Filed 6/19/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ABELARDO MARTINEZ,

Plaintiff and Appellant,

v.

SAN DIEGO COUNTY CREDIT UNION,

Defendant and Respondent.

D075360

(Consolidated with D076055)

(Super. Ct. No. 37-2017-00024673-

CU-CR-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. 

Frazier, Judge. Reversed.

Pacific Trial Attorneys, Scott J. Ferrell and Richard Hikida for Plaintiff and 

Appellant.

Sheppard, Mullin, Richter & Hampton, Gregory F. Hurley and Bradley J. 

Leimkuhler for Defendant and Respondent.

Abelardo Martinez, who is blind, brought an action against San Diego County 

Credit Union (Credit Union) claiming its website is incompatible with software 

permitting him to read website content. He alleged this defect denied him equal access 

to, and full enjoyment of, the Credit Union's website and its physical locations. Martinez 

asserted a single cause of action under the Unruh Civil Rights Act based on two alternate 
2

theories: (1) Credit Union's website violates the American Disabilities Act (ADA); and 

(2) Credit Union's actions constitute intentional discrimination prohibited by the Unruh 

Civil Rights Act. (See Civ. Code, § 51 et seq.; 42 U.S.C., § 12101 et seq.)1

On the day scheduled for jury selection, the court dismissed the action on its own 

motion based on its understanding Martinez was intending to pursue only the ADA 

theory, and the court's finding Martinez had not sufficiently alleged Credit Union's

website constitutes a "public accommodation" within the meaning of the ADA. 

(§ 12182(a).) Although the court characterized its ruling as a nonsuit, the parties agree it 

was a conclusion based solely on Martinez's pleadings.

Martinez appeals. We determine the court erred in dismissing the action at the 

pleadings stage based on the ADA's public-accommodation element. Although the courts 

have not yet articulated a single clear standard on this issue, most of the federal circuits 

and one California Court of Appeal have held a disabled plaintiff can state a viable ADA 

claim for alleged unequal access to a private entity's website if there is a sufficient nexus 

between the claimed barriers and the plaintiff's ability to use or enjoy the goods and 

services offered at the defendant's physical facilities. Under this standard, we conclude 

Martinez has alleged a sufficient nexus to state an ADA violation. We thus do not reach 

the broader issue whether a website constitutes a public accommodation governed by the 

ADA even without a nexus to the defendant's physical location. 

 

1 Unspecified statutory references are to Title 42 of the United States Code.
3

We reject Credit Union's alternate argument that the dismissal was proper because

the United States Congress has not enacted specific website accessibility standards. Even 

without these standards, the courts have the authority to interpret applicable ADA 

provisions and apply them to website accessibility issues. We also find unavailing Credit 

Union's challenges to potential remedies for alleged defects on its website. These 

challenges are based on facts outside the appellate record and are premature at the 

pleading stage.

FACTUAL AND PROCEDURAL BACKGROUND2

Complaint

Martinez is permanently blind and requires screen reading software to vocalize 

visual information on the computer screen, allowing him to "read" website content and 

access the Internet. 

In July 2017, Martinez filed a complaint against Credit Union. According to his 

allegations, Credit Union maintains its website in such a way that it contains "numerous 

access barriers" precluding him from using his screen reading software to access the 

information on the website. Specifically, Martinez alleged Credit Union's website is 

incompatible with this software because the website contains: (1) missing alternative 

text, which is code embedded beneath a graphical image that allows screen readers to 

vocalize a description of the graphics and permits users to determine the website content;

 

2 Credit Union devotes significant portions of its appellate brief to negatively 

characterize ADA lawsuits in general. These assertions are unhelpful and unsupported 

by the record, and we disregard them. 
4

(2) empty links, creating confusion for keyboard and screen reader users; (3) redundant 

links resulting in additional navigation and unnecessary repetition; and (4) missing form 

labels, which creates a problem because the function or purpose of the form control may 

not be presented to screen reader users.

Martinez alleged the screen reading software is "the only method by which a blind 

person may independently access the internet," and described the online industry 

standards organization's publication of the Web Content Accessibility Guidelines version 

2.0 (Accessibility Guidelines), which sets forth rules to ensure website accessibility for

visually impaired individuals. These rules include adding "invisible alternative text to 

graphics" to ensure "all functions can be performed using a keyboard" and "that image 

maps are accessible." He alleged that without these basic components, "a website will be 

inaccessible to a blind or visually impaired person using a screen reader."

With respect to Credit Union, Martinez alleged it operates multiple credit union 

locations, and that its website is "integrated" with the physical locations. He claimed 

Credit Union's website provides "access to the array of [Credit Union's] services, 

including a location locator, descriptions of its products and services, and many other 

benefits related to these facilities and services." He alleged that he has made multiple 

attempts to use and navigate the website, but because of the website's formatting, he has 

been unable to do so. He claimed this inability to use the website has deterred him from 

visiting Credit Union's physical locations, using the website, and obtaining the benefits of 

Credit Union's goods and services. Specifically, he alleged he is unable to "effectively 

browse for [Credit Union's] locations, products and services online," and claimed that if 
5

the website were accessible, he "could independently investigate services and products, 

and find the locations to visit via Defendant's website as sighted individuals can and do."

Martinez asserted a single cause of action for violation of the Unruh Civil Rights 

Act. (Civ. Code, § 51.) He alleged two theories for recovery. First, he alleged Credit 

Union's conduct in maintaining its website in a form inaccessible to visually impaired 

individuals, and failing to take corrective action after notice, constituted prohibited 

"intentional discrimination" under the Unruh Civil Rights Act. Second, he claimed

Credit Union's website violates the ADA, an independent basis for liability under the 

Unruh Civil Rights Act.

Martinez sought: (1) $4,000 per violation; (2) injunctive relief requiring Credit 

Union to take steps necessary to make its website accessible to visually impaired 

individuals (but limiting his request to the expenditure of no more than $50,000 to correct 

the deficiencies); and (3) attorney fees and costs not to exceed $74,999. 

Credit Union answered, denying the allegations, but did not challenge the 

pleadings or move for summary judgment. Trial was scheduled for Tuesday, November 

13, 2018. 

November 8, 2018 Hearing

Several days before the trial date, on Thursday, November 8, the court held a 

hearing on the parties' motions in limine, proposed jury instructions, and verdict forms. 

The court and counsel first discussed each of Martinez's eight motions and Credit Union's 

three motions. Of relevance here, during the discussion, Credit Union asked the court to 

exclude any reference to the Accessibility Guidelines, and after lengthy arguments, the 
6

court said it would reserve ruling on the issue, but commented it was "up to the jury to 

decide" if the Credit Union's website violated statutory standards, and therefore it may 

permit Martinez to present evidence of the Accessibility Guidelines "for limited purposes 

[and] with a limiting instruction." On Credit Union's motion to exclude any evidence of 

barriers that were not specifically alleged, the court also reserved ruling on the motion, 

but noted that Credit Union had not brought a demurrer, and to the extent the complaint 

was not sufficiently detailed to provide adequate notice, Credit Union had the full 

opportunity to conduct discovery. 

After reiterating November 13 as the trial start date and informing counsel of its 

department trial rules, the court and counsel discussed the proposed jury instructions and 

verdict forms. Toward the end of this discussion, counsel told the court there is a split 

among the federal circuits as to whether a website is subject to the ADA, and whether a 

nexus between the defendant's website and its physical facilities is required to trigger 

ADA protection. The court responded that the arguments on the issue of "accessing the 

physical" space and any required "nexus" had "piqued [its] interest," and that it was 

"interested in briefing on that." After counsel told the court that most of the case law has 

arisen in the federal courts, and no California appellate court has yet ruled on this issue, 

the court said, "Lucky me. So you . . . need to brief this. You both need to put together a 

trial brief for me. I've got a pretty good feel, but you [both] know this area inside and 

out . . . since there aren't any California appellate court cases. . . ." The court asked 

counsel to email their briefs by Monday morning (the day before jury selection was 
7

scheduled to begin), and said, "I'll go through the briefs Tuesday, and then we'll start 

picking the jury Tuesday afternoon." 

On Monday November 12, the parties emailed their trial briefs to the court. Credit 

Union's brief was 44 pages and addressed numerous legal issues in addition to the public 

accommodations issue raised by the court. Martinez's brief was 19 pages and more 

limited than Credit Union's brief. 

November 13 Hearing and Order

The next day, the parties met in chambers for an unrecorded discussion. After the 

discussion, the court held a hearing on the record. At the outset of the hearing, the court 

said:

"We have had [a] chambers discussion. I have reviewed both sides'

trial briefs, and I have given . . . this matter a tremendous amount of 

thought over the three-day weekend. And with the benefit of the 

trial briefs, I think the Court's position has clarified. 

"And I asked counsel back in chambers . . . if they would be opposed 

to not going through the procedure of picking a jury and doing 

opening statements given the fact that I have decided to grant the 

defendant's motion for nonsuit as I read their brief in terms of the 

website not being subject to the ADA." (Italics added.) 

When the court asked Martinez's counsel whether he agreed with its comments 

about the procedure, counsel responded: 

"[I]t is my understanding that the Court is sua sponte granting a 

nonsuit on the basis that the Court has determined, as a matter of 

law, that neither the Unruh Act nor the Americans with Disabilities 

Act applies to a website as alleged here, which is a website that is in 

a nexus to a physical building. [¶] With that being the case, I agree 

that it would be futile to proceed in that the Court has determined 

that as a matter of law. We would simply ask that for purposes of 
8

creating a complete record for appeal, that the court receive and 

accept the trial briefs that were filed herein." (Italics added.)

After defense counsel agreed with this description, the court said it would prepare a brief 

order that would be "pretty much very similar to the defense brief on this point."

Several days later, the court issued an order entitled "Sua Sponte Order Granting 

Motion for Nonsuit." (Some capitalization omitted.) The order stated Credit Union's 

motion was essentially a challenge to the pleadings, and the court "agreed with the 

Defense position . . . [that] the complaint failed to state facts sufficient to constitute a 

cause of action." The court then identified the two alternative legal grounds for proving 

an Unruh Civil Rights Act violation based on disability discrimination (violation of the 

ADA and intentional discrimination), but addressed only the first ground because it said 

"Plaintiff has indicated that he intends to proceed solely by proving that Defendant 

violated the ADA." 

The court then stated its conclusion that Credit Union's website was not subject to

the ADA because the ADA applies only to "a place of public accommodation," and a 

website does not constitute a "public accommodation." The court said it was following 

the Third, Sixth, Ninth, and Eleventh Circuits holding that the phrase "public 

accommodation" means a physical structure, but did not mention the "nexus" theory 

adopted by these circuits. The court also quoted an unpublished federal district court 

decision from the Eastern District of Virginia, dismissing a visually impaired plaintiff's 

action against a credit union for website deficiencies based on the court's conclusion the 

ADA did not apply to the website. (Carroll v. Northwest Fed. Credit Union (E.D.Va., 
9

Jan. 26, 2018, No. 1:17-CV-01205) 2018 WL 2933407, at p. *2 (Northwest).) The court 

did not mention (because neither party cited) other federal court decisions reaching 

contrary conclusions and upholding a visually impaired plaintiff's action against a credit 

union for a defective website on a nexus theory. (See Discussion section, part II.B.) 

DISCUSSION

I. Review Standard

Although the court labeled its "sua sponte" dismissal ruling a "nonsuit," both 

parties agree that in substance the court's order reflected a determination on the 

sufficiency of Martinez's pleading. We agree with this characterization. The court made 

clear it was ruling on the ADA "public accommodations" issue based solely on the 

complaint's allegations, and was not considering any proposed evidence or factual 

assertions made during the in limine motions hearing or chambers discussion, or in the 

parties' trial briefs. 

When a court rules on a challenge to a pleading after a complaint and answer have 

been filed, the motion is in the nature of a judgment on the pleadings and can be made 

before or during trial. (See Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) A court 

may grant a judgment on the pleadings on its own motion. (Code Civ. Proc., § 438, 

subds. (b)(2), (c)(3)(B)(ii).) A motion for judgment on the pleadings " 'performs the 

same function as a general demurrer, and [thus] attacks only defects disclosed on the face 

of the pleadings or by matters that can be judicially noticed. [Citations.]' " (Burnett v. 

Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; see People ex rel. Harris v. Pac

Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777 (Harris).) The court must 
10

determine whether the complaint states a cause of action assuming all of the alleged facts 

are true. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 

Cal.App.4th 194, 198.) 

We review the court's ruling de novo. (Harris, supra, 59 Cal.4th at p. 777; 

Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490 (Rossberg).) We

do not review the validity of the trial court's reasoning, and must affirm the court's ruling 

if it was correct on any legal theory raised by the parties. (Orange Unified School Dist. v.

Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.)

II. Unruh Civil Rights Act

California's Unruh Civil Rights Act provides: "All persons within the jurisdiction 

of this state are free and equal, and no matter what their . . . disability . . . are entitled to 

the full and equal accommodations, advantages, facilities, privileges, or services in all 

business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) A

plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a 

violation of the ADA (§ 51, subd. (f)); or (2) denial of access to a business establishment 

based on intentional discrimination. (See Munson v. Del Taco, Inc. (2009) 46 Cal.4th 

661, 670.) 

We begin with the ADA violation claim. Because we conclude the court erred in 

dismissing the complaint on this theory, we do not reach the issue whether the alleged 

intentional discrimination theory also supports the cause of action and/or whether the 

court correctly found that Martinez had abandoned this theory for purposes of the 

"nonsuit" motion. We are required to reverse if the plaintiff has stated a viable cause of 
11

action on any legal theory, and we do so based on the ADA theory. On remand, Martinez 

may also pursue the alternate intentional discrimination claim if it is supported by the 

facts and applicable legal principles and the trial court finds there has been no forfeiture.

A. Generally Applicable Legal Principles

Title III of the ADA prohibits discrimination against disabled individuals by 

private entities, such as Credit Union. Title III 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." (§ 12182(a), italics added.) 

The purpose of this title is " 'to bring individuals with disabilities into the 

economic and social mainstream of American life . . . in a clear, balanced, and reasonable 

manner.' Congress intended that people with disabilities have 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 Enters. (W.D.Pa. 2017) 

251 F.Supp.3d 908, 916; accord PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 674-675

(PGA Tour).) 

To establish a violation, a plaintiff must show: (1) a covered disability; (2) "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, Brown v. Whole Foods Mkt. Grp., Inc. (D.C. Cir. 
12

2015) 789 F.3d 146, 151; Ariz. ex rel. Goddard v. Harkins Amusement Enters. (9th Cir.

2010) 603 F.3d 666, 670; see § 12182(a), (b).) 

It is undisputed that Martinez alleged a covered disability, and the Credit Union's 

physical buildings are "places of public accommodations" within the meaning of the 

ADA. (§ 12182(a).) But Martinez alleges he was discriminated against based on barriers 

on Credit Union's website, not at one of its buildings. Thus, the issue before us is 

whether the website qualifies as a place of public accommodation.

The ADA defines the phrase "place of public accommodation" by enumerating 12

categories of covered "places" and "establishments," giving non-exclusive examples of 

types of enterprises falling into each category.3 (§ 12181(7)(A)-(L); Suvino v. Time 

Warner Cable Inc. (S.D.N.Y., Aug. 31, 2017, No. 16 CV 7046-LTS-BCM) 2017 WL 

3834777, at p. *1; see PGA Tour, supra, 532 U.S. at pp. 676-677; National Ass'n of the 

 

3 These categories are: "(A) an inn, hotel, motel, or other place of lodging . . . . 

[¶ . . . ¶] (B) a restaurant, bar, or other establishment serving food or drink; [¶ . . . ¶] 

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or 

entertainment; [¶ . . . ¶] (D) an auditorium, convention center, lecture hall, or other place 

of public gathering; [¶ . . . ¶] (E) a bakery, grocery store, clothing store, hardware store, 

shopping center, or other sales or rental establishment; [¶ . . . ¶] (F) a laundromat, drycleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, 

gas station, office of an accountant or lawyer, pharmacy, insurance office, professional 

office of a health care provider, hospital, or other service establishment; [¶ . . . ¶] (G) a 

terminal, depot, or other station used for specified public transportation; [¶ . . . ¶] (H) a 

museum, library, gallery, or other place of public display or collection; [¶ . . . ¶] (I) a 

park, zoo, amusement park, or other place of recreation; [¶ . . . ¶] (J) a nursery, 

elementary, secondary, undergraduate, or postgraduate private school, or other place of 

education; [¶ . . . ¶] (K) a day care center, senior citizen center, homeless shelter, food 

bank, adoption agency, or other social service center establishment; and [¶ . . . ¶] (L) a 

gymnasium, health spa, bowling alley, golf course, or other place of exercise or 

recreation." (§ 12181(7)(A)-(L).)
13

Deaf v. Netflix, Inc. (D.Mass. 2012) 869 F.Supp.2d 196, 201 (Netflix).) 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." (28 C.F.R. § 36.104.)

A website is not identified in any of the statutory categories. This is not surprising 

as there were no commercial websites when the ADA was enacted in 1990. But in the 30 

years since, websites have become central to American life. They are widely used by 

both consumers and businesses to communicate information and conduct transactions, 

and are now essential tools in conducting daily affairs.4 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. (See Daniel Sorger, Writing the Access 

Code: Enforcing Commercial Web Accessibility Without Regulations Under Title III of 

the Americans with Disabilities Act (2018) 59 B.C. L.Rev. 1121; see also Alissa Carter 

Verson, A New Era of Accessibility: Website Compliance with the Americans with 

Disabilities Act (2019) 32 DCBA Brief 14; Abrar & Dingle, From Madness to Method: 

The Americans with Disabilities Act Meets the Internet (2009) 44 Harv. C.R.-C.L. L.Rev. 

133.)

 

4 During the current pandemic, the Internet and websites have become even more 

critical, but we consider the issues before us based on circumstances at the time they 

arose, in 2017.
14

The regulatory agency charged with implementing the ADA (the Department of 

Justice (DOJ)) has previously endorsed the applicability of Title III to " 'Web sites of 

public accommodations,' " but has not provided specific regulatory guidance. (Robles v. 

Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 903, 906-907, 910 (Robles); Reed v. 

1-800-Flowers.com, Inc. (E.D.N.Y. 2018) 327 F.Supp.3d 539, 549-550; Gorecki 

v. Hobby Lobby Stores, Inc. (C.D.Cal., June 15, 2017, No. CV 17-1131-JFW(SKX)) 2017 

WL 2957736, at pp.*4-*5.)5

And the courts have reached different conclusions on the issue whether a website 

is a public accommodation. The federal courts have expressed two main views. The 

different views stem primarily from the extent to which the court adheres to the express 

statutory language or whether it finds legislative history and intent to be paramount 

considerations. 

One view (the minority view) is that websites are "public accommodations" within 

the meaning of the ADA. This approach has been adopted by courts in the First, Second, 

and Seventh Circuits. (National Ass'n of the Deaf v. Harvard University (D.Mass. 2019) 

 

5 In 2010, the DOJ issued an "Advance Notice of Proposed Rulemaking" on web 

accessibility to clarify private entities' " 'obligations to make websites accessible' "

(Robles, supra, 913 F.3d at p. 903), and the DOJ has also filed statements of interest and 

amicus briefs in Title III cases supporting ADA website applicability (Gorecki, supra,

2017 WL 2957736, at p. *4; see Gil v. Winn Dixie Stores, Inc. (S.D.Fla. 2017) 242 

F.Supp.3d 1315, 1316-1317 (Gil)). But the DOJ has not issued specific regulations, and 

in 2017, withdrew its proposed website rule. (Robles, at p. 910.) In explaining the 

withdrawal, the DOJ stated it " 'continue[s] to assess whether specific technical standards 

are necessary and appropriate to assist covered entities with complying with the ADA.' " 

(Id. at p. 909.) 
15

377 F.Supp.3d 49, 57-59 (Harvard); Gil, supra, 242 F.Supp.3d at pp. 1318-1319; see 

Carparts Distrib. Ctr. v. Automotive Wholesaler's Ass'n (1st Cir. 1994) 37 F.3d 12, 19-20

(Carparts); Netflix, supra, 869 F.Supp.2d at pp. 201-203; Doe v. Mutual of Omaha Ins. 

Co. (7th Cir. 1999) 179 F.3d 557, 559; 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. (2nd Cir. 1999) 198 F.3d 28, 32; Andrews v. Blick Art Materials, LLC

(E.D.N.Y. 2017) 268 F.Supp.3d 381, 390-393 (Andrews); National Federation of the 

Blind v. Scribd Inc. (D.Vt. 2015) 97 F.Supp.3d 565, 567-576 (Scribd).)

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 (§ 12181(7)(F); see fn. 3, ante), 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, "[i]t would be irrational to conclude that persons who enter an 

office to purchase services are protected by the ADA, but persons who purchase the same 

services over the telephone or by mail are not. Congress could not have intended such an 

absurd result." (Carparts, at p. 19; see Andrews, supra, 268 F.Supp.3d at p. 396; Scribd,

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. (See Andrews, supra, 268 F.Supp.3d at p. 395 [ADA's " 'broad 
16

mandate' " and its " 'comprehensive character' are resilient enough to keep pace with the 

fact that the virtual reality of the Internet is almost as important now as physical reality 

alone was when the statute was signed into law."]; Scribd, supra, 97 F.Supp.3d at p. 575 

["excluding disabled persons from access to covered entities that use [websites] as their 

principal means of reaching the public would defeat the purpose of this important civil 

rights legislation"]; Netflix, supra, 869 F.Supp.2d at p. 200 ["In a society in which 

business is increasingly conducted online, excluding businesses that sell services through 

the Internet from the ADA would run afoul of the purposes of the ADA" in that it would 

prevent "individuals with disabilities" from "fully enjoy[ing] the goods, services, 

privileges and advantages available indiscriminately to other members of the general 

public."]; Del-Orden v. Bonobos, Inc. (S.D.N.Y., Dec. 20, 2017, No. 17 CIV. 2744

(PAE)) 2017 WL 6547902, at p. *9 ["Congress's purposes in adopting the ADA would be 

frustrated were the term 'public accommodation' given a narrow application, under which 

access to the vast world of Internet commerce would fall outside the statute's 

protection."]; see also H.R.Rep. No. 101-485(II), at p. 108 (1990), reprinted in 1990 

U.S.C.C.A.N. at pp. 303, 391 ["The Committee intends 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."].)

The second view (the majority view) is that websites are not "public 

accommodations" under the ADA, but a denial of equal access to a website can support 

an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal 

access to, or enjoyment of, the goods and services offered at the defendant's physical 
17

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, supra, 913 F.3d at pp. 905-

906;6 Menkowitz v. Pottstown Mem'l Med. Ctr. (3rd Cir. 1998) 154 F.3d 113, 122

(Menkowitz); Mahoney v. Bittrex, Inc. (E.D.Pa., Jan. 14, 2020, No. CV 19-3836) 2020 

WL 212010, at p. *2 (Mahoney); Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 

121 F.3d 1006, 1010-1014 (Parker); Castillo v. Jo-Ann Stores, LLC (N.D.Ohio 2018) 

286 F.Supp.3d 870, 876-881 (Castillo); Haynes v. Dunkin' Donuts, LLC (11th Cir. 2018) 

741 Fed. Appx. 752, 754 (Haynes); Gomez v. General Nutrition Corp. (S.D.Fla. 2018)

323 F.Supp.3d 1368, 1375 (General Nutrition); see also Rendon v. Valleycrest Prods., 

Ltd. (11th Cir. 2002) 294 F.3d 1279, 1284-1286.)

The courts adopting this narrower statutory definition of a "public 

accommodation" have relied on Congress's explicit listing of the type of places

considered to be "public accommodations," and have emphasized that essentially all of 

these categories describe a physical location. (§ 12181(7)(A)-(L); see Parker, supra, 121 

F.3d at pp. 1010-1014; Weyer, supra, 198 F.3d at p. 1114.) With respect to 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 

 

6 In recently applying this standard, the Ninth Circuit adhered to its earlier decision 

finding a public accommodation is a physical building (absent a "nexus") (see Weyer v. 

Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1115 (Weyer)), but left 

open the issue whether it would be receptive to adopting a broader view. (Robles, supra,

913 F.3d at pp. 905-906 & fn. 6.) 
18

supporting that a "travel service" also identifies a physical place. (Parker, at p. 1014; see 

Weyer, 198 F.3d at p. 1114; Ford v. Schering-Plough Corp. (3rd Cir. 1998) 145 F.3d 601,

613-614 (Ford); see also Magee v. Coca-Cola Refreshments USA, Inc. (5th Cir. 2016)

833 F.3d 530, 534-535; Harvard, supra, 377 F.Supp.3d at pp. 59-60.) 

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; Gil, supra, 242 F.Supp.3d at pp. 1320-1321; National Federation of the 

Blind v. Target Corp. (N.D.Cal. 2006) 452 F.Supp.2d 946, 951-956 (Target); Gomez v. 

Bang & Olufsen Am., Inc., (S.D.Fla., Feb. 2, 2017, No. 1:16-CV-23801) 2017 WL 

1957182, at p. *3.) The rationale underlying the adoption of this nexus standard mirrors 

many of the public policies discussed by the courts in adopting the broader view that all 

websites are directly subject to the ADA, e.g., that Congress would have intended this 

result given the growing importance of websites for consumers and businesses. (See 

Target, at p. 955 [contrary interpretation would "effectively read[ ] out of the ADA the 

broader provisions enacted by Congress"].) 

The first California appellate decision on the ADA website-coverage issue was 

filed while this appeal was pending. (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 

634 (Thurston).) In Thurston, a blind woman sued a restaurant for disability 

discrimination under the Unruh Civil Rights Act for maintaining a website that was 
19

incompatible with her screen reading software. (Id. at pp. 636-638.) The Thurston court 

upheld a summary judgment in the plaintiff's favor on her ADA violation claim based on 

the majority nexus theory, and thus found it unnecessary to reach whether it agreed with 

the more expansive view that all websites are "public accommodations" under the ADA.7

(Id. at pp. 642-646.) In adopting the nexus standard, the court noted that neither the 

United States Supreme Court nor California Supreme Court have ruled on the issue and 

in the absence of such controlling authority, a California Court of Appeal may " 'make an 

independent determination of federal law.' " (Id. at p. 640.)

B. Analysis

Martinez argues that this court should adopt the broader view that a website falls 

within the ADA's definition of a public accommodation as a matter of law and therefore 

his complaint satisfies the public accommodation element of his ADA claim. Martinez 

alternatively urges us to reverse the judgment based on a finding that he has sufficiently 

alleged facts to come within the nexus theory.

 

7 The Thurston court identified a third view—that even with a showing of a nexus, a 

plaintiff cannot recover for unequal access to a website—citing the Third Circuit's 

decision in Ford, supra, 145 F.3d 601. (See Thurston, supra, 39 Cal.App.5th at p. 640.) 

However, a close reading of the Ford decision and later authority clarifies that the Third 

Circuit follows the majority nexus view. (See Mahoney, supra, 2020 WL 212010, at 

p. *2 [" 'Third Circuit has held . . . the ADA applies to services and privileges of a place 

of public accommodation as long as there is "some nexus between the services or 

privileges denied and the physical place . . . as a public accommodation." ' "]; Walker v. 

Sam's Oyster House, LLC (E.D.Pa., Sept. 18, 2018, No. CV 18-193) 2018 WL 4466076, 

at p. *2; McGann v. Cinemark USA, Inc. (3rd Cir. 2017) 873 F.3d 218, 229; Menkowitz,

supra, 154 F.3d at pp. 120, 122; see also Target, supra, 452 F.Supp.2d at p. 954.)
20

Credit Union counters that we should determine a website is not a public 

accommodation as a matter of law and reject the nexus theory (arguing Thurston was 

wrongly decided), and thus determine Martinez cannot state a claim under any factual 

circumstances. Credit Union alternatively contends that if the nexus theory is applicable, 

Martinez's alleged facts do not bring his case within that theory.

We first find unmeritorious Credit Union's position that we should reject the nexus 

theory. Credit Union cites no relevant authority supporting this position. As discussed, 

virtually all of the courts adopting the majority view that a website is not a "public 

accommodation" under the ADA have also recognized ADA Title III liability can attach 

if the plaintiff shows a connection between the alleged disability discrimination on a 

website and the plaintiff's ability to access and/or enjoy the benefits of the entity's 

physical location. 

Northwest, supra, 2018 WL 2933407, relied upon by the trial court and Credit 

Union, does not support a contrary rule. In dismissing the visually impaired plaintiff's 

claim against a credit union for ADA website deficiencies, the Northwest court did not 

discuss or even mention the nexus standard, and instead relied on another district court 

decision holding that a chatroom was not a " 'place of public accommodation' " because it 

was not a physical space. (Id. at p. *2, citing Noah v. AOL Time Warner, Inc. (E.D. Va. 

2003) 261 F.Supp.2d 532.) However, because there was no claim in Noah that the chat 

room had any nexus to a physical facility, the Noah court did not reach the nexus issue. 

Accordingly, neither Northwest nor Noah provides useful guidance on the nexus issue. 
21

We agree instead with each of the courts specifically addressing the issue that the 

nexus test governs if the ADA is construed to define a public accommodation to include 

only a physical place. (See, e.g., Robles, supra, 913 F.3d at pp. 904-906; Thurston,

supra, 39 Cal.App.5th at pp. 642-644; Gil, supra, 242 F.Supp.3d at pp. 1320-1321.) As 

stated by the Thurston court, " ' "The statute applies to the services of a place of public 

accommodation, not services in a place of public accommodation. To limit the ADA to 

discrimination in the provision of services occurring on the premises of a public 

accommodation would contradict the plain language of the statute." ' " (Thurston, at 

p. 642, quoting Robles, at p. 905.) Moreover, a narrower construction would defeat the 

purposes of the ADA. "The ADA is a remedial statute and as such should be construed 

broadly to implement its fundamental purpose of eliminating discrimination against

individuals with disabilities." (Thurston, at pp. 642-643.) We would be undermining this 

purpose if we were to conclude that under no circumstances can discrimination on a 

website be actionable regardless of the connection between the discrimination and the 

place of public accommodation. 

The nexus rule is further consistent with the ADA provision requiring an entity to 

provide "auxiliary aids" necessary to ensuring equal access for disabled individuals. 

(§ 12182(b)(2)(A)(iii).) The implementing regulation requires that a "public 

accommodation . . . take those steps that may be necessary to ensure that no individual 

with a disability is excluded, denied services, segregated or otherwise treated differently 

than other individuals because of the absence of auxiliary aids and services, unless the 

public accommodation can demonstrate that taking those steps would fundamentally alter 
22

the nature of the goods, services, facilities, privileges, advantages, or accommodations 

being offered or would result in an undue burden, i.e., significant difficulty or expense."

(28 C.F.R. § 36.303(a), italics added.) The regulation further clarifies that a public 

accommodation must "furnish appropriate auxiliary aids and services where necessary 

to ensure effective communication with individuals with disabilities." (28 C.F.R. 

§ 36.303(c)(1), italics added.) Under this rule, "auxiliary aids and services" include 

"accessible electronic and information technology" and "other effective methods of 

making visually delivered materials available to individuals who are blind or have low 

vision." (28 C.F.R. § 36.303(b)(2).) The regulation identifies a "screen reader" as an 

"[e]xample[ ]" of an "auxiliary aid." (Ibid.) 

These federal mandates requiring that a "public accommodation" ensure that its 

services are communicated and made available to disabled persons including by technical 

means (absent undue burdens or changes to the fundamental nature of the business)

strongly support the application of the nexus theory if a public accommodation is defined 

as a physical place, i.e., that courts must consider the connection between a public 

accommodation and its website when evaluating whether the ADA applies to deficiencies 

on a website that make it more difficult for a disabled person to access the defendant's 

products and services.

Having found the nexus theory applicable if a public accommodation is defined as 

a physical place, we next turn to the issue whether Martinez alleged sufficient facts to 

trigger liability under the nexus theory. 
23

The courts have not been consistent in defining the scope of the nexus 

requirement. (See General Nutrition, supra, 323 F.Supp.3d at p. 1375 ["While courts 

agree a nexus is necessary, few have defined the nexus precisely."].) But most courts 

have interpreted the requirement broadly to conclude that a plaintiff has made the 

requisite showing if the facts show the website "connect[s] customers to the goods and 

services of [the defendant's] physical" place. (Robles, supra, 913 F.3d at pp. 905-906; 

Thurston, supra, 39 Cal.App.5th at pp. 644-646; see General Nutrition, at p. 1376; see 

also Castillo, supra, 286 F.Supp.3d at pp. 878-881.) We agree with this standard. 

Because the nexus test presupposes that Congress did not intend ADA to apply directly to 

a website, courts applying the nexus test consider whether the alleged website 

deficiencies impinge on the plaintiff's ability to have equal access to, and enjoyment of,

the products and services offered at the physical location. This standard requires a court 

to focus on the connection between the website and the goods and services offered by the 

defendant. 

Robles and Thurston both applied this standard to uphold a visually impaired 

plaintiff's ADA claim against a restaurant. The Robles court found the plaintiff alleged 

sufficient facts to show the requisite nexus in her action against Domino's Pizza based on 

allegations that Domino's website (and related "app") permitted the customer to find the 

location of the nearest restaurant and is the primary means of ordering pizzas "to be 

picked up at or delivered from Domino's restaurants." (Robles, supra, 913 F.3d at 

p. 905.) The Thurston court found the nexus test was satisfied by facts showing the 

restaurant's website provided consumers with the opportunity to review the menu and 
24

make a reservation, which the court found expedited the customer's ability to obtain the 

benefits of the restaurant's physical facility. (Thurston, supra, 39 Cal.App.5th at pp. 638, 

645-646.) Thurston explained these website features "speed[ ] up" the customer's 

"experience at the physical location" and thus facilitate the use and enjoyment of the 

services offered at the restaurant. (Id. at p. 645.) The court further stated the nexus test 

was met even though the website was not necessarily an "extension" of the restaurant's

physical services (id. at pp. 644-645) because, as in Robles, "the website connects 

customers to the services of the restaurant" (id. at p. 646, italics added). 

Closer to the circumstances here, three federal district courts found the nexus test 

was satisfied in an action by a visually impaired plaintiff against a credit union for a 

website containing defects similar to those alleged here. (See Carroll v. FedFinancial 

Federal Credit Union (E.D.Va. 2018) 324 F.Supp.3d 658 (FedFinancial); Jones v. Fort 

McPherson Credit Union (N.D.Ga. 2018) 347 F.Supp.3d 1351 (Fort McPherson); Jones 

v. Piedmont Plus Federal Credit Union (N.D.Ga. 2018) 335 F.Supp.3d 1278 (Piedmont 

Plus).)

In FedFinancial, the court found the nexus test satisfied based on the plaintiff's

allegations that the credit union's website "is a service of Defendant's physical, brick and 

mortar location," and " 'provides access to [the credit union's] array of services, 

privileges, advantages, and accommodations including, but not limited to, a branch 

locator for the [credit union's] facility, shared branch locations, and ATMs so that a 

potential customer may determine from the website the closest location for them to visit, 

descriptions of its types of banking services and accounts, online banking and bills pay 
25

services, loan information and documents, location service hours, special offers, an 

''About" page so that users may determine [the credit union's] services . . . and 

qualifications for membership.' Plaintiff . . . also alleged that the access barriers on 

Defendant's website . . . prevented him from . . . visiting Defendant's physical location." 

(FedFinancial, supra, 324 F.Supp.3d at pp. 666-667.)

In finding these allegations sufficient, the FedFinancial court rejected the credit 

union's argument that the nexus test was not met because the plaintiff did not allege he 

was " 'require[d] . . . to do business with [the credit union] only over its website' " or that 

the use of the website was "necessary . . . to facilitate the use of the [credit union's] brickand-mortar places." (FedFinancial, supra, 324 F.Supp.3d at p. 667.) The court reasoned 

that the credit union was "mischaracteriz[ing] the harm alleged by Plaintiff. Plaintiff has 

alleged that the accessibility barriers on Defendant's website prevent him from acquiring 

full information about Defendant's services. . . . And Defendant's argument ignores the 

fact that Plaintiff has been denied equal access to information that would enable him to 

visit Defendant's brick-and-mortar location." (Ibid.)

In Fort McPherson, the court likewise found the nexus test satisfied based on the 

plaintiff's allegations that the credit union's website "allows users to find the physical 

location of Defendant's facility, provides information about Defendant's services 

(including twelve online calculators), advantages, accommodations, and amenities, and 

enables visitors to the website to 'pre-shop' before visiting the physical location to 

purchase a mortgage." (Fort McPherson, supra, 347 F.Supp.3d at p. 1354.) Similarly, 

the Piedmont Plus court found the nexus test was satisfied based on the plaintiff's 
26

allegations that the website provides " 'information concerning [Defendant's] locations it 

operates [and] information and descriptions of its amenities and services, privileges, 

advantages, and accommodations,' and it 'allowed users to find the locations for them to 

visit.' " (Piedmont Plus, supra, 335 F.Supp.3d at p. 1282.) 

Other courts have similarly applied the nexus test to ADA website accessibility

claims asserted against other types of businesses. (See, e.g., Haynes, supra, 741 

Fed.Appx. at pp. 753-754 [nexus requirement met based on allegations store's website 

allowed customers to locate physical store locations, purchase gift cards online, and 

access information about goods and services and accommodations of the donut shops]; 

Gil, supra, 242 F.Supp.3d at pp. 1320-1321 [finding blind plaintiff satisfied nexus theory 

by alleging grocery/pharmacy chain's website allows customers to locate physical store 

locations and fill/refill prescriptions for in-store pickup or delivery]; General Nutrition,

supra, 323 F.Supp.3d at pp. 1375-1376 [nexus test met where website "operates as a 

gateway to physical stores," including that "website . . . provid[es] a store locater";

permit[s] customers to "purchase products remotely"; and provides "information about 

store" and "product promotions and deals"].)

Guided by these decisions and the policies underlying the nexus standard, we 

determine Martinez's allegations are sufficient to bring his case within this standard. 

Martinez alleged the manner in which the Credit Union's website was formatted 

precluded him from using his screen reading software to allow him to read the website's 

content. He alleged this defect precluded him from determining what is on the website, 

looking for the Credit Union locations, "check[ing] out" the services, and determining
27

which location to visit. He alleged that he could not "effectively browse for Defendant's 

locations, products and services online." He claimed that if the website were accessible, 

he could "independently investigate services and products, and find the locations to visit 

via Defendant's website as sighted individuals can and do."

These allegations are sufficient to show the requisite nexus between the website 

and Credit Union's physical locations. As in Robles, Thurston, FedFinancial, Fort 

McPherson, and Piedmont Plus, the allegations support that Credit Union's website 

connects customers to the goods and services offered at Credit Union's physical locations. 

Although the Domino's website in Robles was more heavily integrated with the physical 

locations than what is alleged here because it was a critical tool for ordering the product 

(a pizza), Martinez's allegations are similar to the allegations found sufficient to establish 

a nexus in Thurston, FedFinancial, Fort McPherson, and Piedmont Plus. In each of 

those cases, the website was not necessary to obtaining the goods and services offered by 

the defendant, but it facilitated the customer's experience by providing information and 

making it easier (faster, more efficient, and/or more effective) for the customer to locate 

the physical facility and to understand and access the products and services offered at the 

defendant's location. Similarly here, Martinez alleged the Credit Union's website permits 

the customer to research and prepare before going to the physical facility, including to 

make informed decisions about its products and services and thus to have full and equal 

access to the entity's offerings.

To the extent Martinez's pleading was not as detailed as in FedFinancial, Fort 

McPherson, and Piedmont Plus, Credit Union never brought a timely pleading challenge 
28

that would have permitted Martinez the opportunity to amend his complaint to provide 

more detail. The record supports that Credit Union had the full opportunity to conduct 

discovery to obtain more specific information on the allegations and relevant factual 

issues. Thus, any challenge now to the lack of specificity in the complaint is unavailing.8

Arguing the allegations do not satisfy the nexus standard, Credit Union relies on 

Price v. Everglades College, Inc. (M.D.Fla., July 16, 2018, 6:18-cv-492-Orl-31GJK) 

2018 WL 3428156 (Everglades), in which the federal district court found the plaintiff's 

allegations were insufficient to show the required nexus. There, the visually impaired 

plaintiff alleged the defendant's administrator told him he could find information about 

the college on the website, but when he went to the website, it was not compatible with 

screen reading software, thus allegedly preventing him from learning about the 

application process; researching available degree types, prerequisites, and course 

descriptions; viewing the course catalog; and obtaining information about living 

arrangements that could accommodate his disability. (Id. at p. *1.)

In finding these allegations inadequate to establish the required nexus, the court 

relied on two other unpublished Eleventh Circuit district court decisions that 

distinguished between "an inability to use a website to gain information about a physical 

location" from the "inability to use a website that impedes access to enjoy a physical 

 

8 We note "[w]hether a particular facility is a 'public accommodation' under the 

ADA is a question of law." (Jankey v. Twentieth Century Fox Film Corp. (C.D.Cal.

1998) 14 F.Supp.2d 1174, 1178.) On remand, the court's determination on this issue will 

depend on proof of Martinez's allegations.
29

location," and had found the former to be " 'insufficient to state a claim.' " (Everglades,

supra, 2018 WL 3428156, at p. *2.) The Everglades court stated "a contrary finding 

would require all websites with any nexus to a physical public accommodation to be 

formatted in such a way that they are accessible to screen reader software," and that, as 

with other courts, it was "unwilling to take a leap with such far-reaching implications." 

(Ibid.) The court further found the plaintiff alleged "only facts indicating that his ability 

to gain information about the location, rather than his access to enjoyment of the 

university itself, was compromised," noting "the Plaintiff does not claim that he was 

unable to apply to the university, pay tuition, or use the student portal on the website." 

(Ibid.) 

We are unconvinced by Everglades's reasoning. First, the plaintiff's allegations

did reflect his inability to obtain critical information necessary to decide whether to apply 

and/or enroll in the college, and thus, in our view, the allegations supported that the 

website deficiencies precluded his " 'access to enjoy the physical university.' "

(Everglades, supra, 2018 WL 3428156, at pp. *1-*2.) Second, the Everglades court 

based its holding on its conclusion that a plaintiff must allege the challenged website is a 

necessary tool for obtaining access to the college's facilities. This rule is contrary to the 

majority position and would improperly exclude ADA coverage for many vital services 

that aid in connecting individuals to a business's physical site. Third, we find 

unpersuasive the Everglades court's concern that broadly interpreting the nexus standard 

would mean "all websites with any nexus to a physical public accommodation" would be 

required to be accessible to screen reader software. (Id. at p. *2.) The fact that many
30

disabled plaintiffs challenging an inaccessible website would be successful in showing 

the required nexus derives from the fact that websites often provide important tools to 

connect customers to a physical place. That is a primary reason for many websites. 

Depriving a person with a covered disability from access to such an essential amenity is 

precisely the inequity the ADA was enacted to prevent.

Because we have concluded Martinez's allegations were sufficient to satisfy the 

nexus standard, we do not reach the legal issue whether the ADA applies to websites 

even without a nexus to a physical place. We must reverse a judgment on the pleadings if 

the plaintiff has stated a cause of action on any legal theory (Rossberg, supra, 219 

Cal.App.4th at p. 1490), and an appellate court generally will not address an issue

unnecessary to the resolution of the appeal (Young v. Three for One Oil Royalties (1934) 

1 Cal.2d 639, 647-648; Oxbow Carbon & Minerals, LLC v. Dept. of Industrial

Relations (2011) 194 Cal.App.4th 538, 552, fn. 11; see Robles, supra, 913 F.3d at p. 905,

fn. 6 [declining to decide broader issue where requisite nexus found]; Thurston, supra, 39 

Cal.App.5th at p. 644 [same]). 

C. Other Asserted Grounds for Affirming the Dismissal of the Complaint

Credit Union contends that if we find Martinez sufficiently alleged that the ADA 

applies to its website, we should affirm the dismissal on the ground that courts have no 

jurisdiction to require a private entity to alter its website to comply with the ADA

because the United States Congress has the exclusive role to establish website standards, 

and Congress has not established such standards. Credit Union maintains that "if 

Congress intended to regulate the [I]nternet" to require visually impaired individuals to 
31

be able to "read" websites, "it should have spoken clearly on the subject," and that "[i]t is 

inappropriate for the Court—almost 27 years after the passage of the ADA—to announce 

sudden, new regulation of an industry (online commerce) that has existed for years." 

The argument is factually and legally unsupported. 

First, Martinez is not asking the trial court to impose a "sudden" or "new"

regulation on the "online commerce" industry. The statutory and regulatory rules have 

long mandated that a "public accommodation" ensure that its online services are made 

available to disabled persons (absent undue burdens or changes to the fundamental nature 

of the business). (See Robles, supra, 913 F.3d at p. 907 ["at least since 1996 Domino's 

has been on notice that its online offerings must effectively communicate with its 

disabled customers and facilitate 'full and equal enjoyment' of Domino's goods and 

services"]; see also Target, supra, 452 F.Supp.2d at p. 956 [court holding in 2006 that 

national retailer's website may violate Title III if its inaccessibility "impedes the full and 

equal enjoyment of goods and services offered" at its stores].) Consistent with this 

conclusion, the existing DOJ regulations state a public accommodation must provide 

"auxiliary aids and services" to ensure "effective communication" with disabled persons

(28 C.F.R. § 36.303(a), (c)(1)), and that these requirements may include "screen reader 

software . . . or other effective methods of making visually delivered materials available

to individuals who are blind or have low vision" (28 C.F.R. § 36.303(b)(2)). These

regulations also require this assistance to "be provided in accessible formats, in a timely 

manner, and in such a way as to protect the privacy and independence of the individual

with a disability." (28 C.F.R. § 36.303(c)(1)(ii), italics added.) 
32

Additionally, Martinez is not seeking to "regulate" the entire "online commerce"

industry. Rather, he seeks an injunction requiring Credit Union to "take the steps 

necessary" to make its own website "accessible to and usable by visually-impaired 

individuals," and limits any requested remedial measures to $50,000. 

Further, we find unavailing Credit Union's legal contention that the alleged defects 

in its website can be remedied only by Congress's enactment of a specific website 

accessibility standard. The argument is inconsistent with the fundamental principle that a 

legislature has the authority to enact general laws and delegate enforcement issues to a 

regulatory body and/or to leave it to the judicial branch to interpret the law and determine

whether the party has complied in the particular case. (See Marbury v. Madison (1803) 5 

U.S. 137, 177 [discussing role of the judiciary under separation of powers, and 

concluding "[i]t is emphatically the province and duty of the judicial department to say 

what the law is"].) This is particularly true with respect to the ADA, which often requires 

a flexible approach to enforcement. (Robles, supra, 913 F.3d at p. 908.) " '[T]he ADA 

and its implementing regulations are intended to give public accommodations maximum 

flexibility in meeting the statute's requirements. This flexibility is a feature, not a bug,' "

of the statutory scheme. (Ibid.; see Andrews, supra, 268 F.Supp.3d at p. 403 [ADA's 

antidiscrimination standards "are meant to be applied contextually and flexibly"].) 

Credit Union relies on Marsh v. Edwards Theater Circuit, Inc. (1976) 

64 Cal.App.3d 881 for a rule that only a legislature can determine appropriate 

accessibility standards. Marsh is inapposite. Marsh involved architectural barriers 

(theatre seating) that existed long before the laws requiring enhanced protections for 
33

disabled individuals, and the court interpreted statutes applicable before the enactment of 

the ADA and before the current version of the Unruh Civil Rights Act. (Id. at pp. 886-

892; see Flowers v. Prasad (2015) 238 Cal.App.4th 930, 941, fn. 8.)

Credit Union also relies on a line of United States Supreme Court decisions in 

which the court found certain administrative rules (arising in other contexts such as 

greenhouse gas, tobacco, telephone regulations) to be beyond the agency's delegated 

powers. (See, e.g., MCI Telecommunications Corp. v. American Tel. & Tel. Co. (1994) 

512 U.S. 218, 231; FDA v. Brown & Williamson Tobacco Corp. (2000) 529 U.S. 120, 

146; Gonzales v. Oregon (2006) 546 U.S. 243, 267; Util. Air Regulatory Group v. EPA 

(2014) 573 U.S. 302.) This issue is not before us because it is undisputed the DOJ has 

the delegated authority to promulgate regulations on website accessibility. (§ 12186(b); 

see Robles, supra, 913 F.3d at p. 903, fn. 2.) And the fact that the DOJ has not yet issued 

specific regulations does not bar the courts from addressing these issues. (Robles, at 

pp. 909-911; Thurston, supra, 39 Cal.App.5th at p. 654.) 

In this regard, Robles and Thurston recently rejected arguments that a court should 

abstain from ruling on an ADA website claim because the DOJ has not identified specific 

standards for website accessibility compliance. (Robles, supra, 913 F.3d at pp. 909-911; 

Thurston, supra, 39 Cal.App.5th at p. 654.) The Robles court stated: "Our Constitution 

does not require that Congress or DOJ spell out exactly how [a private entity] should 

fulfill its obligation" that its website provide "effective communication and facilitate 'full 

and equal enjoyment' of [its] goods and services to its [disabled] customers . . . ."

(Robles, at p. 909.) The court further observed: "[T]he application of the ADA to the 
34

facts of this case are well within the court's competence. Properly framed, the issues for 

the district court to resolve on remand are whether [the defendant's] website and app 

provide the blind with auxiliary aids and services for effective communication and full 

and equal enjoyment of its products and services. Courts are perfectly capable of 

interpreting the meaning of 'equal' and 'effective' and have done so in a variety of 

contexts. In addition, if the court requires specialized or technical knowledge to 

understand [the plaintiff's] assertions, the parties can submit expert testimony. 

[Citations.] Whether [the defendant]'s website and app are effective means of 

communication is a fact-based inquiry within a court's competency." (Id. at pp. 910-911.)

We concur with this reasoning. (See Thurston, supra, 39 Cal.App.5th at pp. 654-

655 [agreeing with "the Ninth Circuit's recent rejection of the [abstention] doctrine to a 

lawsuit involving a website and app alleged to be inaccessible under the ADA" and 

finding the trial court's consideration of issues involving the scope of an injunction "well 

within the court's competence to administer"].) 

Finally, we comment briefly on Credit Union's lengthy discussion in its appellate 

briefs about its subjective concerns with the Accessibility Guidelines (the online 

industry's current accessibility standards, sometimes called WCAG 2.0). 

First, the discussion is based on facts that are not properly before us. In reviewing 

a judgment on the pleadings, we are limited to examining the factual allegations and any 

matter for which judicial notice may be taken. (Cloud v. Northrop Grumman

Corp. (1998) 67 Cal.App.4th 995, 999.) In challenging the Accessibility Guidelines, 

Credit Union relies on facts and sources of information that are not contained in the 
35

pleadings and are outside the appellate record, and for which it never sought judicial 

notice. 

Second, the assertions are not ripe as they concern the remedies issues that the 

court has not yet addressed. (See Robles, supra, 913 F.3d at p. 908; Reed v. CVS 

Pharmacy, Inc. (C.D.Cal., Oct. 3, 2017, No. CV 17-3877-MWF (SKx)) 2017 WL 

4457508, at p. *4.) In his complaint, Martinez alleged the manner in which Credit Union 

formats its website prevents "free and full use by blind persons using screen reading 

software"; compliance with online industry standards would make Credit Union's website 

accessible to blind and visually impaired persons; these "guidelines are successfully 

followed by numerous large business entities to ensure their websites are accessible"; and 

that without the "basic components" identified in the guidelines, a website will be 

inaccessible to a blind or visually impaired person using a screen reader.

These allegations are sufficient to support that if Martinez proves an ADA 

violation, there are alleged workable and legally enforceable remedies that would address 

the ADA violations. In reaching this conclusion, we do not suggest the Accessibility 

Guidelines create a particular legal standard for ADA compliance. But Martinez's 

pleading does not seek to impose liability based solely on Credit Union's failure to 

comply with the Accessibility Guidelines; rather he seeks to impose liability on the 

Credit Union for failing to comply with provisions of the Unruh Civil Rights Act and the 

ADA. Although the Guidelines may be admissible for limited purposes, such as showing 

the feasibility of remedying the defects in the website or to assist in preparing a workable 

injunction if Martinez proves his claim, Martinez's cause of action is not necessarily 
36

dependent on the viability or validity of the Guidelines. (See Thurston, supra, 39 

Cal.App.5th at pp. 646-648.) During the hearing on the motions in limine, counsel stated 

their intent to present expert testimony on the technical website issues, and the court may 

rely on that evidence to determine an appropriate remedy if liability is proven.9 

Additionally, to the extent Credit Union is suggesting that any remedy would be 

overly burdensome, this argument is not the basis for a pleading challenge. As Credit 

Union acknowledged in its trial brief, such claims constitute affirmative defenses. (See 

Andrews, supra, 268 F.Supp.3d at p. 404; Brooklyn Center for Independence of Disabled

v. Bloomberg (S.D.N.Y. 2013) 980 F.Supp.2d 588, 657.) Moreover, what is reasonable, 

unduly burdensome, or a fundamental alteration depends on the particular facts and 

circumstances of the case. (See Andrews, at p. 404; see also Staron v. McDonald's Corp. 

(2d Cir. 1995) 51 F.3d 353, 356.)

III. Motions For Judicial Notice

Martinez brought two motions for judicial notice. In the first motion, he asked 

that we take judicial notice of (1) the DOJ's Statement of Interest filed in May 2012 in a 

case brought by the National Association of the Deaf in a Massachusetts federal district 

court (see Netflix, supra, 869 F.Supp.2d at p. 199); and (2) three unpublished Central 

 

9 Many, if not most, of Credit Union's challenges to the Thurston decision involve 

its conclusions on remedies and the scope of the issued injunction. That case was at a 

different stage than here (granting summary judgment in the disabled plaintiff's favor), 

and thus we do not reach these arguments. We likewise do not address Credit Union's 

comments about standing issues, which Credit Union admits are not before us on this 

appeal. (See Respondent's Brief at p. 36 ["the issue of standing is not presently before 

the Court"].)
37

District of California federal court orders filed in 2014 and 2015 discussing the DOJ's 

position on ADA website coverage and/or reflecting the court's adoption of the "nexus"

theory. 

We decline to take judicial notice of these materials as unnecessary to the

resolution of the appellate issues before us. 

With respect to the DOJ's 2012 Statement of Interest, we have already noted 

(based on statements in published federal cases) that the DOJ has been historically 

generally supportive of ADA website accessibility but has declined to issue specific 

regulations (see fn. 5, ante). We do not find that the DOJ's single statement in one 

particular case eight years ago adds helpful or material information on this point or to our 

analysis.

With respect to the unpublished federal district court decisions, two of the orders 

are available on an online platform (e.g., Westlaw) and therefore judicial notice is 

unnecessary. (See Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 817-818.) 

As reflected in our opinion, we have reviewed various unpublished federal district court 

decisions, and can do so without specifically taking judicial notice of each decision. 

(Ibid.; see Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18.) With 

respect to the third order that is not on an available database, the order does not add 

anything material to our analysis. As to this and the other proffered federal district court 

orders, we have considered more recent published Ninth Circuit authority on these same 

points in reaching our conclusions.
38

In his second motion, Martinez requests that we take judicial notice of a consent 

decree and several settlement agreements in unrelated cases. This motion was untimely 

(filed after Credit Union filed its respondent's brief) and contains information 

unnecessary to our analysis and determination in this case. We thus decline to grant the 

motion.10

DISPOSITION

Judgment reversed. Respondent Credit Union to bear appellant Martinez's costs 

on appeal. 

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.

 

10 We note additionally that we have consolidated this appeal with an appeal from 

the same case filed prematurely by Martinez.