLC, 17-

17   55504, 2019 WL 190134(9th Cir. January 15, 2019) (Holding the ADA and UCRA apply to
18   websites and mobile applications, that imposing liability under Title III of the ADA and Unruh
19   Act would not violate Fourteenth Amendment rights to due process, that the ADA is not
20   impermissibly vague in this context, that regulated parties have received fair notice of their
21   obligations since 1996, that it was error to invoke the doctrine of primary jurisdiction and
22   finally that an order requiring compliance with WCAG 2.0 is a possible equitable remedy);
23   Long   v.   Live Nation Worldwide, Inc., No. C16-1961 TSZ 2018 WL 3533338 (W.D. Wash.

24   July 23, 2018) (denying Defendant's summary judgment motion based on voluntary cessation
25   and mootness and finding that defendant's website is subject to the accessibility regulations

26   under the ADA as a matter of law): Carroll        v.   Fedfinancial Fed. Credit Union, 2018 WL
27   3212023 (E.D. Va. June 25, 2018) (denying Defendant's Motion to Dismissed based on
28   jurisdiction, Title III applicability, and due process arguments); Haynes        v.   Hooters of Am.,

                                               COMPLAINT
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     LLC, 17-13170, 2018 WL 3030840 {11th Cir. June 19, 2018) (holding that a private settlement

     agreement does not moot a new web access claim by a different plaintiff); Gil                   v.   SMG

     Holdings, No. 1:18-cv-20107 (S.D. Fl. May 28, 2018) (denying a motion to dismiss and

     holding that mootness and voluntary cessation defenses did not apply when defendant claimed
     it was already in the process       of correcting the barriers on its website); Thurston   v.   Midvale

     Corporation, et al., Los Angeles Superior Court, Case No. BC663214 (Judge Samantha P.
     Jessner) (May 17, 2018) {granting plaintiff's summary judgment motion finding "a plain

     reading of the statute, as well as the [DOJ's] treatment of websites under the ADA, indicate
     that Defendant's website falls within the categories of 'services, ... privileges, advantages, or
10   accommodations     of        a restaurant, which is a place of public accommodation under the

     ADA."); Castillo   v.   Jo-Ann Stores, LLC. No. SH7-cv-20110-KBB (N.D. Ohio February 13,
12   2018) (denying motion to dismiss finding plaintiff has stated a cognizable website ADA claim
13   and has standing, plaintiff successfully alleged a nexus between defendant's website and its

     brick and mortar stores, and the injunctive relief sought does not violate due process rights);
15   Gathers   v. J-BOO-FLOIVERS.corn,       No. 1:17-cv-10273 (Mass. February 12, 2018) (denying a
16   motion to dismiss sought against ADA claims); Robles         v.    Fum! Brands, Inc. dtbla Pizza Hut,

17   No. 2:16-cv-08211-ODW(SS) at *15. (C.D. Cal. Jan. 25, 2018) (Wright) (denying a motion
18   for summary judgment sought against ADA and California's Unruh Civil Rights Act claims)
19   (" Pizza Hut cannot simply post a customer service phone number on its website and claim that

20   it is in compliance with the ADA unless it shovvs that a visually-impaired customer 'will not

21   be excluded, denied services, segregated or otherwise treated          differently'rom non-visually
22   impaired customers who are able to enjoy full access to Pizza Hut's website" [citations
23   omitted]); Andrews      v.   Blick Art Materials, LLC, No. I:17-cv-00767-JBW-RLM (E.D.N.Y.
24   Dec. 21, 2017) (Weinstein, J.) (Memorandum and Order approving settlement of website
25   accessibility case in the form of judgment): Brooke        v. A{   Ventures, LLC, No. 2:17-cv-2868-

26   HRH at 19. (A.Z. Nov. 22, 2017) (granting declaratory judgment that defendant's website did
27   not comply with ADA; defendant enjoined to ensure equal access) ("[D]efendant was in
28   violation of the Americans with Disabilitv Act because its hotel reservations website did not

                                                 COMPLAINT
                                                        8
     afford disabled persons equal access to defendant's public accommodation"); Rios                        v.   New York

     k   Company, Inc., No. 2:17-cv-04676-ODW (AGr) (C.D. Cal. Nov. 16, 2017) (Wright)
                                                                                     ("
     (denying a motion for judgment on the pleadings sought against Unruh Act claims) [T]he
     Court finds that this case is not unique, 'as federal courts have resolved effective
     communication claims under the ADA in a variety of contexts— including cases involving
     allegations of unequal access to goods, benefits, and services provided through
           websites.'obby
            Lobby, 2017 WL 2957736, at 'T"); Access Now, Inc.                          v.   Blue Apron, LLC, No. 17-cv-

     116-JL at 21. (C.D. N.H. November 8, 2017) (denying a motion to dismiss sought against

     ADA claims) ("[Plaintiffs] rely on Title III of the ADA as governing the defendant's potential
10   liability and invoke compliance with the WCAG 2.0 AA standards as a sufficient condition,
     but not a necessary condition, for such compliance, and therefore as a potential remedy.");
12   Gorecki   v.   Dave   ck   Buster 's, Inc., No. 2:17-cv-01138-PSG-AGR (C.D. Cal. October 10, 2017)

13   (Gutierrez, P.) (denying a motion for summary judgment sought against ADA and California's
14   Unruh Civil Rights Act claims) ("a finding of liability regarding the Website's compliance
15   with the ADA does not require sophisticated technical expertise beyond the ability of the
16   Court" ); Kayla Reed v. CVS Pharmacy, Inc., Case No. 2:17-cv-03877-MWF-SK, at *9. (C.D.
17   Cal. Oct. 3, 2017) (Fitzgerald) (denying a motion to dismiss sought against ADA and
18   California's Unruh Civil Rights Act claims)              {" The    DOJ's position that the ADA applies to

19   websites being clear, it is no matter that the ADA and the DOJ fail to describe exactly how any
20   given website must be made accessible to people with visual impairments. Indeed, this is often
21   the case with the ADA's requirements, because the ADA and its implementing regulations are
22   intended to give public accommodations maximum flexibility in meeting the statute's
23   requirements. This flexibihty is a feature, not a bug, and certainly not a violation of due
24   process."); Andrews         v.   Blick Art iifaterials, LLC,   —   F. Supp. 3d         —,   2017 WL 3278898, at *12,

25   *15-*18 (E.D.N.Y. Aug. I, 2017) (Weinstein, J.); Gomez                      v.   Lego Systems, Inc., Case I:17-cv-

26   21628-CMA (S.D. Fla. July 31, 2017) (denying a motion to dismiss an ADA claim alleging an
27   inaccessible commercial website) [ECF it40], Thurston                  v.    Chino Commercial Bank, N.A., No.

     CV 17-01078 BRO (JCx), 2017 WL 3224681, at ~5 (C.D. Cal. July 27, 2017) (citing Gorecki);

                                                       COMPLAINT
                                                              9
      Markett    v.   Five Guys Enterprises LLC, No. 1:17-cv-00788-KBF, slip op. at 4-6 [ECF ¹33]

      (S.D.N.Y. July 21, 2017); Gorecki         v.   Hobby Lobby Stores, Inc., No. 2:17-cv-01131-JFW-SK,
      2017 WL 2957736 (C.D. Cal. June 15, 2017) (Walter, J.) (denying a motion to dismiss sought

      against ADA and California's Hnruh Civil Rights Act claims) ("[T]his is a relatively
      straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal

     enjoyment of goods and       services...        by not maintaining a fully accessible website. There is
     nothing unique about this case, as federal courts have resolved effective communication claims
     under the ADA in a wide variety of contexts — including cases involving allegations of unequal

     access to goods, benefits and services provided through vvebsites."); Gil              v.   Winn-Dixie Stores.
10   lnc., No. 16-23020-Civ-Scola,     —   F. Supp. 3d        —.   2017 WL 2547242, at *7 (S.D. Fla. June 13,
     2017) (finding that the defendant, a large supermarket chain, had violated the plaintiff's rights
12   under the ADA by failing to maintain an accessible website after a non-jury trial); Frazier                   v.

13   Ameriserv Financial Bank, Nos. 2:16-cv-01898-AJS (Lead Case), 17cv0031 [ECF ¹107], slip
14   op. at 20 (W.D. Pa. Apr. 21, 2017) (denying a motion to dismiss an ADA claim alleging an
15   inaccessible commercial website); Fra=ier           v.   Churchill Downs Inc., Nos. 2:16-cv-01898-AJS
16   (Lead Case), 2:16-cv-0007 (Member Case) [ECF ¹107] slip op. at 20 (W.D. Pa. Apr. 21, 2017)
17   (same); OmahaSteaks.corn, Inc.        v.   Access Now, Inc,, et al., No. 8:17-cv-00060-LSC-CRZ
18   [ECF ¹9-1] (D. Neb. Apr. 17, 2017) (consent decree); Access Now, Inc., et al.                                 v.

19   Omahasteaks.corn, Inc,, Nos. 2:16-cv-01898-AJS (Lead Case), 2:17-cv-00269-AJS (Member
20   Case) [ECF ¹99] (W.D. Pa. Apr. 11, 2017 (same); Gil                v.   8'inn-Dixie Stores, Inc.,   —   F. Supp.
21   3d   —,   No. 16-23020-Civ-Scola, 2017 WL 2609330 (S.D. Fla. Mar. 15, 2017) (denying a
22   motion for judgment on the pleadings sought against an ADA claim alleging an inaccessible
23   commercial website); Nat'l Ass'n of the Deaf ». Harvard Univ., Case 3:15-cv-30023-MGM,
24   2016 WL 3561622, at *12-*20 (D. Mass. Feb. 9, 2016) (Robertson, Mag. J.) (recommending
25   the denial of a motion to dismiss or stay predicated on the primary jurisdiction doctrine),
26   adopted in Nat'l Ass 'n of the Deaf v. Harvard Univ., Case 3:15-cv-30023-MGM, 2016 WL
27   6540446, at *1-*3 (D. Mass. Nov. 3, 2016) (Mastroianni, J.); Nat'l Ass'n of the Deaf                          v.

28   Massachusetts Inst, of Tech., Case 3:15- cv-30024-MGM, 2016 WL 3561631, at                      *1 (D. Mass.


                                                     COMPLAINT
                                                              10
     Feb. 9, 2016) (Robertson, Mag. J.) (recommending the denial of a motion to dismiss or stay

     predicated on the primary jurisdiction doctrine}, adopted in Nat'l Ass'n of the                  Deaf'.
     Massachusetts Inst. of Tech., Case 3:15-cv-30024-MOM, 2016 WL 6652471, at *I (D. Mass.
     Nov. 4, 2016) (Mastroianni, J.); Edward Davis            v.   Orlando IFilshire Investments Ltd., et al.,
     No. 5:15-cv-01738-MWF-KK, slip op. at 10 [ECF ¹17] (C.D. Cal. Nov. 2, 2015) (Fitzgerald,

     J.) (denying motion to dismiss in a website accessibility case) ("the Court concludes that the

     Complaint sufficiently alleges that the inaccessibility of the Website impedes the full and
     equal enjoyment of the Hotel."); Sipe      v.   Httntington National Bank, 15-CV-1083, Doc No. 21
     (W.D. Pa. Nov. 18, 2015) (denying motion to dismiss based on claims the DOJ had not yet
10   issued regulations governing website accessibility); Nat 'I Fed'n of the Blind v. Scribd, Inc., 98

     F. Supp.3d 565, 576 (D. Vt. 2015} (denying a motion to dismiss an ADA claim against a

12   commercial website operator); James Patrick Brown                v.   BPS Direct, LLC, et al., Case No.
13   LACV 14-04622 JAK (JEMx) slip op. at 4-7 [ECF ¹30] (C.D. Cal. Oct. 6, 2014) (Krondstadt,
14   J.) (denying the defendant's motion to dismiss v bile relying on the Target decision as
15   "persuasive", and holding "the Complaint does allege that Bass Pro Shops is a chain of brick-
16   and-mortar stores and that BassPro.corn is a website providing information about Bass Pro
17   Shops products, offers, and locations.... [and that] a nexus could be established here through
18   discovery."); Penney     v.   Eohl's Dep't Stores. Inc., et a!., No. 8:14-cv-01100-CJC-DFM [ECF
19   ¹12] slip op. at   3   (C.D. Cal. Sept. 23, 2014) (Carney, J.) (denying a motion to dismiss and
20   stating, "Thus, the Complaint states plausible facts that establish the requisite nexus between
     the challenged service and the place of public accommodation."); National Ass 'n of the Deaf v.
22   Nelflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (excluding web-based services would
23   "run afoul of the purposes of the ADA and would severely frustrate Congress's intent that

     individuals with disabilities fully enjoy the goods, services, privileges, and advantages
25   available indiscriminately to other members of the general public" ); id. at 200-01 (" [T]he
26   legislative history of the ADA makes clear that Congress intended the ADA to adapt to
27   changes in technology.") (quoting H.R. Rep. 101-485(II), at 108 (1990)) (" [T]he Committee
28   intends that the types of accommodation and services provided to individuals with disabilities,

                                                 COMPLAINT
                                                         11
     under all of the titles of this bill, should keep pace with the rapidly changing technology of the
     times."); Shields     v.   Walt Disney Parks and Resorts HS, 1nc., 279 F.R.D. 529, 559 (C.D. Cal.

     2011) (rejecting as "unpersuasive" Disney's argument that "there is no accepted accessibility
     standard" and the argument that the DOJ has yet to determine what standards to apply to

     websites and stating, "The lack of a widely accepted standard for website accessibility does
     not preclude injunctive relief that would improve access to Defendants'ebsites by the
     visually-impaired."); Nat '1 Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953

     (N.D. Cal. 2006) ("To limit the ADA to discrimination in the provision of services occurring

     on the premises of a public accommodation would contradict the plain language of the
10   statute.*'); id. at 953-54 ("consistent with the plain language of the statute, no court has held

     that under the nexus theory a plaintiff has a cognizable claim only if the challenged service
12   prevents physical access to a public accommodation. Further, it is clear that the purpose of the
13   statute is broader than mere physical access— seeking to bar actions or omissions which impair
14   a disabled person's "full       enjoyment'f services    or goods of a covered accommodation. 42
15   U.S.C.   tj   12182(a). Indeed, the statute expressly states that the denial of equal "participation"
16   or the provision of "separate benefit[s]" are actionable under Title III. See 42 U.S.C.             tj

17   12182(b)(1)(A).");     cf.   Hindel v, Husted, No. 2017 WL 432839, at "7 (S.D. Ohio Feb. I, 2017)
18   (granting a permanent injunction against the Ohio Secretary of State based on the accessibility
19   of the state's website under Title II of the ADA and requiring accessibility); Hindel v. Hasted,
20   No. 17-3207 (6th Cir., Nov. 13, 2017) (defendant bears the burden of production and
21   persuasion as to affirmative defenses such as fundamental alteration and subject matter of state
22   election laws do not relieve defendant of these burdens); Davis           v.   BMIIBNB Travelware
23   company No. CIVDS1504682 WL2935482 (Cal.Super. March 21, 2016) (granting motion for
24   summary judgment for plaintiff and ordering that defendant's website be made WCAG 2.0
25   compliant and awarding Unruh damages in favor of plaintiff).
26            26.      Each of Defendant's violations of the ADA is likewise a violation of the
27   UCRA. Indeed, the UCRA provides that any violation of the ADA constitutes a violation of
28   the UCRA. Cal. Civ. Code         tj   51(f).

                                                    COMPLAINT
                                                        12
                                       FACTUAL BACKGROUND
             27.     Defendant offers its commercial Website to the public.
             28.     The Website offers features which should allow all consumers to access the

     goods and services offered in connection with its brick-and-mortar locations.
             29.     The Website provides consumers with access to an array of goods, services, and

     information related to Defendant's brick-and-mortar locations which include, but are not
     limited to, the following: product item descriptions, services information, company story

     description, account sign-up, online purchases, store location information, and many other
     benefits.
10           30.     Based on information and belief, it is Defendant's policy and practice to deny
     Plaintiff, along with other blind or visually-impaired users, access to Defendant's Website, and
12   to therefore specifically deny the goods and services that are offered and integrated with
13   Defendant's brick-and-mortar locations and otherwise.
14           31.     Due to Defendant's failure and refusal to remove access barriers to its Website,
15   Plaintiff and visually-impaired persons have been and are still being denied equal access to
16   Defendant's brick-and-mortar locations and the numerous goods, services, privileges, and
17   benefits offered to the public through Defendant's Website.
18           32.    Plaintiff cannot use a computer without the assistance of screen-reading
19   software.
20           33.     However, Plaintiff is a proficient user of the JAWS screen-reader and uses it to
21   access the Internet.
22          34.     Plaintiff has visited Defendant's Website on separate occasions using the
23   JA WS screen-reader.
24          35.     While attempting to navigate the Website, Plaintiff encountered multiple
25   accessibility barriers for blind or visually-impaired people that include, but are not limited to:
26                      a.   The home page has graphics, links, and buttons that are not labeled or
27                           are incorrectly labeled, or lack alternative text ("Alt-text"). Alt-text is
28                           invisible code embedded beneath a graphical image on a website. Web

                                              COMPLAINT
                                                     13
                             accessibility requires that Alt-text be coded with each picture so that
                             screen-reading software can speak the Alt-text where a sighted user sees

                             pictures. Alt-text does not change the visual presentation, but instead a

                             text box shows when the cursor moves over the picture. The lack of
                             Alt-text on these graphics prevents screen-readers from accurately

                             vocalizing a description of the graphics.
                        b. Plaintiff encountered multiple unlabeled or mislabeled buttons and

                             links. Without descriptive alternate text, Plaintiffs, and other screen-

                             reader users, have no clue about the purpose or function of the button or
10                           link;

                        c.   Plaintiff encountered multiple pages containing insufficient navigational
12                           headings requiring Plaintiff to expend substantial additional time to
13                           access information:
14                      d. Plaintiff was unable to browse products because product links and

15                           descriptions were inaccessible to screen reading technology; and,
16                      e. Plaintiff was unable to make a purchase because of an inaccessible

17                           checkout system.
18          36.     Due to the unlabeled buttons, lack of Alt-text, the structure of the headings and
19   Website, cursor traps, and other barriers, Plaintiff was unable to fully and independently access
20   the Website when visiting for the dual purpose of testing for compliance with the UCRA and
21   ADA and to review services, sign up for an account, purchase items, book an appointment, and
22   visit the nearest brick-and-mortar location.
23          37.     Since as early as January    of 2020, and until the current date, during Plaintiff's
24   separate visits to the Website, Plaintiff encountered multiple access barriers which denied
25   Plaintiff full and equal access to the facilities, goods, and services offered to the public and
26   made available to the public on the Website.
27          38.     Due to the widespread access barriers Plaintiff encountered on the Website,
28   Plaintiff has been deterred, on a regular basis, from accessing the Website. Similarly, the

                                                CO'%PI.AINT
                                                      14
     access barriers Plaintiff encountered on the XVebsite have deterred Plaintiff from visiting
     Defendant's brick-and-mortar locations.
            39.     If the Website were equally accessible to all, Plaintiff could independently
     navigate the Website as sighted individuals do.
            40.     Having attempted to use the XVebsite, Plaintiff has actual knowledge of the

     access barriers that make these services inaccessible and independently unusable by blind and
     visually-impaired people.
            41.     There are readily available, well established guidelines, available to Defendant

     on the Internet, for designing, constructing, and maintaining websites to be accessible to blind
10   and visually-impaired persons. Other large business entities have used these guidelines, or

     have otherwise been able, to make their v ebsites accessible, including but not limited to:
12   adding Alt-text to graphics and ensuring that all functions can be performed using a keyboard.
13   In addition, incorporating these basic changes and adding certain elements to Defendant's
14   Website would not fundamentally alter the nature of Defendant's business nor would it result
15   in an undue burden to Defendant. Because maintaining and providing a website where all

16   functions can be performed using a keyboard would provide full, independent, and equal
17   access to all consumers to the Website, Plaintiff alleges that Defendant has engaged in acts of
18   discrimination including, but not limited to the following policies or practices:
19                      a.   Construction and maintenance of a website that is inaccessible to
20                           visually-impaired individuals, including Plaintiff;
21                      b. Failure to construct and maintain a website that is sufficiently intuitive

22                           so as to be equally accessible to visually-impaired individuals, including

23                           Plaintiff: and

24                      c.   Failure to take actions to correct these access barriers in the face of

25                           substantial harm and discrimination to blind and visually-impaired

26                           consumers, such as Plaintiff, as a member of a protected class.

27           42.    Although Defendant may currently have centralized policies for maintenance
28   and operation of the Website, Defendant lacks a plan and policy reasonably calculated to make

                                               CQ'MPLAIivIT
                                                       15
      its website fully and equally accessible to, and independently usable by, blind and other

     visually-impaired consumers, including Plaintiff.
             43.     Without injunctive relief, Plaintiff and other visually-impaired consumers will
     continue to be unable to independently use Defendant's Website in violation of their rights.
 5                                     FIRST CAUSE QF ACTION
 6    VIOLATION OIi'HE UNRUH CIVIL RIGHTS ACT, CALIFORNIA CIVIL CODE                                        5

                                   SI et sett. ITHEFACEHAUS.COMl

                                  (By Plaintiff Against All Defendants)
             44.     Plaintiff re-alleges and incorporates by reference all paragraphs alleged above
10   and each and every other paragraph in this Complaint necessary or helpful to state this cause of
     action as though fully set forth herein.
12           45.     California Civil Code    $ 51   et seq. guarantees equal access for people with
13   disabilities to the accommodations, advantages, facilities, privileges, and services of all
14   business establishments of any kind whatsoever. Defendant is systematically violating the
15   UCRA, Civil Code ( 51 et seq.
             46.    Defendant's brick-and-mortar locations are "business establishments" within
17   the meaning of the Civil Code   tj 51   et seq. Defendant generates revenue through its Website.
18   Defendant's Website is a service provided by Defendant that is inaccessible to patrons who are
19   blind or visually-impaired like Plaintiff. This inaccessibility denies blind and visually-
20   impaired patrons full and equal access to the facilities, goods, and services that Defendant
21   makes available to the non-disabled public. Defendant is violating the UCRA, Civil Code           II   51

22   et seq., by denying visually-impaired customers the goods and services provided on its
23   Website. These violations are ongoing.
24          47.     Defendants'ctions constitute intentional discrimination against Plaintiff on the
25   basis of a disability, in violation of the UCRA, Civil Code     $ 51 et   seq., because of the
26   following: Defendant has constructed a website that is inaccessible to Plaintiff; Defendant
27   maintains the Website in this inaccessible format; and, Defendant has failed to take action to
     correct and remove these barriers even after being on notice of the discrimination that such

                                                COMPLAINT
                                                        16
     barriers cause to persons with Plaintiffs disability.

              48.        Defendant is also violating the UCR.A, Civil Code                  II   51   et seq. because the

     conduct alleged herein violates various provisions of the Americans with Disabilities Act, 42
     U.S.C.   tj   12181 et seq, as amended by the ADA Amendments Act                  of 2008 (P.L. 110-325), as
     set forth above. Section 51(fl of the Civil Code provides that a violation of the right of any

     individual under the ADA also constitutes a violation of the UCRA.
              49.        The actions of Defendant nolate UCRA, Civil Code              Ij   51    et seq., and Plaintiff
     is therefore entitled to injunctive relief remedying the discrimination. Plaintiff expressly limits

     the cost of injunctive relief sought to $ 50,000 or less.
10            50.        Plaintiff is entitled to statutory minimum damages pursuant to Civil Code                 tj   52

     for each and every offense; however, Plaintiff hereby expressly limits the amount of money
12   such that the total amount Plaintiff seeks to for each and every offense shall not exceed
13   $ 24,999. 00.

14            51.        Plaintiff is also entitled to reasonable attorneys'ees and costs.
15                                                         PRAYER
16            WHEREFORE, Plaintiff prays for judgment against Defendant, as follows:
17                  1.   A Declaratory Judgment that at the commencement of this action Defendant
18   owns, maintains, and/or operates its Website in a manner which discriminates against the
19   blind, fails to provide access to blind or visually-impaired individuals, and that Defendant took
20   no action that was reasonably calculated to ensure that its Website is fully accessible to, and
21   independently usable by blind and visually-impaired individuals in violation of California's
22   Unruh Act, California Civil Code        tj   51 . er seq;

23                  2. A preliminary and permanent injunction enjoining Defendant from further

24   violations of the UCRA, Civil Code           II   51 er seq.   with respect to "thefacehaus.corn."
25                  3. A preliminary and permanent injunction requiring Defendant to take the steps

26   necessary to make thefacehaus.corn readily accessible to and usable by blind and visually-
27   impaired individuals but Plaintiff hereby expressly limits the injunctive relief to require that
28   Defendant expend no more than $ 50,000 thereon;

                                                        COMPLAIlvtT
                                                               17
                4. Plaintiff seeks no relief related to any architectural barriers to access in this

     Complaint and expressly limits all claims to injunctive relief to modifications of Defendant's
     policies and procedures related to the Website;
                5.   An award of statutory minimum statutory damages of not less than $ 4,000 per

     violation pursuant to    tj   52(a) of the California Civil Code;
                6. An additional award of $ 4,000.00 as deterrence damages for each violation

     pursuant to Johnson     v.    Guedoir, 218 F. Supp. 3d 1Q96; 2Q16 U.S. Dist. LEXIS 150740 (USDC
 8   Cal, E.D. 2016);

                7.   For attorneys'ees and expenses pursuant to all applicable laws including,
10   without limitation, Civil Code       tj   52(a),
                8.   For pre-judgment interest to the extent permitted by law;
12              9.   For costs of suit; and,
13              10. For such other and further relief as this Cond deems just and proper.

14

15                                        DEMAND FOR JURY TRIAL
16          Plaintiff hereby respectfully requests a trial by jury on all appropriate issues raised in
17   this Complaint.
18
     Dated: February 14, 2020
19

20

21                                                       Josephà Manning Jr., Esq
                                                         Attorney for Plaintiff
22



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                                                        COMPLAI'XT
                                                             18