Martinez v. Cot'n Wash, Inc.

Filed 8/1/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ALEJANDRO MARTINEZ, B314476

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV33139)
v.

COT’N WASH, INC.,

Defendant and Respondent.

APPEAL from the judgment of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Pacific Trial Attorneys, Scott J. Ferrell, Victoria C. Knowles
and Richard H. Hikida for Plaintiff and Appellant Alejandro
Martinez.
Lahti Helfgott, Brian E. Lahti and Jonathan A. Helfgott for
Defendant and Respondent Cot’n Wash, Inc.

____________________________
 Alejandro Martinez, as successor in interest to his brother
Abelardo Martinez, Jr., seeks reversal of a judgment of dismissal
following the successful demurrer of Cot’n Wash, Inc. (CW) to a
complaint against CW alleging a single violation of the Unruh Civil
Rights Act (Civ. Code, § 51 et seq.) (the Unruh Act). The operative
complaint alleged CW violated the Unruh Act by intentionally
maintaining a retail website that was inaccessible to the visually
impaired because it was not fully compatible with screen reading
software. On appeal, Martinez argues that the trial court erred in
concluding (1) the alleged inaccessibility of CW’s website did not
violate the Americans with Disabilities Act (42 U.S.C. § 12111
et seq.) (the ADA), specifically Title III of the ADA (42 U.S.C.
§§ 12181−12189) (Title III) and (2) the complaint did not allege
sufficient facts to establish CW’s discriminatory intent, which the
Unruh Act requires in the absence of an ADA violation.
We hold that the trial court was correct on both points. As to
intentional discrimination, the California Supreme Court has held
that the discriminatory effect of a facially neutral policy or action
is not alone a basis for inferring intentional discrimination under
the Unruh Act. (See Koebke v. Bernardo Heights Country Club
(2005) 36 Cal.4th 824, 854 (Koebke).) It follows that we cannot
infer intentional discrimination from Martinez’s alleged facts that
he made CW aware of the discriminatory effect of CW’s facially
neutral website, and that CW did not ameliorate these effects.
As to the ADA violation theory, Martinez has not alleged,
as he must in order for Title III of the ADA to apply, that CW’s
website constitutes a “place of public accommodation.” (42 U.S.C.
§ 12182(a).) Under current law, we cannot read this phrase as
including retail websites without any connection to a physical
space. The statutory language does not include a category that
encompasses such websites, and Congress has chosen not to amend

2
the ADA to clarify whether and under what circumstances a
website can constitute a “place of public accommodation”—despite
Congress recognizing over 20 years ago the lack of clarity on this
point and the resulting federal circuit split that persists today.
We cannot rely, as Martinez encourages us to, on the policy goals
of the ADA as a basis for ignoring the plain language of the statute
and doing what Congress has for decades declined to do. Nor do
we find persuasive that the United States Department of Justice
(DOJ), the regulatory agency charged with implementing the ADA,
has unofficially endorsed a view that all retail websites constitute
“place[s] of public accommodation” for purposes of the ADA.
Regardless of what the DOJ has said in amicus briefs, it has opted
not to issue any regulations or formal guidance to this effect, even
after repeated requests from Congress that the DOJ do so. This
weighs against, not in favor, of Martinez’s proposed interpretation.
We do not disagree that facilitating access to retail websites
would serve the goals of the ADA. Nonetheless, compatibility with
the goals of legislation is not the only consideration in interpreting
it. We cannot ignore the canons of statutory interpretation to
achieve the goal Martinez identifies. Nor may we act to expand
the scope of a law when Congress has chosen not to do so.
Accordingly, we affirm the judgment of dismissal.

3
 FACTS AND PROCEEDINGS BELOW
In the operative first amended complaint (FAC), Abelardo
Martinez, Jr. 1 alleges a single cause of action against CW for
violation of the Unruh Act, which provides that “[a]ll persons
within the jurisdiction of this state . . . no matter what their . . .
disability . . . are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code, § 51,
subd. (b).) 2

A. Allegations of the FAC
The FAC alleges the following facts: CW “owns, operates
and provides to the public” a website that “provides access to
[CW’s] array of products and services, including descriptions of its
products, . . . [and an] online shop.” CW is not alleged to offer any
products and services at any physical location, or in any manner
other than through its website.
Martinez is “permanently blind and uses screen readers
in order to access the internet and read website content.” There
are “well-established, industry standard guidelines for ensuring

1 Abelardo Martinez, Jr. died during the pendency of this
appeal. We subsequently granted a joint motion to substitute
Martinez’s brother, Alejandro Martinez, as his successor in
interest pursuant to Code of Civil Procedure sections 377.31,
377.32, and 903. We will use the surname “Martinez” to refer
both to the individual described in the FAC and the current
appellant.
2 CW filed a demurrer to Martinez’s original complaint,
which the court sustained with leave to amend, based on
insufficiency of the allegations to support intentional
discrimination, either by establishing actual intent or an
ADA violation. On March 22, 2021, Martinez filed the FAC.

4
websites are accessible to blind and visually-impaired people”
using screen reading software. “[The] guidelines recommend
several basic components for making websites accessible” including
“adding invisible alternative text to graphics, ensuring that all
functions can be performed using a keyboard and not just a mouse;
ensuring that image maps are accessible, and adding headings
so that blind people can easily navigate websites. Without these
very basic components, a website will be inaccessible to a blind or
visually-impaired person using a screen reader.”
The FAC alleged that “at all relevant times, it was [CW’s]
policy and practice to deny blind users, including [Martinez],
equal enjoyment of and access to the website” by “fail[ing] and
refus[ing] to remove access barriers on the website” “that prevent
free and full use by [Martinez] and other blind persons using
screen reading software.”
The FAC further alleges CW “failed to take adequate
action to correct these barriers even after being notified of the
discrimination that such barriers cause,” and lays out the manner
in which Martinez so notified CW. Specifically, on August 13,
2020, Martinez’s counsel sent CW a letter via overnight mail. The
letter provided: “In short, your website (http://www.dropps.com/)
is not fully accessible to visually-impaired individuals. Indeed,
the California Supreme Court recently confirmed that anti-
discrimination laws apply to commercial websites. We urge you to
consult your own counsel about your rights and obligations in this
emerging area of law. [¶] We plan to file suit in the near future.
If you wish to discuss this matter, your counsel should promptly
contact me.” (Fn. omitted.) The letter did not identify any specific
features of the website that were not accessible to Martinez or the
method by which CW could make it compliant.

5
 On August 20, 2020 (a week later), CW’s counsel responded
with an email indicating that CW’s website “conformed with ‘Level
2’ of version 2.1 of the Web Content Accessibility Guidelines . . .
and invited [Martinez] to identify ‘a particular issue’ to which
[Martinez’s] letter had referenced.”
On August 24, 2020, Martinez’s counsel sent CW’s counsel
“an email that, inter alia, offered to provide, upon reasonable
request, a courtesy copy of [Martinez’s] audit report documenting
the communication barriers existing on the website, and a pre-
filing settlement demand.” CW’s counsel requested the report on
August 25, 2020, which Martinez’s counsel sent later that same
day. Martinez had performed the audit “of four specific webpages
on the website” using “the well-known, free, automated web
accessibility evaluation tool known as WAVE,” “one of 162 web
accessibility evaluation tools” identified on a public webpage.
On Sunday, August 30, 2020, Martinez’s counsel sent
CW’s counsel an email “expressing [Martinez’s] intention to file
a complaint against [CW] during that week in light of the fact
that [Martinez’s] counsel had received no substantive response
to [Martinez’s] settlement demand of August 24, 2020.” The next
day (August 31, 2020), CW’s counsel sent Martinez an email that
confirmed that CW had reviewed the audit report, but “questioned
[its] ‘meaning’ and asserted that ‘it does not answer any of our
questions.’ ” The email also reiterated CW’s view that it complied
with applicable guidelines and “stated for the first time that [CW]
‘ha[d] also engaged a consultant to ensure ongoing compliance.’ ”
CW provided no further details about the consultant.
Martinez filed suit that same day.

6
 B. Relevant Procedural History
In June 2021, the court sustained CW’s demurrer to the
FAC, without leave to amend, and thereafter entered a judgment
of dismissal. Although the court’s order does not explain its
reasoning, the parties’ arguments at the hearing focused on the
two issues that had been the subject of the court’s written ruling
sustaining CW’s demurrer to the original complaint, namely:
(1) Whether Martinez had alleged facts establishing intentional
discrimination, and (2) Whether CW’s website constituted a “place
of public accommodation” for purposes of the ADA. Martinez
timely appealed.

DISCUSSION
The Unruh Act provides: “All persons within the jurisdiction
of this state . . . no matter what their . . . disability . . . are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.” (Civ. Code, § 51, subd. (b).) “A plaintiff can recover
under the [Unruh Act] on two alternate theories: (1) a violation
of the ADA (Civ. Code, § 51, subd. (f)); or (2) denial of access to
a business establishment based on intentional discrimination.”
(Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th
1048, 1059 (SDCCU).)
On appeal, Martinez contends the FAC alleges facts
sufficient to establish an Unruh Act claim under both theories.
As to Martinez’s first Unruh Act theory, we disagree that CW’s
response to Martinez’s complaints about discriminatory effects
of the facially neutral structure of CW’s website is sufficient to
establish intentional discrimination. As to Martinez’s second
Unruh Act theory, we conclude CW’s website is not a “place of

7
public accommodation” for the purposes of the ADA, and that the
FAC therefore fails to allege a violation of the ADA.

I. The FAC Does Not Allege Facts Establishing
Intentional Discrimination
Unless an Unruh Act claim is based on an ADA violation,
the act requires a claimant to prove “ ‘intentional discrimination.’ ”
(Koebke, supra, 36 Cal.4th at p. 854.) A claimant may not “rel[y]
on the effects of a facially neutral policy on a particular group . . .
to infer solely from such effects a discriminatory intent.” (Ibid.;
see also ibid. [“ ‘[a] disparate impact analysis or test does not
apply to Unruh Act claims’ ”].) Thus, absent an ADA violation, the
Unruh Act requires allegations supporting “ ‘willful, affirmative
misconduct’ ” (id. at p. 853) with the specific intent “to accomplish
discrimination on the basis of [a protected trait].” (Id. at p. 854.)
Although “evidence of disparate impact [may] be probative of
intentional discrimination in some cases” under the Unruh Act,
it cannot alone establish such intent. (Ibid, italics omitted.)
Martinez argues that the FAC alleges such “ ‘willful,
affirmative misconduct’ ” (Koebke, supra, 36 Cal.4th at p. 853)
sufficient to establish intentional discrimination and thus states
a cause of action under the Unruh Act on that independent basis.
Specifically, he argues the FAC allegations establish CW “ ‘failed
to take adequate actions to correct’ ” accessibility barriers in its
website “ ‘even after being notified’ ” of them in correspondence
from Martinez’s counsel. (Boldface and italics omitted.) But if,
under the reasoning of Koebke, Martinez cannot establish CW’s
intent to discriminate by showing only that its website does not
allow visually impaired individuals the same access available
to those who are not visually impaired (i.e., a disparate effect
of a neutral structure), it follows that CW’s failure to address
this disparate effect likewise cannot establish CW’s intent to

8
discriminate. (Koebke, supra, at p. 854; see Belton v. Comcast
Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1237−1239
(Belton); see id. at pp. 1229−1230 & 1237 [defendant’s practice of
offering music services and television programming as a package
without an option for consumers to buy only music services alone
“applied equally to sighted and blind subscribers” was neutral on
its face and thus not actionable despite alleged disproportionate
impact on blind people]; see also Greater Los Angeles Agency on
Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d
414, 426−427 (GLAAD) [rejecting as part of a “misguided effort
to import [a] ‘deliberate indifference’ standard into the Unruh Act
context” plaintiff ’s attempt to prove intentional discrimination
under the Unruh Act based in part on defendant’s refusing
plaintiff ’s request that defendant provide captioning for its videos
on CNN.com when defendant’s “policy of displaying online video
programming without closed captioning applied equally to all
CNN.com visitors, hearing-impaired or not”].)
Martinez attempts to distinguish federal cases reaching
a similar result on the basis that the defendants in those cases
took more corrective action than did CW after being informed that
a facially neutral general policy was having a disparate impact on
disabled individuals. (See, e.g., GLAAD, supra, 742 F.3d at p. 426
[noting in connection with intentional discrimination analysis
that defendant had “respon[ded] to [plaintiff ’s] captioning request”
by “stat[ing] that it offered a number of text-based services and
explain[ing] that it would be ‘ready to provide whatever web
access is ultimately required’ by the [Federal Communications
Commission’s] then-pending captioning rules”]; Cullen v. Netflix,
Inc. (N.D.Cal. 2012) 880 F.Supp.2d 1017, 1024 [“allegations
demonstrating [defendant’s] efforts to improve access for hearing-
impaired customers” such as that “the rate at which [defendant]

9
is captioning content has continued to increase since 2008”
prevented an inference of intentional discrimination under
the Unruh Act]; see also Wilkins-Jones v. County of Alameda
(N.D.Cal. 2012) 859 F.Supp.2d 1039, 1052–1053 [plaintiff ’s
“alleg[ations] that [d]efendants did not fully and timely comply
with, e.g., her requests for medication (some were provided)”
and that her requests for a wheelchair were refused “based on
the inadequate assessments performed by [d]efendants” were
“insufficient to reasonably infer discriminatory intent” under the
Unruh Act].) To the extent those federal cases suggest an Unruh
Act plaintiff can prove intentional discrimination solely through
a defendant’s failure to adequately respond to complaints about
discriminatory effects of a neutral policy or action—and we are not
convinced that they all do—we disagree with them as inconsistent
with Koebke.
Martinez cites Ruiz v. Musclewood Property Investments,
LLC (2018) 28 Cal.App.5th 15 (Ruiz) for the proposition that,
Koebke notwithstanding, a defendant’s failure to correct a known
accessibility problem resulting from an individual’s disability
can support an inference that the defendant is intentionally
discriminating against that individual based on his disability.
(Id. at p. 22.) Ruiz involved a claim under the Disabled Persons
Act, Civil Code section 54 et seq. (the DPA), not the Unruh Act.
(Ruiz, supra, 28 Cal.App.5th at p. 21; see Civ. Code, § 54.3,
subd. (a) [providing cause of action against “[a]ny person or
persons, firm or corporation who denies or interferes with
admittance to or enjoyment of the public facilities . . . or otherwise
interferes with the rights of an individual with a disability under
Sections 54, 54.1 and 54.2”].) The court in Ruiz concluded that
the “[d]efendants’ guard dog’s repeated attacks on plaintiff ’s guide
dog and defendants’ alleged knowledge of those attacks” over the

10
course of almost six months “permit[ted] a reasonable inference of
intent” to discriminate against the plaintiff, who was blind. (Ruiz,
supra, at p. 22.) Because the DPA does not require intent, however
(see Civ. Code, § 54.3, subd. (a)), the court’s conclusion regarding
intent is dictum, even as it applies to the DPA. (Ruiz, supra, at p.
21.) In any case, applying Ruiz’s DPA-related dictum to an Unruh
Act claim would be inconsistent with Koebke. Ruiz does not
conclude otherwise. Indeed, Ruiz does not even mention Koebke or
the Unruh Act. We thus disagree that Ruiz allows Martinez to
prove intentional discrimination under the Unruh Act based on
CW’s failure to change a facially neutral policy or action—here,
the structure of the CW website—in response to Martinez’s
complaints.
Because Koebke is a Supreme Court decision contrary to
Ruiz’s dictum related to intent, it is not surprising that Martinez
has not cited (nor are we aware of) any California case applying
the intent-related dictum in Ruiz to an Unruh Act claim. Nor
are we persuaded by the unpublished federal cases Martinez
cites to support applying this concept in the Unruh Act context.
(See Martinez v. Adidas America, Inc. (C.D.Cal. July 9, 2019,
No. EDCV 19-841) 2019 WL 3002864; Thurston v. ClearPath
Lending, Inc. (C.D.Cal. Jan. 28, 2019, No. SACV 18-2094) 2019
WL 366405.) Not only are these cases not binding on this court,
they also assess federal question jurisdiction, and therefore
deal only indirectly with the viability of a particular Unruh
Act claim. (See Martinez v. Adidas America, Inc., supra, 2019
WL 3002864 at p. *4 [concluding Unruh Act complaint plausibly
alleged a theory of intentional discrimination under a non-ADA
legal theory]; Thurston v. ClearPath Lending, Inc., supra, 2019
WL 366405 at p. *3 [same].) Indeed, neither of these cases
analyzes the intent issue in any depth, and thus neither is helpful

11
on this point. (See Martinez v. Adidas America, Inc., supra, 2019
WL 3002864 at p. *4; Thurston v. ClearPath Lending, Inc., supra,
2019 WL 366405 at p. *3.)
For these reasons, we do not recognize a failure to address
known discriminatory effects of a policy as alone sufficient to
establish intentional discrimination under the Unruh Act, and the
FAC could not have stated a cognizable Unruh Act claim on this
basis.

II. The FAC Does Not Allege Facts Establishing
a Violation of the ADA, Because CW’s Website
Is Not a “Place of Public Accommodation”
We next turn to the issue of whether the FAC states an
Unruh Act cause of action based on a violation of the ADA, which
does not require proof of intentional discrimination. (See Munson
v. Del Taco, Inc. (2009) 46 Cal.4th 661, 673 [need not prove intent
to establish Unruh Act claim based on ADA violation].) Title III
“prohibits discrimination against disabled individuals by private
entities.” (SDCCU, supra, 50 Cal.App.5th at p. 1059.) It provides:
“No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation.” (42 U.S.C.
§ 12182(a), italics added.) To establish a Title III violation, a
plaintiff must show: (1) a covered disability; (2) that “the
defendant is a private entity that owns, leases, or operates a place
of public accommodation; and (3) the plaintiff was denied public
accommodations by the defendant because of [the] disability.”
(Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730, italics
added; accord, SDCCU, supra, at p. 1060.)

12
 A. Case Law Is Inconsistent Regarding When a
Website Constitutes a “Place of Public
Accommodation” for Purposes of a Title III
Violation
The question before us is whether CW’s website constitutes
a “place of public accommodation” for the purposes of Title III.
(42 U.S.C. § 12182(a).) “The ADA defines the phrase ‘. . . public
accommodation’ by enumerating 12 categories of covered ‘places’
and ‘establishments,’ giving nonexclusive examples of types of
enterprises falling into each category. [Citations.] The listed
examples mainly reference physical locations. The implementing
regulations similarly define a public accommodation by referring
to a ‘facility,’ which is in turn defined as ‘all or any portion of
buildings, structures, sites, complexes, equipment, rolling stock . . .
or other real or personal property, including the site where the
building, property, structure, or equipment is located.’ ” 3 (SDCCU,
supra, 50 Cal.App.5th at pp. 1060−1061, fn. omitted, quoting
42 U.S.C. § 12181(7)(A)−(L) & 28 C.F.R. § 36.104 (2022).) “A
website is not identified in any of the statutory categories. This
is not surprising as there were no commercial websites when the
ADA was enacted in 1990. But in the 30 years since, websites
have become central to American life. They are widely used by

3 Recently (in June 2020) the Court of Appeal for the Fourth
Appellate District thoughtfully and thoroughly summarized the
state of the law in this area, which has not significantly changed
in the two years since then. (SDCCU, supra, 50 Cal.App.5th
at pp. 1060−1064.) In the interest of efficiency, rather than
reinventing the proverbial wheel, we draw heavily from the court’s
summary in describing the legal landscape that informs the issue
on appeal here, which SDCCU did not have occasion to reach. (See
id. at p. 1071 [“we do not reach the legal issue whether the ADA
applies to websites even without a nexus to a physical place”].)

13
both consumers and businesses to communicate information and
conduct transactions, and are now essential tools in conducting
daily affairs. Thus, the issue whether websites are subject to
ADA requirements has been the subject of a growing number
of lawsuits, judicial attention, and academic commentary.
[Citations]. [¶] The regulatory agency charged with implementing
the ADA [(the DOJ)] has previously endorsed the applicability of
Title III to ‘ “[w]eb sites of public accommodations,” ’ but has not
provided specific regulatory guidance.” 4 (SDCCU, supra, at
p. 1061.)

1. Conflicting Views of Federal Courts
“[T]he courts have reached different conclusions on the
issue whether a website is a public accommodation. The federal
courts have expressed two main views.” (SDCCU, supra, 50
Cal.App.5th at p. 1061.) One view “is that websites are ‘public
accommodations’ within the meaning of the ADA. This approach
has been adopted by courts in the First, Second, and Seventh
Circuits. (National Assn. of the Deaf v. Harvard University
(D.Mass. 2019) 377 F.Supp.3d 49, 57−59 . . . ; Gil [v. Winn Dixie
Stores, Inc. (S.D.Fla. 2017)] 242 F.Supp.3d [1315,] 1318−1319
[(Gil)]; see Carparts Distribution Center v. Automotive Wholesaler’s
Assn. (1st Cir. 1994) 37 F.3d 12, 19−20 (Carparts); [National Assn.
of the Deaf v.] Netflix, Inc. [(D.Mass. 2012)] 869 F.Supp.2d [196,]
201−203 [(Netflix)]; Doe v. Mutual of Omaha Ins. Co. (7th Cir.
1999) 179 F.3d 557, 559 [(Mutual of Omaha)]; Access Living of
Metropolitan Chicago v. Uber Technologies, Inc. (N.D.Ill. 2018)
351 F.Supp.3d 1141, 1155−1156; Pallozzi v. Allstate Life Ins. Co.

4The DOJ’s stated views on this issue and their role in our
analysis are addressed in more detail in Discussion part II.C, post.

14
(2d Cir. 1999) 198 F.3d 28, 32 [(Pallozzi)]; Andrews v. Blick Art
Materials, LLC (E.D.N.Y. 2017) 268 F.Supp.3d 381, 390−393 . . . ;
National Federation of the Blind v. Scribd Inc. (D.Vt. 2015) 97
F.Supp.3d 565, 567−576 . . . .) [¶] Courts adopting this view
have relied on the ‘service establishment[s]’ category of the
statutory definition, and particularly the fact that ‘travel service’
is contained in the illustrative list of these establishments ([42
U.S.C.] § 12181(7)(F) . . . ), suggesting that Congress must have
contemplated a public accommodation would ‘include providers of
services which do not require a person to physically enter an actual
physical structure.’ (Carparts, supra, 37 F.3d at p. 19; see Scribd,
supra, 97 F.Supp.3d at p. 572.) The Carparts court observed, ‘It
would be irrational to conclude that persons who enter an office
to purchase services are protected by the ADA, but persons who
purchase the same services over the telephone or by mail are
not. . . .’ (Carparts, [supra,] at p. 19; see Andrews, supra, 268
F.Supp.3d at p. 396; Scribd, [supra,] at pp. 572−573.) [¶] These
courts have also emphasized the critical nature of websites for
transacting business in one’s daily life, and that Congress made
clear its intention that the ADA adapt to changes in technology.”
(SDCCU, supra, 50 Cal.App.5th at p. 1062.)
The second view of the issue taken by federal courts “is
that websites are not ‘public accommodations’ under the ADA,
but a denial of equal access to a website can support an ADA
claim if the denial has prevented or impeded a disabled plaintiff
from equal access to, or enjoyment of, the goods and services
offered at the defendant’s physical facilities. This view has
been adopted by courts in the Third, Sixth, Ninth, and Eleventh
Circuits. (Gil, supra, 242 F.Supp.3d at p. 1319; see Robles [v.
Domino’s Pizza, LLC (9th Cir. 2019)] 913 F.3d [898,] 905−906
[(Robles)]; Menkowitz v. Pottstown Memorial Medical Ctr. (3d Cir.

15
1998) 154 F.3d 113, 122 . . . ; Mahoney v. Bittrex, Inc. (E.D.Pa.
Jan. 14, 2020, No. CV 19-3836) 2020 WL 212010, p. *2 . . . ;
Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006,
1010−1014 . . . ; Castillo v. Jo-Ann Stores, LLC (N.D.Ohio 2018)
286 F.Supp.3d 870, 876−881 . . . ; Haynes v. Dunkin’ Donuts, LLC
(11th Cir. 2018) 741 Fed. Appx. 752, 754 . . . ; Gomez v. General
Nutrition Corp. (S.D.Fla. 2018) 323 F.Supp.3d 1368, 1375 . . . ;
see also Rendon v. Valleycrest Productions, Ltd. (11th Cir. 2002)
294 F.3d 1279, 1284−1286.)” (SDCCU, supra, 50 Cal.App.5th at
p. 1063.)
“ The courts adopting this narrower . . . definition of a
‘public accommodation’ have relied on Congress’s explicit listing
of the type of places considered to be ‘public accommodations,’ and
have emphasized that essentially all of these categories describe
a physical location. [Citations.] With respect to [42 U.S.C.]
section 12181(7)(F)’s identification of ‘service establishment[s]’
such as a ‘travel service,’ these courts have noted that under the
statutory construction canon ‘noscitur a sociis,’ a statutory term
must be construed in the context of the accompanying words,
thus supporting that a ‘travel service’ also identifies a physical
place. [Citations.] [¶] But these courts also recognize that a
website can be important to providing access to a defendant’s
public accommodation (physical premises) and to a disabled
person’s ability to use and enjoy services provided at those places,
and thus to the extent barriers on the website impinges on the
plaintiff ’s ability to access such benefits at a physical premises, the
claim can be actionable under a nexus theory. (See Robles, supra,
913 F.3d at pp. 904−906; [citations].) The rationale underlying
the adoption of this nexus standard mirrors many of the public
policies discussed by the courts in adopting the broader view that
all websites are directly subject to the ADA, e.g., that Congress

16
would have intended this result given the growing importance of
websites for consumers and businesses. [Citation.]” (SDCCU,
supra, 50 Cal.App.5th at pp. 1063–1064, fn. & italics omitted.)

2. Relevant California Precedent
The limited California case law on this topic offers little
guidance in navigating this federal circuit split. At least two
California Courts of Appeal have applied the nexus analytical
framework in assessing whether a website is a place of public
accommodation. (See SDCCU, supra, 50 Cal.App.5th 1048;
Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston).)
Because both these cases determined the requisite nexus existed,
however, neither provided an occasion for the court to consider
under what circumstances, if any, a standalone website can meet
this definition.
In Thurston, a blind woman sued a restaurant for disability
discrimination under the Unruh Act for maintaining a website that
was incompatible with her screen reading software. (Thurston,
supra, 39 Cal.App.5th at pp. 636−638.) Thurston applied a nexus-
based approach and upheld summary judgment in the plaintiff ’s
favor on a theory that the restaurant had violated the ADA.
(Thurston, supra, at pp. 642−646.) In so doing, Division Eight
of this court explained that “including websites connected to
a physical place of public accommodation is not only consistent
with the plain language of Title III, but it is also consistent
with Congress’s mandate that the ADA keep pace with changing
technology to effectuate the intent of the statute.” (Thurston,
supra, at p. 644.) It further noted, however, that because
the restaurant had a physical presence, the court “need not
consider . . . the wholly hypothetical question whether Title III
governs a website unconnected to a physical place of public

17
accommodation offering only purely Internet-based services or
products.” (Ibid.)
SDCCU similarly applied the nexus standard to an
ADA-based Unruh Act claim regarding the accessibility of a
website of a bank that maintained physical facilities. (SDCCU,
supra, 50 Cal.App.5th at pp. 1053 & 1070−1071.) “Because [the
court] . . . concluded [the plaintiff ’s] allegations were sufficient
to satisfy the nexus standard, [the court] [did] not reach the legal
issue whether the ADA applies to websites even without a nexus
to a physical place.” (SDCCU, supra, at p. 1071.)
Belton, supra, 151 Cal.App.4th 1224 addresses the related
issue of whether a digital cable service constitutes a place of public
accommodation for the purposes of the ADA. In Belton, cable
subscribers brought an action against a cable service provider,
challenging the provider’s practice of offering radio and music
service only when bundled together with television service. The
plaintiff ’s claim was that “the [television] programming provided
in the basic cable tier is ‘inaccessible’ to blind people, and therefore
[the cable provider] must accommodate blind individuals by
providing FM or music services á la carte.” (Belton, supra, 151
Cal.App.4th at p. 1238.) The court affirmed summary judgment
for the cable provider on that basis that, in order “to state a claim
under the ADA, plaintiffs must show that they have been denied
access to a place of public accommodation and, as a matter of law,
cable services are not such a place.” (Belton, supra, at p. 1238,
italics omitted.) In so holding, Belton relied heavily on and
adopted the reasoning of Torres v. AT&T Broadband, LLC (2001)
158 F.Supp.2d 1035, which held that a digital cable service was
not a place of public accommodation. (Belton, supra, at p. 1238,
citing Torres, supra, at p. 1037.) In the language Belton quotes
from Torres, the court explained that “ ‘[t]he ADA includes

18
an exhaustive list of private entities that constitute a public
accommodation, and a digital cable system is not one of them.’ ”
(Belton, supra, at p. 1238, quoting Torres, supra, at p. 1037.)
Belton also relies on Torres’s further “reject[ion] [of] the plaintiff ’s
argument that ‘when he uses the defendants’ digital cable
channel menu, his television set becomes a place of exhibition
or entertainment. [T]he plaintiff ’s home cannot reasonably be
classified as a place of public exhibition or entertainment. Thus,
neither the digital cable system nor its on-screen channel menu
can be considered a place of public accommodation within the
meaning of the ADA.’ ” (Belton, supra, at p. 1238−1239, italics
omitted, quoting Torres, supra, at pp. 1037–1038.)
CW argues that Belton is dispositive on the public
accommodation issue and requires us to reject an interpretation
of “place of public accommodation” that encompasses websites
without any connection to a physical space. But Belton is
distinguishable in terms of its facts and reasoning, and thus
does not dictate our analysis in the instant appeal. Namely,
Belton involved a very different type of digital “place” than the
one at issue here. The fact that one type of digital place (a digital
cable menu or system) does not constitute any of the “public
accommodation” listed in Title III does not mean another type of
digital place (a retail website) also does not. Belton concluded that
a digital cable platform is not a modern-day version of “a motion
picture house” (or any other statutorily enumerated type of public
accommodation). (42 U.S.C. § 12181(7)(C).) We do not necessarily
disagree. But that does not preclude us from concluding that
a different category referenced in the relevant statute (“sales
and rental establishment[s]”) includes a different digital place
(a retail website like CW’s). And Belton does not expressly rely
on the reasoning in Torres regarding the definition of “facility”

19
in the implementing regulations of the ADA. Belton thus does not
answer the question posed by this appeal. 5

B. Considered Together, the Plain Language of
the Statute, Maxims of Statutory Construction,
and Legislative History Pre-dating the Passage
of Title III Do Not Establish That Purely
Digital Retail Websites Are “Places of Public
Accommodation”
“[T]he fundamental goal of statutory interpretation is to
ascertain and carry out the intent of the Legislature.” (People v.
Cruz (1996) 13 Cal.4th 764, 782.) “ ‘To determine legislative
intent, a court begins with the words of the statute, because
they generally provide the most reliable indicator of legislative
intent.’ [Citation.] . . . [Citation.] ‘If there is no ambiguity in
the language, we presume the Legislature meant what it said
and the plain meaning of the statute governs.’ ” (Diamond
Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th
1036, 1047.) We will not follow the plain meaning of the statute
if to do so “would inevitably frustrate the manifest purposes of
the legislation as a whole or lead to absurd results.” (In re Ge M.
(1991) 226 Cal.App.3d 1519, 1523.)
Martinez argues that the plain meaning of “place of public
accommodation” is alone sufficient for us to adopt the broader
view taken by several federal courts—namely, that a physical
place is not a necessary component of the ADA’s definition of a
place of public accommodation. (See, e.g., Carparts, supra, 37 F.3d
at pp. 19−20; Netflix, supra, 869 F.Supp.2d at pp. 201−203; Mutual

5Nor, for that matter, do the other California decisions noted
above, Thurston and SDCCU, as both expressly disclaim that they
reach this issue. (SDCCU, supra, 50 Cal.App.5th at p. 1071;
Thurston, supra, 39 Cal.App.5th at p. 644.)

20
of Omaha, supra, 179 F.3d at p. 559; Pallozzi, supra, 198 F.3d
at p. 32.)
We disagree that the plain language of the statute is
alone sufficient to decide the issue—let alone sufficient to decide
the issue in Martinez’s favor. First, the plain meaning of the
term “place” weighs against adopting Martinez’s proposed
interpretation. Dictionaries “overwhelmingly” define “place”
as involving a physical location. 6 (Winegard, supra, 556 F.Supp.3d
at p. 179.) Neither Title III nor any implementing regulations
provide a different definition of the word for the purposes of
Title III. Nor does the state of technology when the ADA was
passed in 1990 suggest that Congress was unaware that the term
carried a connotation of physical space and thus could exclude
certain “sales and retail establishments” from the scope of Title III
based on a lack of connection to a physical space. “[T]here were
countless . . . businesses operating outside of brick-and-mortar
premises in 1990, including some that had been in operation for
decades,” such as mail order catalogs. (Winegard, supra, 556
F.Supp.3d at pp. 177−178.) Congress’s decision to nevertheless use
the phrase “place,” the plain meaning of which involves physical
space, could easily be understood as an intentional exclusion

6 “Webster’s Third [New International Dictionary], for
example, begins with the following definitions: ‘1. open space in
a city, space, locality’; ‘1.a. a way for admission or transit’; ‘1.b.
physical environment’; ‘1.c. physical surroundings.’ (Webster’s
Third New International Dictionary 1727 (2002).) Webster’s
Second [New International Dictionary], similarly, begins with:
‘An open space, or square, in a city or town.’ (Webster’s Second
New International Dictionary 1877 (1945).)” (Winegard v.
Newsday LLC (E.D.N.Y. 2021) 556 F.Supp.3d 173, 179
(Winegard).)

21
of businesses without any physical presence from the scope
of Title III—even if they might constitute “sales and retail
establishments” under section 12181(7) of title 42 of the United
States Code. Finally, the United States Supreme Court has
recently noted “place” connotes a physical space, at least in the
context of a New Jersey law protecting against discrimination in
“places of public accommodation.” (See Boy Scouts of America v.
Dale (2000) 530 U.S. 640, 657.) Specifically, the court reversed
a summary judgment ruling that treated the Boy Scouts
organization as a “place of public accommodation” under
New Jersey law, noting that, although such laws have been
interpreted broadly, “the New Jersey Supreme Court went a step
further and applied its public accommodations law to a private
entity without even attempting to tie the term ‘place’ to a physical
location.” (Ibid.) Both the plain meaning of the word, and its
meaning considered in historical context, do not support Martinez’s
proposed interpretation of “place of public accommodation.”
Turning to the entire phrase, “place of public
accommodation,” the plain meaning of the statute’s language is
not dispositive, because there is no “plain meaning” of this phrase.
Decades of conflicting federal case law interpreting it establishes
that, instead, the term is ambiguous.
The term “facility”—a necessary component of the definition
of “place of public accommodation” under the Code of Federal
Regulations (28 C.F.R. § 36.104 (2022))—is ambiguous for largely
the same reason.
“When the statutory text is ambiguous, or it otherwise fails
to resolve the question of its intended meaning,” we proceed to the
second step, and “look to the statute’s legislative history and the
historical circumstances behind its enactment.” (Klein v. United
States of America (2010) 50 Cal.4th 68, 77.) “In this step, courts

22
may ‘turn to secondary rules of interpretation, such as maxims
of construction, “which serve as aids in the sense that they express
familiar insights about conventional language usage.” ’ ” (Alejo v.
Torlakson (2013) 212 Cal.App.4th 768, 787 (Alejo), quoting Katz v.
Los Gatos-Saratoga Joint Union High School Dist. (2004) 117
Cal.App.4th 47, 55.) Martinez argues that these tools of statutory
interpretation—in particular legislative history—support his
proposed construction of Title III. For reasons we discuss below,
on balance, these interpretative tools do not provide a basis on
which we can adopt Martinez’s proposed interpretation. Rather,
they lead us to the opposite conclusion.
Maxims of statutory construction support adopting a narrow
interpretation of “place of public accommodation.” As previously
noted, regulations define “place of public accommodation” as
“a facility operated by a private entity whose operations affect
commerce and fall within at least one of ” the 12 categories
specifically listed in section 12181(7) of title 42 of the United
States Code. (28 C.F.R. § 36.104 (2022).) Regulations further
define “facility” under Title III as “all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real
or personal property, including the site where the building,
property, structure, or equipment is located.” (28 C.F.R. § 36.104
(2022).) “[T]he expression of certain things in a statute necessarily
involves exclusion of other things not expressed—expressio unius
est exclusio alterius.” (Henderson v. Mann Theatres Corp. (1976)
65 Cal.App.3d 397, 403.) Thus, the only way a website might
constitute a “facility” is if it qualifies as one of these items in the
definition of “facility.”
Martinez urges that a website qualifies as “other personal
property” and therefore constitutes a “facility.” But “a word

23
is known by the company it keeps” and should not be given “a
meaning so broad that it is inconsistent with its accompanying
words.” (Yates v. United States (2015) 574 U.S. 528, 543; see
also People v. Garcia (2016) 62 Cal.4th 1116, 1124 [recognizing
and applying the principle of noscitur a sociis].) The term
“other . . . personal property” appears at the end of a list of
exclusively physical spaces and, as to “equipment” or other
“personal property,” presupposes the existence of a “site where
the . . . property . . . is located.” (28 C.F.R. § 36.104 (2022).) Under
the principles of noscitur a sociis and expressio unius est exclusio
alterius, it would seem that a website cannot constitute a “facility”
and thus, cannot constitute a “place of public accommodation.”
Martinez argues that we must nevertheless interpret the
terms “facility” and “place of public accommodation” broadly
enough to include all retail websites, because to do otherwise
would lead to an absurd result. Specifically, he argues it would
be absurd for Title III to treat a sales transaction differently,
depending on the venue through which it occurs. The First Circuit
Court of Appeals found this principle persuasive in holding a
“place of public accommodation” does not require any kind of a
physical presence. It concluded that “[i]t would be irrational to
conclude that persons who enter an office to purchase services are
protected by the ADA, but persons who purchase the same services
over the telephone or by mail are not. Congress could not have
intended such an absurd result.” (See Carparts, supra, 37 F.3d
at p. 19.)
We disagree. Although treating retail websites like other
retailers in 2022 does make sense, it does not follow that treating
them differently from brick and mortar retailers cannot also make
sense. We do not view it as absurd or irrational for Congress to
address discrimination by online retailers in a different manner

24
than it addresses discrimination by brick and mortar retailers.
These are, after all, two distinct types of retailers, each subject
to a disparate bundle of economic and business concerns. The
central role websites play in modern commerce cannot change
that they are their own animal, a creature unlike brick and
mortar establishments.
Because brick and mortar stores conduct business differently
than do retail websites, the type and extent of the burdens anti-
discrimination measures impose on a business will necessarily
differ depending on whether the business is operating through
a physical storefront or a purely digital one. Given the different
burden-benefit calculus that would apply in determining how to
impose accessibility requirements on these two different types of
retailers, it would not be an absurd result that Title III addresses
only physical retailers, and that the question of how to properly
balance the benefits and burdens of imposing similar requirements
on purely digital retailers remains for Congress to separately
consider. We thus conclude that it would not be an absurd result
to interpret Title III as treating transactions differently depending
on whether they are purely digital or have a physical component,
and that avoiding an absurd result therefore cannot drive our
interpretation of the language at issue.
Martinez further argues that we must interpret the terms
“place of public accommodation,” “other personal property,” and
“facility” broadly enough to include digital-only websites, because
doing otherwise would be inconsistent with the purpose of Title III,
and inconsistent with the edict that we are to interpret the ADA
broadly and with its purpose in mind. The purpose of Title III
is “ ‘to bring individuals with disabilities into the economic and
social mainstream of American life . . . in a clear, balanced, and
reasonable manner’ ” and afford “people with disabilities . . .

25
equal access to the array of goods and services offered by private
establishments and made available to those who do not have
disabilities.” (Gniewkowski v. Lettuce Entertain You Enterprises,
Inc. (W.D.Pa. 2017) 251 F.Supp.3d 908, 916; accord, PGA Tour,
Inc. v. Martin (2001) 532 U.S. 661, 674−675.) Today, the “economic
and social mainstream of American life” takes place in large part
on the internet; websites are one of the primary ways the public
may gain “access to the array of goods and services offered by
private establishments.” (Gniewkowski, supra, at p. 916; see
Packingham v. North Carolina (2017) 582 U.S. __ [198 L.Ed.2d
273, 137 S.Ct. 1730, 1735] [referring to “cyberspace” as the most
important “place[ ]” for the exchange of views]; see also Thurston,
supra, 39 Cal.App.5th at p. 643 [noting the internet’s “ ‘prevalence
and power have changed the dynamics of the national economy’ ”],
quoting South Dakota v. Wayfair (2018) 585 U.S. __ [201 L.Ed.2d
403, 138 S.Ct. 2080, 2097].) Martinez also stresses that legislative
history supports “that Congress intended the ADA to adapt to
changes in technology.” (Netflix, supra, 869 F.Supp.2d at
pp. 200−201, citing H.R.Rep. No. 101-485, 2d Sess., p. 108
(1990), reprinted in 1990 U.S. Code Cong. & Admin. News,
pp. 303, 391.) Specifically, the Legislature “intend[ed] that the
types of accommodation and services provided to individuals
with disabilities, under all of the titles of this bill, should keep
pace with the rapidly changing technology of the times”—in this
instance, with technology that permits a company to offer wide
ranges of goods or services for sale without having any physical
storefront. (H.R.Rep. No. 101-485, 2d Sess., p. 108 (1990),
reprinted in 1990 U.S. Code Cong. & Admin. News, pp. 303, 391.)
We agree with Martinez that reaching his desired result—
lessening barriers to accessing electronic commerce faced by
disabled individuals—would be consistent with the general, overall

26
goal of Title III. But not everything that is consistent with
the goal of Title III can be found in the language of that statute.
And simply because one interpretation would be consistent with
the overall goal of the statute does not necessarily mean that a
different interpretation “would inevitably frustrate the manifest
purposes of the legislation as a whole” (In re Ge M., supra, 226
Cal.App.3d at p. 1523)—particularly when, as here, the law
inherently involves a balancing of benefits and burdens to different
stakeholders.
Nor is the mandate to interpret that language broadly,
and in a manner that takes into account changes in technology,
a blanket authorization to require anything that would achieve
the ADA’s overall goal of equal access. Congress chose specific
language. Given the lack of support for interpreting “place” or
“place of public accommodation” as including digital websites
under the plain meaning of these terms and the canons of
statutory construction, we are loathe to rely entirely on the broad
goals of the statute as a sufficient basis for doing so. Based on
the language Congress (and the DOJ in implementing regulations)
chose, even considered in the context of Title III policy goals
and a need to interpret the law expansively, it is not clear that
Congress intended this result in drafting Title III.
Thus, even after examining the language of the statute and
considering maxims of statutory interpretation and legislative
history pre-dating passage of the law, we remain without a clear
answer as to whether a purely digital retail website can constitute
a “place of public accommodation” in the context of Title III.

27
 C. Based on Legislative History Since Congress
Passed Title III, This Court May Not Interpret
Title III As Covering Digital-Only Websites
“ ‘If ambiguity remains after resort to secondary rules
of construction and to the statute’s legislative history, then we
must cautiously take the third and final step in the interpretive
process. [Citation.] In this phase of the process, we apply
“reason, practicality, and common sense to the language at hand.”
[Citation.] Where an uncertainty exists, we must consider the
consequences that will flow from a particular interpretation.’ ”
(Alejo, supra, 212 Cal.App.4th at p. 788.) Based on such an
analysis, we ultimately find dispositive that adopting Martinez’s
proposed interpretation of “place of public accommodation” would
mean embracing a view that Congress (through its inaction since
the enactment of the ADA) and the DOJ (through its unwillingness
to draft regulations) have both tacitly rejected.
Congress and the DOJ have long been aware of the confusion
in the courts regarding whether and when a website can be
considered a “place of public accommodation,” but have chosen
not to clarify the issue through amendments to the statute or
additional rulemaking. The federal circuit split began in the
1990’s, and resolving it—be it through judicial or legislative
means—has been the topic of legal scholarship ever since then.
In addition, as early as 2000, Congress began holding
hearings to discuss the significance, for purposes of interpreting
the ADA, of the fact that commerce was increasingly occurring
online. At a February 9, 2000 oversight hearing before the
Subcommittee on the Constitution of the Committee on the
Judiciary on the “Applicability of the Americans with Disabilities
Act (ADA) to Private Internet Sites,” the committee noted that
the “[f]ederal government is scheduled to promulgate handicapped

28
accessibility requirements that will apply to [f]ederal department
and agency Internet sites” which would “likely be used as a model
for Internet accessibility requirements by litigants suing private
providers of Internet web sites and services under the [ADA].”
(H.R.Rep. No. 106-1048, 2d Sess., p. 275 (2001).) It further
heard from the DOJ, which was of the opinion “that the ADA’s
accessibility requirements do apply to private Internet web sites
and services.” (Ibid.) The committee recognized that the changing
role of internet commerce “raise[d] issues related to the new
significance of the Internet economy to recent economic growth,
the costs that application of the ADA would impose on that rapidly
expanding segment of the economy, and the substantial First
Amendment implications of applying the ADA to private Internet
web sites and services.” (Ibid.) These same issues were again
discussed at a September 13, 2006 hearing before the same
committee. (See, e.g., Hearing before House Com. on Judiciary,
Subcom. on Constitution, 109th Cong., 2d Sess., at pp. 924−925
(Sept. 13, 2006) [testimony that 98 percent of websites are
inaccessible to disabled individuals and that access to the internet
is crucial in modern society]; id., p. 105 [statement advocating for
interpreting Title III to cover websites]; id., p. 97 [testimony
suggesting congress intended ADA to expand to account for
changes in technology like those related to internet commerce].)
Nevertheless, when Congress amended the ADA in 2008,
it did so to clarify a different area of judicial confusion interpreting
the scope of the act related to the definition of “disability.” (See
Pub.L. No. 110-325 (Sept. 25, 2008) 122 Stat. 3553; Hearing before
House Com. on Judiciary, Subcom. on Constitution, Civil Rights
and Civil Liberties, 111th Cong., 2d Sess., at p. 2 (Apr. 22, 2010).)
It took no similar legislative action to clarify “place of public
accommodation.” Thereafter, in 2010, a congressional committee

29
expressly acknowledged the need for clarification in this area in
order to realize the goals of the ADA, and called upon the DOJ
to act. Specifically, at an April 22, 2010 congressional committee
hearing on “Achieving the Promises of the Americans with
Disabilities Act in the Digital Age,” the introductory remarks of the
congressional committee chairman noted that “[t]hrough informal
guidance, the [DOJ] consistently has taken the position that public
and private entities must ensure that individuals with disabilities
have equal access when the goods or services are provided over
the Internet or through other evolving technologies. But the [DOJ]
has yet to modernize its regulations to make that clear, and the
courts have struggled to articulate a consistent approach. [¶] This
lack of clarity is harmful and places individuals with disabilities at
great risk of being left behind. It also leaves public and private
entities uncertain as to whether they are subject to and, for that
matter, in compliance with ADA requirements. I therefore urge
the [DOJ] to update its regulations and hope to hear today about
its plans to issue guidance that clarifies application of the law and
provides meaningful resources for entities seeking to comply. [¶]
With this additional clarity and guidance, I am hopeful that we
will avoid a repeat of the problems that we encountered with the
court’s misinterpretation of the definition of the word ‘disability’ in
the ADA. In correcting the courts unduly restrictive interpretation
of this term, we made clear that we will not tolerate a narrow
reading of the ADA. [¶] That same message should apply with
full force as the courts interpret and apply key phrases like ‘place
of public accommodation’ in Title III of the Act. The notion that
Congress prohibited discrimination only when it occurs in a
physical place or required structural changes only to physical
places is not consistent with the spirit and the plain language
of the law.” (Hearing before House Com. on Judiciary, Subcom.

30
on Constitution, Civil Rights and Civil Liberties, 111th Cong.,
2d Sess., at p. 2 (Apr. 22, 2010).)
In response, the DOJ representative at the hearing indicated
in no uncertain terms that the DOJ viewed websites, whether
or not associated with a physical place, as places of public
accommodation under Title III. (See, e.g., Hearing before House
Com. on Judiciary, Subcom. on Constitution, Civil Rights and Civil
Liberties, 111th Cong., 2d Sess., at pp. 6 & 16 (Apr. 22, 2010).)
The DOJ has offered the same view in amicus briefs filed in
various federal courts for over 20 years. 7 Yet the DOJ has chosen
not to exercise its rulemaking power and issue any regulations on
this topic. Instead, it continues to file amicus briefs, and earlier
this year issued guidance that—unlike those amicus brief
submissions—is ambiguous as to whether a brick and mortar
presence is necessary for a website to constitute a “place of public
accommodation.” Namely, the 2022 guidance provides: “A website
with inaccessible features can limit the ability of people with
disabilities to access a public accommodation’s goods, services, and
privileges available through that website—for example, a veterans’
service organization event registration form. [¶] For these
reasons, the [DOJ] has consistently taken the position that the

7 Martinez has requested that this court take judicial notice
of these and other DOJ-related documents, including DOJ consent
decrees taking a similar position. CW has filed a request for
judicial notice of other DOJ-related materials as well. We hereby
grant these requests. (See Evid. Code, §§ 459, subd. (a), 452,
subds. (c) & (d) [permitting judicial notice of “[o]fficial acts of
the . . . executive . . . departments of the United States” and
“[r]ecords of . . . any court of record of the United States”]; People v.
Morales (2018) 25 Cal.App.5th 502, 511, fn. 7 [“courts may take
judicial notice of information published on official government
websites”].)

31
ADA’s requirements apply to all the goods, services, privileges, or
activities offered by public accommodations, including those offered
on the web.” (U.S. Dept. of Justice, Guidance on Web Accessibility,
and the ADA (Mar. 18, 2022) [as of July 29, 2022], boldface omitted.)
It thus appears that, no later than 2010, Congress and the
DOJ (1) both recognized the need to clarify whether and under
what circumstances a website might constitute a “place of public
accommodation,” and (2) agreed that such clarification should take
a broad and inclusive approach. The only conclusion we can draw
from their failure in the 12 years that followed to provide any such
clarification through regulation or statute is that neither officially
endorses this approach. We cannot attribute this inaction to
Congress’s difficulty with or reluctance to draft laws specifically
addressing websites, given that the ADA expressly addresses
accessibility of some websites for disabled individuals—it just
does not do so in the context of Title III. Specifically, federal
departments and agencies must provide individuals with
disabilities the same level of access to electronic and information
technology—including through websites—as that enjoyed by
individuals without disabilities. (29 U.S.C. § 794d(a)(1)(A).)
Congress’s failure to provide clarification in the face of
known confusion—and, to a lesser extent, the DOJ’s similar
failure—is not a reason for us to step in and provide that
clarification. To the contrary, it is a reason for us not to do so.
This is particularly true, given that providing clarification in
the manner Martinez requests could have sweeping effects far
beyond this case, none of which has been the subject of legislative
fact-finding.
Martinez urges that the DOJ has in fact acted to clarify the
confusion through amicus briefs and consent decrees in various

32
cases, which take the position that a website not associated with
any physical location can constitute a public accommodation. The
parties have extensively briefed the issue of whether and in what
way we should consider these documents. “[I]t is unsettled how
much Chevron deference 8 is to be given to an agency’s informal
policy pronouncements. This category includes . . . [, for example,]
the amicus curiae brief[s]; and though we know . . . [citation] that,
in some circumstances at least, an agency’s amicus brief is entitled
to some deference, it cannot be very great when it is the brief of
an agency that has, and has exercised, rulemaking powers yet
has unaccountably failed to address a fundamental issue on
which the brief takes a radical stance.” (Mutual of Omaha, supra,
179 F.3d at p. 563, fn. added.) This is the case with the DOJ and
the primary issue on appeal. Considered in this context, such
nonbinding and case-specific pronouncements of the DOJ do not
provide a basis for us to do what Congress (and, for that matter,
the DOJ itself) has apparently made a conscious choice not to do.
And unlike an amicus brief, our interpretation of the ADA will
affect cases other than the one before us.
In sum, we do not view the DOJ’s willingness to support
Martinez’s proposed interpretation only in case-specific scenarios—
while declining to adopt the position via rulemaking action—
as weighing in favor of our adopting that interpretation. To the
contrary, we conclude the DOJ’s approach to the issue weighs
against our adopting such an interpretation. As noted, we agree it
would serve the goals of the Title III to interpret “facility” and, by

8 Under Chevron U.S.A., Inc. v. Natural Res. Def. Council
(1984) 467 U.S. 837, the United States Supreme Court held that,
in interpretating a statute, a regulatory agency’s construction of
the statute is entitled to deference from the courts. (Id. at p. 865;
City of Arlington v. F.C.C. (2013) 569 U.S. 290, 296.)

33
extension, “place of public accommodation” 9 as covering websites,
but that does not necessarily mean no other goals or considerations
weigh against a blanket application of Title III to all websites.
Ours is not to draft a law that chooses from among these various
goals; ours is to interpret the law as written, an enterprise in
which we are guided by legislative intent. We ultimately conclude
that the language of the statute, when considered in the context
of Congress’s failure to act and the DOJ’s silence in terms of formal
guidance, does not permit us to adopt an interpretation of the
statute that is not dictated by its language, especially in the face
of the legislative and agency inaction described above.

D. Because CW’s Website Does Not Constitute a
“Place of Public Accommodation,” the FAC
Does Not Allege a Title III Violation
Based on all of the factors we discuss above, we conclude
that CW’s website is not a “place of public accommodation” under
Title III as currently written. Thus, the FAC also cannot state
a claim under the Unruh Act based on CW’s denying Martinez
access to CW’s website in a manner that violates Title III.
Given that the FAC also fails to allege intentional
discrimination, it fails to state a viable legal claim under the
Unruh Act, and the court correctly sustained CW’s demurrer.

9 As noted, in order to constitute a “place of public
accommodation,” the entity at issue must be both a “facility” and
a public accommodation. (28 C.F.R. § 36.104 (2022).) Therefore,
given our conclusion that a standalone website cannot constitute
a facility, we need not reach the issue of whether, or under what
circumstances, such websites also constitute “sales and retail
establishments” or any other of the enumerated categories of
“[p]ublic accommodation[s]” under section 12181(7)(E) of title 42
of the United States Code.

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 As to the dismissal with prejudice, Martinez argues that he
should be permitted leave to amend only if this court determines
that he “potentially could have” “sufficiently plead his intentional
discrimination theory of liability” “based on evidence provided to
the trial court indicating that the website continued to remain
inaccessible to blind individuals even after the filing of the FAC.”
(Capitalization omitted.) We do not so conclude. For the reasons
we outline above, allegations that CW failed to ameliorate
discriminatory effects of its facially neutral website—even for a
longer period of time than alleged in the FAC—cannot establish
intentional discrimination. Therefore, the court did not err in
sustaining the demurrer without leave to amend.

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 DISPOSITION
Accordingly, the judgment dismissing the complaint is
affirmed. The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

BENDIX, J.

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