Complaint,Petition: CESAR COTTO VS GREEN OLIVE ENTERPRISES, INC.

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                                Electronically FILED by Superior Court of California, County of Los Angeles on 02/13/2020 10:40 AM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Monroe,Deputy Clerk
                                                                                      20STCV05888
                                        Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: Michael Linfield

                            Joseph R. Manning, Jr., Esq. (State Bar Ko. 223381)
                            MANNING LAW, APC
                            20062 SW Birch Street, Ste. 200
                            Newport Beach, CA 92660
                            Office: (949) 200-8755
                            Fax: (866) 843-8308           ffice.corn
                            DisabilityRights@manning lawo
                     4
                            Attorney for Plaintiff CESAR COTTO
                     5




                                                                      SUPERIOR COURT OF CALIFORNIA
                                                             IN AND FOR THE COUNTY OF LOS ANGELES

                     9                                                                                  Case No.:
                              CESAR COTTO, an individual
                   10
                                                Plaintiff,                                              Complaint For Damages And Injunctive Relief
                   11
                                                                                                        For:
                              V.
                   12
                              GREEN OLIVE ENTERPRISES, INC., a                                               1.    VIOLATIONS OF THE UNRUH CIVIL
                   13         California corporation; and DOES 1-10,                                               RIGHTS ACT, CALIFORNIA CIVIL
                              inclusive,                                                                           CODE tj 51 et seq.
                   14
                                               Defendants.
                   15

                   16

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                   18

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                                Plaintiff CESAR COTTO (" Plaintiff") alleges the following upon information and belief
                  21
                          based upon personal knowledge:
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                                                                                    INTRODUCTION
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                                      1.          Plaintiff is a visually-impaired and legally blind person who requires screen
                  24
                          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
                                                                                                   I
     I    vision.
     2               2.   Plaintiffbrings this civil rights action against GREEN OLIVE ENTERPRISES,
     3   INC., a California corporation, (" Defendant" ) for its failure to design, construct, maintain, and
 4       operate its website (hereinafter the "Website" or "Defendant's Website" which shall refer to
     5   greenoliveca.corn, and any other website operated by or controlled by Defendant as well as
 6       any third party content which is located on or used in connection with greenoliveca.corn and
 7       any other website operated by or controlled by Defendant, for the purposes described herein)
 8       to be fully accessible to and independently usable by Plaintiff and other blind or visually-

 9       impaired people. Defendant's denial of full and equal access to the Website and therefore
10       denial of its products and services offered thereby and in conjunction with its brick-and-mortar
11       locations, is a violation of Plaintiff's rights under the California's Unruh Civil Rights Act
12       ('UCRA").
13                  3.    Plaintiff further brings this civil tights action against Defendant for failing to
14       design, construct, maintain, and operate its mobile application (" Mobile App" or "App") to be
15       fully accessible to and independently usable by Plaintiff and other blind or visually-impaired
16       people. Defendant's denial of full and equal access to its Mobile App also denies Plaintiff
17       products and services Defendant offers, which in conjunction with its physical locations is a
18       violation of Plaintiff s rights under the UCRA.
19                  4.    The California Legislature provided a clear and statewide mandate for the
20       elimination of discrimination against individuals with disabilities when it enacted the Unruh
21       Civil Rights Act, Cal. Civ. Code   $   51, er seq. Discrimination sought to be eliminated by the
22       Unruh Civil Rights Act ("UCRA") includes barriers to full integration, independent living, and
23       equal opportunity for individuals with disabilities, v.hich then necessarily includes barriers
24       created by websites and other places of public accommodation that are inaccessible to blind
25       and visually-impaired individuals.
26                  5.    Because Defendant's Website and Mobile App are not equally, independently,
27       or fully accessible to blind and visually-impaired consumers in violation of the UCRA,
28       Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies,

                                                    COMPLAINT
     1    practices, and procedures so that Defendant's Website and Mobile App will become and
  2       remain accessible to blind and visually-impaired consumers.
  3                                       JURISDICTION AND VENUE
 4               6.      This Court has subject matter jurisdiction over this action. This Court has
 5       personal jurisdiction over Defendant because it conducted and continues to conduct substantial
 6       business in the State of California, County of Los Angeles, and Defendant's offending
 7       Website and Mobile App is available throughout California.
 8               7.      Venue is proper in this Court because Defendant conducts substantial business
 9       in this County. Venue is also proper because a substantial portion       of the conduct complained
10       of herein occurred in this District.
                                                      PARTIES
12               8.      Plaintiff, at all times relevant and as alleged herein, is a resident of California,
13       County of Los Angeles. Plaintiff is legally blind and cannot use a computer without the
14       assistance of screen-reading software {othetwvise known as a "screen-reader"). However,
15       Plaintiff is a proficient user of the JAWS screen-reader and uses it to access the internet.
16       Plaintiffhas visited the Website on separate occasions using the JAWS screen-reader. During
17       Plaintiff's separate visits to Defendant*s Website, Plaintiff encountered multiple access
18       barriers which denied Plaintiff full and equal access to the facilities, goods, and services
19       offered to the public and made available to the public on Defendant's Website. Due to the
20       widespread access barriers Plaintiff encountered on Defendant's Website, Plaintiff has been
21       deterred, on a regular basis, from accessing the Website.
22              9.      Plaintiff did not encounter, nor does she in any way base her UCRA claims
23       alleged herein, upon the presence of any physical or architectural barrier in any public place of
24       accommodation.
25              10.     Plaintiff is a tester in this litigation seeking to ensure compliance with federal
26       and state law. See Civil Rights Educ. and Enforcement Center      v.   Hospitality Props. Trust, 867
27       F.3d 1093, 1096 (9th Cir. 2017).
28              11.      Plaintiff is also a consumer who wishes to access Defendant's good and

                                                   COMPLAINT
                                                          3
     services.

              12.    Plaintiff is being deterred from patronizing the Defendant's Website and brick-
     and-mortar locations on particular occasions.

              13.    Plaintiff also attempted several times to navigate Defendant's Mobile App with
     an iPhone. However, on each such occasion. Plaintiff had been denied the equal, full use, and

     enjoyment of the facilities, goods, and services offered by Defendant as a result of accessibility
     barriers on its Mobile App.

              14.   If informed that the Website has been made accessible within the meaning of
     the UCRA and the ADA, Plaintiff will return to the Website and Mobile App to test its
10   accessibility within 45 days to test such a claim of compliance with the law.
              15.   Plaintiff has standing to sue Defendant under the 1JCRA. As the California
12   Supreme Court explained in Angelucci     v.    Cenrury Supper Club,   41   Cal.4th 160 (2007),"an
13   individual plaintiff has standing under the [Unruh] Act if he or she has been the victim of the
14   defendant's discriminatory act." Id. at 173.
15            16.   Plaintiff is informed and believes, and thereon alleges Defendant is a
16   California corporation, and has its principal place of business in Gardena, California.
17   Defendant operates brick-and-mortar locations in Los Angeles County, California.
18   Defendant's brick-and-mortar locations constitute places of public accommodation. Both
19   Defendant's Website and Mobile App provide consumers with access to an array of goods,
20   services, and information related to Defendant's brick-and-mortar locations including menu
21   item descriptions, catering options, food truck schedule and details, store location
22   information, and many other benefits.
23            17.   The true names and capacities of the Defendants sued herein as DOES           I


24   through 10, inclusive, are currently unknown to Plaintiff, who therefore sues such Defendants
25   by fictitious names. Each of the Defendants designated herein as a DOE is legally responsible
26   for the unlawful acts alleged herein. Plaintiff will seek leave of Court to amend this Complaint
27   to reflect the true names and capacities of the DOE Defendants when such identities become
28   known.

                                              COMPLAINT
                                                        4
               18.      At all relevant times as alleged herein, each and every Defendant was acting as
     an agent and/or employee of each of the other Defendants and was acting within the course

     and/or scope of said agency and/or employment with the full knowledge and consent of each
     of the Defendants. Each of the acts and/or omissions complained of herein were alleged and
     made known to, and ratified by, each of the other Defendants (Defendant, together with any
     DOE Defendants, are collectively referred to hereinafter as "Defendant" or "Defendants" ).
                     VISIJALLY-IMPAIREII PFRSONS'CCESS TO THE INTERNET
              19.      The Internet has become a significant source of information, a portal, and a tool
     for conducting business, doing everyday activities such as shopping, learning, banking,
10   researching, as well as many other activities for sighted, blind and visually-impaired persons
     alike. As an essential tool for many Americans, when accessible, the Internet provides
12   individuals with disabilities great independence. Blind persons are able to access websites
13   using keyboards in conjunction with screen access sottware that vocalizes the visual
14   information found on a computer screen. This technology is known as screen-reading
15   software. Except for legally blind individuals whose residual vision allows them to use
16   magnification, screen-reading software is currently the only method a blind person can fully
17   and independently access the internet.
18            20.      Blind and visually-impaired users of Windows computers and devices have
19   several screen-reading software programs available to them.
20            21.      Job Access With Speech, otherwise known as "JAWS," is currently the most
21   popular, separately purchased screen-reading sottware program available for Windows.
22            22.      For blind and visually-impaired users of Apple operating system-enabled
23   computers and devices, the screen-reading software available, pre-installed, and built into all
24   Apple products is VoiceOver. Apple's devices, including the iPhone, have the VoiceOver
25   program integrated into their iOS operating system for use by blind and visually-impaired
26   users.
27            23.      For screen-reading software to function, the information on a website must be
28   capable of being rendered into text. If the website content is not capable of being rendered

                                               COMP   I.AINT
                                                       5
      into text, the blind or visually-impaired user is unable to access the same content available to

      sighted users using their keyboards because they are unable to see the screen or manipulate a
      mouse.

               24.    Screen-reading software is cunently the only method a blind or visually-
      impaired person may independently access the internet, websites, and other digital content.
               25.   If the website content is not capable of being rendered into text, the blind or
     visually-impaired user is unable to access and navigate the same content on a website or
     mobile app that is available to sighted users.

               26.   There are well-established industry adopted guidelines for making websites
10   accessible to visually-impaired people who require screen-reading software programs. These
     guidelines have existed for at least several years and are successfully followed by large
12   business entities who want to ensure their websites are accessible to all persons. The Web
13   Accessibility Initiative ("WAI"), an initiative of the World Wide Web Consortium developed
14   guidelines on website accessibility. Through Section 508 of the Rehabilitation Act, the federal
15   government also promulgated website accessibility standards. These guidelines, easily found
     on the Internet, recommend several basic components for making websites accessible,
17   including, but not limited to: adding invisible Alt-text to graphics; ensuring all functions can
18   be performed using a keyboard and not just a mouse: ensuring that image maps are accessible;
19   and adding headings so blind and visually-impaired people can navigate websites and mobile
20   applications just as sighted people do. Without these basic components, websites and mobile
21   applications are inaccessible to a blind person using screen-reading software.
22          27.      Common barriers encountered by blind and visually-impaired persons include,
23   but are not limited to, the following:
24                      a.   A text equivalent for every non-text element is not provided;
25                      b. Title frames with text are not provided for identification and navigation;

26                      c.   Equivalent text is not provided v hen using scripts;
27                      d. Forms with the same information and functionality as for sighted
28                           persons are not provided;

                                              COMPLAINT
                                                      6
               e.   Information about the meaning and structure of content is not conveyed

                    by more than the visual presemation of content;

               f.   Text cannot be resized without assistive technology up to 200 percent

                    without loss of content or functionality;

               g.   If the content enforces a time limit, the user is not able to extend, adjust,
                    or disable it;
               h. Web pages do not have titles that describe the topic or purpose;

               i.   The purpose of each link cannot be determined from the link text alone

                    or from the link text and its programmatically determined link context;
10            j.    One or more keyboard operable user interface lacks a mode of operation

                    where the keyboard focus indicator is discernible;
12             k. The     default human language of each web                 page   cannot    be
13                  programmatically determined;
14             1.   When a component receives focus, it may initiate a change in context;
15             m. Changing the setting     of a user interface component may automatically
16                  cause a change of context where the user has not been advised before
17                  using the component;
18            n. Labels or instructions are not provided when content requires user input;

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

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

21                  according to their specifications, elements may contain duplicate
22                  attributes andior any IDs are not unique;
23            p. Inaccessible Portable Documem Format (PDFs); and,

24            q. The name and role           of all User Interface elements cannot be
25                  programmatically determined; items that can be set by the user cannot
26                  be programmatically set, and/or notification of changes to these items is
27                  not available to user agents, including screen-reading software.
28   28.   In California and the Ninth Circuit controlling law recognizes the viability of

                                     COMPLAINT
                                             7
      Unruh and Americans with Disabilities Act (hereinafter "ADA") claims against commercial
      website and mobile application owners and operators with regard to the accessibility of such
      websites and mobile applications. Jfobies      v.   Doinino's Pizza, LLC, 17-55504, 2019 WL
      190134(9th Cir. January 15, 2019) (Holding the ADA and UCRA apply to websites and
     mobile applications, that imposing liability under Title III of the ADA and Unruh Act would
     not violate Fourteenth Amendment rights to due process, that the ADA is not impermissibly

     vague in this context, that regulated parties have received fair notice of their obligations since
      1996, that it was error to invoke the doctrine of primary jurisdiction and finally that an order

     requiring compliance with WCAG 2.0 is a possible equitable remedy); Long                v.   Live Nation
10   8'orldwide, Inc., No. C16-1961 TSZ 2018 WL 3533338 (W.D. Wash. July 23, 2018) (denying

     Defendant's summary judgment motion based on voluntary cessation and mootness and
12   finding that defendant's website is subject to the accessibility regulations under the ADA as a
13   matter of law); Carroll   v.   Fedfinancial Fed. Credit Union, 2018 WL 3212023 (E.D. Va. June
14   25, 2018) (denying Defendant's Motion to Dismissed based on jurisdiction, Title III
15   applicability, and due process arguments); Haynes       v.   Hooters of Am., LLC, 17-13170, 2018
16   WL 3030840 (11th Cir. June 19, 2018) (holding that a private settlement agreement does not
17   moot a new web access claim by a different plaintiff); Gil            v.   SMG Holdings, No. I:18-cv-
18   20107 (S.D. Fl. May 28, 2018) (denying a motion to dismiss and holding that mootness and
19   voluntary cessation defenses did not apply when defendant claimed it was already in the
20   process of correcting the barriers on its website); 71tttrston   v.   Midvale Corporation, et al., Los
21   Angeles Superior Court, Case No. BC663214 (Judge Samantha P. Jessner) (May 17, 2018)
22   (granting plaintiff s summary judgment motion finding "a plain reading of the statute, as well
23   as the [DOJ'sj treatment of websites under the ADA, indicate that Defendant's website falls

     within the categories of 'services, ... privileges. advantages, or accommodations of'
25   restaurant, which is a place of public accommodation under the ADA.'*); Castillo              v,   do-Ann
26   Stores, LLC, No. 5:17-cv-20110-KBB (N.D. Ohio February 13, 2018) (denying motion to
27   dismiss finding plaintiff has stated a cognizable website ADA claim and has standing, plaintiff
28   successfully alleged a nexus between defendant's website and its brick and mortar stores, and

                                               COMPLAINT
                                                      8
     the injunctive relief sought does not violate due process rights); Gathers                        v.   I-B00-

     FLOIVERS.corn, No. I:17-cv-10273 (Mass. February 12, 2018) (denying a motion to dismiss

     sought against ADA claims); Robles           v.   Yum.'rands, Inc. dib!a Pizza Hut, No. 2:16-cv-08211-
     ODW(SS) at *15. (C.D. Cal. Jan. 25, 2018) (Wright) (denying a motion for summary
     judgment sought against ADA and California's Lnruh Civil Rights Act claims) (" Pizza Hut
     cannot simply post a customer service phone number on its website and claim that it is in
     compliance with the ADA unless it shows that a visually-impaired customer 'will not be
     excluded, denied services, segregated or otherv ise treated differently'rom non-visually
     impaired customers who are able to enjoy full access to Pizza Hut's website" [citations
10   omitted]); Andrews           v.   Blick Art Materials, LLC, No. I:17-cv-00767-JBW-RLM (E.D.N.Y.

     Dec. 21, 2017) (Weinstein, J.} (Memorandum and Order approving settlement of website
12   accessibility case in the form of judgment); Brooke            v.   A-Ventures, LLC, No. 2:17-cv-2868-
13   HRH at 19. (A.Z. Nov. 22, 2017) (granting declaratory judgment that defendant's website did
14   not comply with ADA; defendant enjoined to ensure equal access) ("[D]efendant was in
15   violation of the Americans with Disability Act because its hotel reservations website did not
16   afford disabled persons equal access to defendant's public accommodation"); Rios             v.   New York

17      Company, Inc., No. 2:17-cv-04676-ODW (AGr) (C.D. Cal. Nov. 16, 2017) (Wright)
18   (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
20   communication claims under the ADA in a variety of contexts— including cases involving
21   allegations of unequal access to goods, benefits, and services provided through
22
           websites.'obby
            Lobby, 2017 WL 2957736, at *7'"}; Access Now, Inc.               v.   Blue Apron, LLC, No. 17-cv-
23   116-JL at 21. (C.D. N.H. November 8, 2017) (denying a motion to dismiss sought against

24   ADA claims) ("[Plaintiffs] rely on Title III of the ADA as governing the defendant's potential
25   liability and invoke compliance with the WCAG 2.0 AA standards as a sufficient condition,
26   but not a necessary condition, for such compliance, and therefore as a potential remedy.");
27   Gorecki   v.   Dave   d'c   Buster's, Inc., No. 2:17-cv-01138-PSG-AGR (C.D. Cal. October 10, 2017)
28   (Gutierrez, P.) (denying a motion for summary judgment sought against ADA and California's

                                                       COMPLAINT
                                                             9
     Unruh Civil Rights Act claims) ("a finding of liability regarding the Website's compliance
     with the ADA does not require sophisticated technical expertise beyond the ability of the
     Court" ); Kayla Reed    v.    CVS Pharmacy, Inc., Case No. 2:17-cv-03877-MWF-SK, at ~9. (C.D.

     Cal. Oct. 3, 2017) (Fitzgerald) (denying a motion to dismiss sought against ADA and

     California's Unruh Civil Rights Act claims) (" The DOJ's position that the ADA applies to
     websites being clear, it is no matter that the ADA and the DOJ fail to describe exactly how any
     given website must be made accessible to people with visual impairments. Indeed, this is often
     the case with the ADA's requirements, because the ADA and its implementing regulations are

     intended to give public accommodations maximum flexibility in meeting the statute's
10   requirements. This flexibility is a feature, not a bug, and certainly not a violation of due
     process."); Andrews    v.    Blick Art Materials, LLC,     —   F. Supp. 3d      —,   2017 WL 3278898, at *12,
12   *15-*18 (E.D.N.Y. Aug. I, 2017} (Weinstein, J.); Gomez                  v.   Lego Systems, Inc., Case I:17-cv-
13   21628-CMA (S.D. Fla. July 31, 2017} (denying a motion to dismiss an ADA claim alleging an
14   inaccessible commercial website) [ECF t)40]: Thurston              v.    Chino Commercial Bank, NA., No.
15   CV 17-01078 BRO (JCx), 2017 WL 3224681, at *5 (C.D. Cal. July 27, 2017) (citing Gorecki);
16   Markett   v.   Five Guys Enterprises LLC, No. I:17-cv-00788-KBF, slip op. at 4-6 [ECF tt33]
17   (S.D.N.Y. July 21, 2017); Gorecki         v.   Hohhy'obby      S'tores, Inc., No. 2:17-cv-01131-JFW-SK,

18   2017 WL 2957736 (C.D. Cal. June 15, 2017) (Walter, J.) (denying a motion to dismiss sought
19   against ADA and California's Unruh Civil Rights Act claims) ("[T]his is a relatively
20   straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal
21   enjoyment of goods and         services...     by not maintaining a fully accessible website. There is
22   nothing unique about this case, as federal courts have resolved effective communication claims
23   under the ADA in a wide variety of contexts — including cases involving allegations of unequal
24   access to goods, benefits and services provided through websites."); Gil                 v.   IVinn-Dixie Stores,

25   Inc., No. 16-23020-Civ-Scola,       —   F. Supp. 3d   —,   2017 WL 2547242, at *7 (S.D. Fla. June 13,
26   2017) (finding that the defendant, a large supermarket chain, had violated the plainti f1" s rights
27   under the ADA by failing to maintain an accessible website after a non-jury trial); Frazier                    v.

28   Ameriserv Financial Bank, Nos. 2:16-cv-01898-AJS (Lead Case), 17cv0031 [ECF it)07], slip

                                                    COMPLAINT
                                                           10
     op. at 20 (W.D. Pa. Apr. 21, 2017) (denying a motion to dismiss an ADA claim alleging an

     inaccessible commercial website}: Frarder         v.   Churchill Downs Inc., Nos. 2:16-cv-01898-AJS
     (Lead Case), 2:16-cv-0007 (Member Case) [ECF ¹107] slip op. at 20 (W.D. Pa. Apr. 21, 2017)

     (same); Omaha teaks.corn, Inc.       v.   Access Novv, Inc., et al., No. 8:17-cv-00060-LSC-CRZ

     [ECF ¹9-1] (D. Neb. Apr. 17, 2017} (consent decree); Access Now, Inc., et al.                                   v.

     Omahasteaks.corn, Inc., Nos. 2:16-cv-01898-AJS (Lead Case), 2:17-cv-00269-AJS (Member

     Case) [ECF ¹99] (W.D. Pa. Apr. 11, 2017 (satne); Gil                  v.   1Finn-Dixie Stores Inc.,   —   F. Supp.

     3d   —,   No. 16-23020-Civ-Scola, 2017 WL 2609330 (S.D. Fla. Mar. 15, 2017) (denying a

     motion for judgment on the pleadings sought against an ADA claim alleging an inaccessible
10   commercial website);   Nat 'I   Ass'n of the Deaf v. Harvard Univ., Case 3:15-cv-30023-MGM,
     2016 WL 3561622, at *12-*20 (D. Mass. Feb. 9, 2016) (Robertson, Mag. J.) (recommending
12   the denial of a motion to dismiss or stay predicated on the primary jurisdiction doctrine),
13   adopted in Nat'l Ass 'n of the Deaf v. Harvard Univ,, Case 3:15-cv-30023-MGM, 2016 WL
14   6540446, at *1-*3 (D. Mass. Nov. 3, 2016) (Mastroianni, J.); Nat'l Ass'n of the                           Deaf v.
15   Massachusetts Inst. of Tech., Case 3:15- cv-30024-MGM, 2016 WL 3561631, at                         *1 (D. Mass.

16   Feb. 9, 2016) (Robertson, Mag. J.) (recommending the denial of a motion to dismiss or stay
17   predicated on the primary jurisdiction doctrine), adopted in Nat'l Ass'n of the Deaf                            v.

     Massachusetts Inst. of Tech., Case 3:15-cv-30024-MGM, 2016 WL 6652471, at                         *1 (D. Mass.

19   Nov. 4, 2016) (Mastroianni, J.}: Edward Davis               v.   Orlando tFilshire Investments Ltd., et al.,
20   No. 5:15-cv-01738-MWF-KK, slip op. at 10 [ECF ¹17] (C.D. Cal. Nov. 2, 2015) (Fitzgerald,
21   J.) (denying motion to dismiss in a website accessibility case) ("the Court concludes that the
22   Complaint sufficiently alleges that the inaccessibility of the Website impedes the full and
23   equal enjoyment of the Hotel."); Sipe     v.   Huntington rVational Bank, 15-CV-1083, Doc No. 21
24   (W.D. Pa. Nov. 18, 2015) (denying motion to dismiss based on claims the DOJ had not yet
25   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

27   commercial website operator); James Patrick Brown                    v,    BPS Direct, LLC, et al., Case No.
28   LACV 14-04622 JAK (JEMx) slip op. at 4-7 [ECF ¹30] (C.D. Cal. Oct. 6, 2014) (Krondstadt,

                                                COMP LALNT
                                                            11
      J.) (denying the defendant's motion to dismiss while relying on the Target decision as
      "persuasive", and holding "the Complaint does aBege that Bass Pro Shops is a chain of brick-
      and-mortar stores and that BassPro.cons is a website providing information about Bass Pro

      Shops products, offers, and locations.... [and that] a nexus could be established here through
      discovery."); Penney      v.   Kohl's         't   Stores. Inc., et al., No. 8:14-cv-01100-CJC-DFM [ECF
                                              Dep

     ¹12] slip op. at    3    (C.D. Cal. Sept. 23, 2014) (Carney, J.) (denying a motion to dismiss and

      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.
     Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (excluding web-based services would

10   "run afoul of the purposes of the ADA and vvould severely frustrate Congress's intent that

     individuals with disabilities fully enjoy the goods, services, privileges, and advantages
12   available indiscriminately to other members of the general public" ); id. at 200-01 (" [T]he
13   legislative history of the ADA makes clear that Congress intended the ADA to adapt to
14   changes in technology.") (quoting H.R. Rep. 101-485(ll), at 108 (1990)) (" [T]he Committee
15   intends that the types of accommodation and services provided to individuals with disabilities,
16   under all of the titles of this bill, should keep pace with the rapidly changing technology of the
17   times."); Shields   v.   Walt Disney Parks          and Resorts   UX Inc., 279 F.R.D. 529, 559 (C.D. Cal.

18   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
20   websites and stating, "The lack of a widely accepted standard for website accessibility does
21   not preclude injunctive relief that would improve access to Defendants'ebsites by the
22   visually-impaired.");     Nat 'I   Federation of the IJ/ind v. Target Corp., 452 F. Supp. 2d 946, 953
23   P4.D. Cal. 2006) ("To limit the ADA to discrimination in the provision of services occurring
24   on the premises of a public accommodation would contradict the plain language of the
25   statute."); id. at 953-54 ("consistent with the plain language of the statute, no court has held
26   that under the nexus theory a plaintiff has a cognizable claim only if the challenged service
27   prevents physical access to a public accommodation. Further, it is clear that the purpose of the
28   statute is broader than mere physical access— seeking to bar actions or omissions which impair

                                                         COMPLAINT
                                                               12
     a disabled person's "full enjoyment" of services or goods of a covered accommodation. 42

     U.S.C.   tj    12182(a). Indeed, the statute expressly states that the denial of equal "participation"

     or the provision of "separate benefit[sj" are actionable under Title III. See 42 U.S.C.              tj

     12182(b)(1)(A).");      cf.   Rindel v. Rusted, No, 2017 WL 432839, at *7 (S.D. Ohio Feb. I, 2017)
     (granting a permanent injunction against the Ohio Secretary of State based on the accessibility
     of the state's website under Title II of the ADA and requiiing accessibility); Rindel v. Rusted,
     No. 17-3207 (6th Cir., Nov. 13, 2017) (defendant bears the burden of production and

     persuasion as to affirmative defenses such as fundamental alteration and subject matter of state
     election laws do not relieve defendant of these burdens); Davis            v.   BMIIBNB Travelware
10   company No. CIVDS1504682 WL2935482 (Cal.Super. March 21, 2016) (granting motion for
     summary judgment for plaintiff and ordering that defendant's website be made WCAG 2.0
12   compliant and awarding Unruh damages in favor of plaintiff).
13            29.       Each of Defendant's violations of the ADA is likewise a violation of the
14   UCRA. Indeed, the UCRA provides that any violation of the ADA constitutes a violation of
15   the UCRA. Cal. Civ. Code          fs   51(f).
16                                            FACTUAL BACKGROUND
17            30.       Defendant offers its commercial Website and Mobile App to the public.
18            31.       The Website and Mobile App offer features which should allow all consumers
19   to access the goods and services offered in connection with its brick-and-mortar locations.
20            32.       The Website provides consumers wdth access to an array of goods, services, and
21   information related to Defendant's brick-and-mortar locations which include, but are not
22   limited to, the following: menu item descriptions, catering options, food truck schedule and
23   details, store location information, and many other benefits, as well as access to various other
24   goods, services, and privileges Defendant offers on the Mobile App.
25            33.       Based on information and belief, it is Defendant's policy and practice to deny
26   Plaintiff, along with other blind or visually-impaired users, access to Defendant's Website and
27   Mobile App, and to therefore specifically deny the goods and services that are offered and
28   integrated with Defendant's brick-and-mortar locations and otherwise.

                                                     COMPLALNT
                                                        13
             34.     Due to Defendant's failure and refusal to remove access barriers to its Website

     and Mobile App, Plaintiff and visually-impaired persons have been and are still being denied

     equal access to Defendant's brick-and-mortar locations and the numerous goods, services,

     privileges, and benefits offered to the public through Defendant's Website and Mobile App.
             35.     Plaintiff cannot use a computer without the assistance of screen-reading
     software.

             36.     However, Plaintiff is a proficient user of the JAWS screen-reader and uses it to
     access the Internet.

             37.     Plaintiff has visited Defendant's Website on separate occasions using the
10   JA WS screen-reader.

             38.     While attempting to navigate the Website, Plaintiff encountered multiple
12   accessibility barriers for blind or visually-impaired people that include, but are not limited to:
13                      a.   The home page has graphics. links, and buttons that are not labeled or
14                           are incorrectly labeled, or lack alternative text ("Alt-text" ). Alt-text is
15                           invisible code embedded beneath a graphical image on a website. Web
16                           accessibility requires that Alt-text be coded with each picture so that
17                           screen-reading software can speak the Alt-text where a sighted user sees
18                           pictures. Alt-text does not change the visual presentation, but instead a
19                           text box shows when the cursor moves over the picture. The lack of
20                           Alt-text on these graphics prevents screen-readers from accurately
21                           vocalizing a description of the graphics.
22                      b. Plaintiff encountered multiple unlabeled or mislabeled buttons and

23                           links.   Without descriptive alternate text, Plaintiffs, and other screen-
24                           reader users, have no clue about the purpose or function of the button or
25                           link;
26                      c.   Plaintiff encountered multiple pages containing insufficient navigational
27                           headings requiring Plaintiff to expend substantial additional time to
28                           access information; and,

                                               CQMPLAINT
                                                      14
                        d. Plaintiff was unable to browse the menu because the menu links and

                            descriptions were inaccessible to screen reading technology, and
                            experienced difficulty in the labeling of the menu.
             39.    Due to the unlabeled buttons, lack of Alt-text, the structure of the headings and

     Website, cursor traps, and other barriers, Plaintiff was unable to fully and independently access

     the Website when visiting for the dual purpose of testing for compliance with the UCRA and

     ADA and to view menu items and find the closest brick-and-mortar location.

            40.     Since as early as September       of'019,    and until the current date, during
     Plaintiffs separate visits to the Website, Plaintiff encountered multiple access barriers which
10   denied Plaintiff full and equal access to the facilities. goods, and services offered to the public
     and made available to the public on the Website.
12          41.     In the course of several separate attempts to utilize Defendant's Mobile App,
13   Plaintiff encountered multiple access barriers which denied Plaintiff full and equal access to
14   the facilities, goods, and services offered to the public and made available to the public on
15   Defendant's Mobile App.
16          42.     Plaintiff also cannot use a mobile device without assistance of screen-reading
17   software.
18          43.     Plaintiff is a proficient Voice-Over user and regularly uses an iPhone to access
19   online content found on websites and mobile applications.
20          44.     Plaintiff also attempted to use the Mobile App with an iPhone on several
21   separate occasions using the Voice-Over screen reader.
22          45.     In the course of several separate attempts to utilize Defendant's Mobile App,
23   Plaintiff encountered multiple access barriers which denied Plaintiff full and equal access to
     the facilities, goods, and services offered to the public and made available to the public on
25   Defendant's Mobile App.
26          46.     Since at least as early as September of 2019, and until the current date, Plaintiff
27   attempted to access Defendant's Mobile App, sought additional information about Defendant's
28   goods and services offered, and attempted to do business with Defendant using Defendant's

                                              COMPLAINT
                                                    15
     IOS Mobile App. Plaintiff was unable to access information contained on the Mobile App or

     browse the Mobile App due to accessibility barriers that made the Mobile App inaccessible.

     Plaintiff was unable to do business with Defendant because of the accessibility barriers
     contained on the Mobile App and was unable browse Defendant's offerings using the Mobile

     App due to the inaccessibility of the Mobile App. While trying to navigate
             Defendants'obile
             App, Plaintiff encountered access barriers similar to those encountered on
            Defendants'ebsite.
               The accessibility barriers included, but were not limited to:

                        a.   A lack of Alt-text for images and graphics, inaccessible forms,

                             unlabeled or mislabeled buttons, inaccessible image maps, and a lack of
10                           any adequate prompting and labeling;

                        b. Inadequate navigational headings. Headings are essential for screen

12                           reader users to easily understand the page structure and to navigate.
13                           Without headings, screen reader users are forced to painstakingly read
14                           the entire page from beginning to end, rather than jump between
15                           headings to streamline navigation;
16                      c.   Plaintiff was unable to create an account because of an inaccessible
17                           signup system;
18                      d. Plaintiff was unable to make a purchase because     of an inaccessible
19                           checkout system; and,
20
                        e.   Plaintiff was unable to find a brick-and-mortar location because the
21
                             interactive map was inaccessible.
22
            47.     Due to the widespread access barriers Plaintiff encountered on the Website and
23
     Mobile App, Plaintiff has been deterred, on a regular basis, from accessing the Website and
24
     Mobile App. Similarly, the access barriers Plaintiff encountered on the Website and Mobile
25
     App have deterred Plaintiff from visiting Defendant's brick-and-mortar locations.
26
            48.     If the Website and Mobile App were equally accessible to all, Plaintiff could
27
     independently navigate the Website and Mobile App as sighted individuals do.
28

                                              COKIPLAJNT
                                                     16
             49.     Having attempted to use the Website Mobile App, Plaintiff has actual
     knowledge of the access barriers that make these services inaccessible and independently
     unusable by blind and visually-impaired people.

             50.     There are readily available, well established guidelines, available to Defendant
     on the Internet, for designing, constructing, and maintaining websites to be accessible to blind

     and visually-impaired persons. Other large business entities have used these guidelines, or
     have otherwise been able, to make their websites accessible, including but not limited to:

     adding Alt-text to graphics and ensuring that all functions can be performed using a keyboard.
     In addition, incorporating these basic changes and adding certain elements to Defendant's

10   Website and Mobile App would not fundamentally alter the nature of Defendant's business nor
     would it result in an undue burden to Defendant. Because maintaining and providing a website
12   where all functions can be performed using a keyboard would provide full, independent and
13   equal access to all consumers to the Website and Mobile App, Plaintiff alleges that Defendant
14   has engaged in acts of intentional discrimination including, but not limited to the following
15   policies or practices:
16                       a.   Construction and maintenance of a website and a mobile app that are
17                            inaccessible to visually-impaired individuals, including Plaintiff;
18                       b. Failure to construct and maintain a website and a mobile app that is

19                            sufficiently intuitive so as to be equally accessible to visually-impaired
20                            individuals, including Plaintiff; and,
21                      c.    Failure to take actions to correct these access barriers in the face of
22                            substantial harm and discrimination to blind and visually-impaired
23                            consumers, such as Plaintiff, as a member of a protected class.
24          51.     Although Defendant may currently have centralized policies for maintenance
25   and operation of the Website and Mobile App, Defendant lacks a plan and policy reasonably
26   calculated to make its website fully and equally accessible to, and independently usable by,
27   blind and other visually-impaired consumers, including Plaintiff.
28          52.     Without injunctive relief, Plaintiff and other visually-impaired consumers will

                                               CQMPLALVT
                                                       17
     continue to be unable to independently use Defendant's Website and Mobile App in violation
     of their rights.
 3                                       FIRST CAUSE OF ACTION
 4    VIOLATION OF THE UNRL'H CIVIL RICHTS ACT. CALIFORNIA CIVIL CODE                                     8

                                     51 et sett. ICRKENOLIVECA.COM1

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

20   et seq., by denying visually-impaired customers the goods and services provided on its

21   Website. These violations are ongoing.
22           56.        Defendants'ctions constitute intentional discrimination against Plaintiff on the
23   basis of a disability, in violation of the UCR.A, Civil. Code   ss   51 et seq.,   because of the
24   following: Defendant has constructed a website that is inaccessible to Plaintiff; Defendant
25   maintains the Website in this inaccessible format; and, Defendant has failed to take action to
26   correct and remove these barriers even after being on notice of the discrimination that such
27   barriers cause to persons with Plaintiff's disability.
28           57.        Defendant is also violating the UCRA, Civil Code ) 51 et seq. because the

                                                 COMPLAINT
                                                        18
     conduct alleged herein violates various provisions of the Americans with Disabilities Act, 42

     U.S.C. ) 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.
             58.    The actions of Defendant violate LCRA, Civil Code       II   51   et seq., and Plaintiff
     is therefore entitled to injunctive relief remedying the discrimination.

             59.    Plaintiff is entitled to statutory minimum damages pursuant to Civil Code          tj   52

     for each and every offense.

             60.    Plaintiff is also entitled to reasonable attorneys'ees and costs.
10                                   SECOND CAUSE OF ACTION
      VIOLATION OF THE UNRL H CIVIL RIGHTS ACT. CALIFORNIA CIVIL CODE                                        ti

12                            51 et sett. (GREEN O