National Federation of the Blind et al v. Target Corporation

Filing 16

First MOTION to Dismiss Amended Complaint filed by Target Corporation. Motion Hearing set for 6/5/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Naeve, Robert) (Filed on 4/27/2006)

National Federation of the Blind et al v. Target Corporation

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ROBERT A. NAEVE (CA SBN 106095) [e-mail] MORRISON & FOERSTER LLP 19900 MacArthur Boulevard Irvine, California 92612-2445 Telephone: [phone] Facsimile: [phone] DAVID F. MCDOWELL (CA SBN 125806) MICHAEL J. BOSTROM (CA SBN 211778) [e-mail] [e-mail] MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant TARGET CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, v. TARGET CORPORATION and DOES ONE-TEN, Defendant.

Case No.

C06-01802 MHP

DEFENDANT TARGET CORPORATION'S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT OR, IN THE ALTERNATIVE, MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER [Fed. R. Civ. P. 12(b)(6), (f)] Hearing Date: Time: June 5, 2006 2:00 p.m.

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TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT.............................................................. 1 STATEMENT OF FACTS.............................................................................................................. 2 ARGUMENT .................................................................................................................................. 3 I. NEITHER TITLE III OF THE ADA NOR CALIFORNIA'S PUBLIC ACCOMMODATIONS LAWS HAVE BEEN AMENDED TO APPLY TO INTERNET WEBSITES ..................................................................................................... 3 A. Congress Has Not Amended Title III Of The ADA To Apply To Public Accommodations' Websites.................................................................................... 4 1. In 1998, Congress Amended The Rehabilitation Act To Require Websites Maintained By Federal Agencies And Contractors To Be Accessible to Individuals With Disabilities ................................................ 4 Congress, However, Has Not Taken Similar Steps To Amend Title III Of The ADA To Apply To Public Accommodations' Websites ...................................................................................................... 5

The Legislature Has Not Amended California's Public Accommodations Laws To Apply to Internet Websites....................................................................... 6 1. In 2002, The Legislature Amended Government Code Section 11135 To Require State Government Websites To Be Accessible To Individuals With Disabilities.......................................... 6 The Legislature, However, Has Not Taken Similar Steps To Amend Either The Unruh Or The Disabled Persons Act To Apply with Internet Websites ......................................................................................... 6

NFB'S THIRD CLAIM FOR RELIEF FOR ALLEGED VIOLATION OF TITLE III OF THE ADA FAILS TO STATE A CLAIM FOR RELIEF BECAUSE THE ADA DOES NOT APPLY TO TARGET'S WEBSITE ..................................................... 7 A. Title III Of The ADA Prohibits Covered "Public Accommodations" From Discriminating In Physical "Places of Public Accommodation" ............................ 8 NFB Has Not Alleged, And Cannot Establish, That Target.com Is A Physical "Place Of Public Accommodation" .......................................................... 8 The Unruh Act Does Not Apply to Target's Website ........................................... 11 1. The Internet Is Far Afield From The Traditional Scope of the Unruh Act, Which Encompasses Only Places of Public Accommodation........... 13 Interpreting the Unruh Act to Apply to the Internet Would Raise Serious Constitutional Concerns ............................................................... 14

NFB CANNOT STATE A CLAIM FOR RELIEF UNDER THE UNRUH ACT ........... 11

NFB Has Not Alleged, And Cannot Allege Intentional Discrimination Under The Unruh Act............................................................................................ 15 1. 2. Intentional Discrimination Is Required to Support An Unruh Act Violation That Cannot Be Predicated On An ADA Violation .................. 15 NFB Has Not And Cannot Allege Intentional Discrimination Under the Unruh Act ............................................................................................ 16 i

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TABLE OF CONTENTS (continued) Page The Unruh Act Does Not Require Public Accommodations To Construct, Alter, Repair Or Modify Covered Facilities.......................................................... 18

NFB CANNOT STATE A CLAIM FOR RELIEF UNDER THE DISABLED PERSONS ACT ................................................................................................................ 19 CALIFORNIA'S ACCESS STATUTES WOULD VIOLATE THE COMMERCE CLAUSE IF THEY WERE INTERPRETED AS APPLYING TO THE INTERNET ....................................................................................................................... 21 A. California May Not Project Its Laws Into Conduct Occurring Entirely Outside Its Borders ................................................................................................ 21 Any Regulation of the Internet Must Be Instituted At the National Level .......... 23

NFB'S CLAIM FOR DECLARATORY RELIEF FAILS BECAUSE NFB CANNOT SHOW TARGET'S WEBSITE VIOLATES THE ADA OR CALIFORNIA'S ACCESS STATUTES .......................................................................... 24 CONCLUSION ................................................................................................................. 24

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TABLE OF AUTHORITIES Page CASES Access Now v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002).................................................................................... 10 American Booksellers Foundation v. Dean, 42 F.3d 96 (2d Cir. 2003) ........................................................................................................ 22 American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999) ............................................................................................... 22 American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) ......................................................................................... 22 Arnold v. United Artists Theatre Cir., Inc., 158 F.R.D. 439 (N.D. Cal. 1994) ............................................................................................ 20 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) .......................................................................................................... 21, 22 Burks v. Poppy Construction Co., 57 Cal. 2d 463 (1962).............................................................................................................. 13 Center for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004)....................................................................................... 22 Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000) ................................................................................................. 11 Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670 (1998)........................................................................................... 11, 12, 13, 14 Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ...................................................................................................... 9 Green v. The Graduate Theological Union, 2000 U.S. Dist. LEXIS 15937 ................................................................................................... 5 Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510 (1998).............................................................................................. 20, 21 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991).................................................................................... 15, 16, 17, 18, 19 Healy v. Beer Inst., 491 U.S. 324 (1989) ................................................................................................ 2, 14, 21, 22 Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050 (2005)........................................................................................ 12, 14 Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d 72 (1985)................................................................................................................ 11 Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824 (2005)........................................................................................... 15, 16, 17, 18 Lentini v. California Center For The Arts, 370 F. 3d 837 (9th Cir. 2004) .................................................................................................. 15

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TABLE OF AUTHORITIES (continued) Page Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881 (1976) ........................................................................................... 2, 19, 20 Psinet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004) ................................................................................................... 22 Reno v. ACLU, 521 U.S. 844 (1997) ........................................................................................................ 1, 7, 13 Southeast Booksellers Ass'n v. McMaster, 371 F. Supp. 2d 773 (D.S.C. 2005) ......................................................................................... 22 Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) ............................................................................................................ 2, 15 Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035 (N.D. Cal. 2001)................................................................................... 11 United States v. Carter, 421 F.3d 909 (9th Cir. 2005) ..................................................................................................... 7 Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995)............................................................................................................. 13 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) ............................................................................................. 3 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) ............................................................................................. 9, 10 Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041 (9th Cir 1999) .................................................................................................... 5 CONSTITUTIONS, STATUTES AND REGULATIONS Commerce Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 3. ................................................................................................. 2, 14 28 C.F.R. § 36.104 ...................................................................................................................... 1, 9 29 U.S.C. § 701 Rehabilitation Act of 1973 .................................................................................................. 4, 6 29 U.S.C. § 794(a)........................................................................................................................... 4 29 U.S.C. § 794d(a)(1)(A)(i)-(ii)..................................................................................................... 4 29 U.S.C. § 794d(a)(2)(A)............................................................................................................... 4 36 C.F.R. § 1194.22 ........................................................................................................................ 4 42 U.S.C. § 12101 Americans with Disabilities Act................................................................................................ 1 42 U.S.C. § 12181(1)....................................................................................................................... 9 42 U.S.C. § 12181(7)....................................................................................................................... 8 42 U.S.C. § 12182(a)....................................................................................................................... 8

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TABLE OF AUTHORITIES (continued) Page United States Dep't of Justice, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, 35551 (1991) ............................................................................................ 8 Workforce Investment Act of 1998, Pub. L. No. 105-220, 112 Stat. 936 (1998) ............................................................................... 4 Cal. Civ. Code § 51 Unruh Civil Rights Act...................................................................................................... 1, 18 Cal. Civ. Code § 51(a)................................................................................................................... 11 Cal. Civ. Code § 51(d)..................................................................................................................... 1 Cal. Civ. Code § 52 ....................................................................................................................... 16 Cal. Civ. Code § 54.1 ................................................................................................................ 2, 20 Cal. Civ. Code § 54.1(a)(1) ........................................................................................................... 19 Cal. Civ. Code §§ 51 and 54.1 ........................................................................................................ 3 Cal. Civ. Code §51(f) .................................................................................................................... 15 California Government Code § 4450 ............................................................................................ 20

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Dated: April 27, 2006

NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on June 5, 2006 at 2:00 p.m., or as soon thereafter as the matter may be heard by the above-entitled Court located at 450 Golden Gate Avenue, San Francisco, California 94102, Courtroom 15, defendant Target Corporation ("Target") will and hereby does move the Court, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss plaintiffs National Federation of the Blind, the National Federation of the Blind of California and Bruce F. Sexton's ("NFB") first, second, third and fourth claims for relief. In the alternative, Target moves the Court, pursuant to Rule 12(f), to strike NFB's claims under Title III of the Americans with Disabilities Act, California's Unruh Civil Rights Act, and California's Blind and Other Physically Disabled Persons Act. This Motion is brought on the ground that NFB has not stated a claim for relief under any of these acts. This Motion is based on this Notice of Motion and Motion and Supporting Memorandum of Points and Authorities, and on such further written and oral argument as may be presented at or before the time the Court takes this motion under submission.

ROBERT A. NAEVE DAVID F. MCDOWELL MICHAEL J. BOSTROM MORRISON & FOERSTER LLP

By: 21 22 23 24 25 26 27 28

/s/ Robert A. Naeve Robert A. Naeve Attorneys for Defendant TARGET CORPORATION

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INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs National Federation of the Blind, the National Federation of the Blind of California and Bruce F. Sexton ("NFB") claim in this action that federal and state laws that prohibit disability discrimination in places of public accommodations somehow apply to Internet websites, even though such websites are "located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet." E.g., Reno v. ACLU, 521 U.S. 844, 851 (1997). In particular, NFB alleges that Defendant Target Corporation's ("Target") website at www.target.com violates Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("Title III" or "Title III of the ADA"), California's Unruh Civil Rights Act, California Civil Code section 51 et seq. ("Unruh Act"), and California's Blind and Other Physically Disabled Persons Act, California Civil Code section 54, et seq. ("Disabled Persons Act"), because it is "difficult if not impossible" for blind customers to use (Am. Compl., ¶ 1). Even assuming the truth of the factual allegations, NFB's claims under Title III, the Unruh Act, and Disabled Persons Act should be dismissed or, in the alternative, stricken, for at least the following reasons: 1. Title III of the ADA does not apply to websites. As we explain in detail below, the prohibitions of Title III are restricted to physical "places of public accommodation," which include only "facilities," such as "buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property . . . ." 28 C.F.R. § 36.104. Internet websites are not actual physical places or facilities, and fall outside Title III's regulatory purview. NFB cannot state a claim under the Unruh Act because: (a) the Unruh Act does not apply to websites; (b) NFB has not alleged and cannot allege the intentional discrimination required to support an Unruh Act claim; and (c) the Unruh Act does not by its terms require public accommodations to construct, alter, repair or modify covered facilities, Cal. Civ. Code § 51(d).

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3.

NFB cannot state a claim under the Disabled Persons Act because: (a) the Disabled Persons Act only applies to physical places, not to websites, Cal. Civ. Code § 54.1; and (b) NFB must prove Target's website violates California's building codes, which they cannot do. Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881, 892 (1976).

4.

Even if the Unruh Act and Disabled Persons Act could somehow be interpreted as requiring Target to modify its website, applying those statutes to Target's website would amount to a per se violation of the Commerce Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 3. First, by requiring Target to modify its website, California would be impermissibly regulating conduct occurring outside its borders because Target's website is accessible to consumers all around the country, not just those in California. Healy v. Beer Inst., 491 U.S. 324, 336 (1989). Second, regulation of the Internet is exclusively reserved for Congress because otherwise Target, and all other Internet users, could be subjected to inconsistent and contradictory state law standards. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945).

5.

NFB's fourth claim for a declaration that Target's website violates the ADA and California's access statutes fails for all the reasons listed above. STATEMENT OF FACTS

On February 7, 2006, NFB filed the action captioned above in the Superior Court of California, County of Alameda. NFB's original complaint generally alleged that Target's website, located at www.target.com, cannot be accessed by blind individuals in violation of the Unruh Act and the Disabled Persons Act. On March 8, 2006, Target removed this action from the Superior Court of California, County of Alameda to this Court. Thereafter, on March 15, 2006, Target filed and served a motion to dismiss all claims in NFB's Complaint.

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On March 30, 2006, before Target's motion was heard, NFB filed its Amended Complaint in this action. On April 13, 2006, this Court granted Target leave under its Standing Order and relief from the stay imposed by General Order 56 to file this Motion to Dismiss. In its Amended Complaint, NFB does not allege that Target in any way impedes blind individuals' access to Target's brick and mortar stores. NFB's claims are limited solely to Target's website. NFB generally alleges Target's website is inaccessible and is "difficult if not impossible for blind customers to use." (Am Compl., ¶ 1, ¶ 29.) Based on these allegations, NFB asserts four purported claims for relief. In its first and second claims for relief, NFB alleges Target's website is inaccessible to blind individuals in violation of the Unruh Act, and the Disabled Persons Act, respectively. NFB bases both its Unruh Act claim and its Disabled Persons Act claim, at least in part, on allegations that Target's website also violates Title III of the ADA. (Am. Compl., ¶¶ 42, 50.) (A Title III violation amounts to an automatic Unruh Act and Disabled Persons Act violation. See Cal. Civ. Code §§ 51 and 54.1.) In its third claim for relief, NFB purports to assert an independent claim under Title III, not tied to California's access statutes. Finally, in its fourth claim for relief, NFB repeats its Title III, Unruh Act and Disabled Persons Act claims by seeking a declaration that Target's website violates all of these statutes. (Am. Compl., ¶ 62.) For purposes of this Motion only, we assume the truth of NFB's factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (on a motion to dismiss, courts will "generally assume the factual allegations to be true"). As explained below, even assuming NFB's factual allegations are true, NFB has not stated, and cannot state, a claim under Title III, the Unruh Act, or the Disabled Persons Act. NFB's claims under those statutes should be dismissed or, in the alternative, stricken without leave to amend. ARGUMENT NEITHER TITLE III OF THE ADA NOR CALIFORNIA'S PUBLIC ACCOMMODATIONS LAWS HAVE BEEN AMENDED TO APPLY TO INTERNET WEBSITES Before analyzing the specific statutes relating to NFB's complaint in this action, we begin by noting that the issues about which NFB complains have been the subject of legislative study. TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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A.

Congress Has Not Amended Title III Of The ADA To Apply To Public Accommodations' Websites

Congress enacted the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., to "develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living[.]" 29 U.S.C. § 701 (1988 ed.). Section 503 of the Rehabilitation Act generally requires parties contracting with the federal government to take affirmative action to employ and advance qualified individuals with handicaps. 29 U.S.C. § 793. Section 504 of the Rehabilitation Act generally prohibits discrimination against otherwise qualified individuals with handicaps by any programs or activities receiving federal financial assistance, and by programs or activities conducted by any Executive agency or the United States Postal Service. 29 U.S.C. § 794(a). 1. In 1998, Congress Amended The Rehabilitation Act To Require Websites Maintained By Federal Agencies And Contractors To Be Accessible to Individuals With Disabilities

Significantly, the Rehabilitation Act in its original form did not purport to apply to Internet websites. It was for this reason that Congress enacted the Workforce Investment Act of 1998, Pub. L. No. 105-220, 112 Stat. 936 (1998). Among other things, the Workforce InvestmenT Act amended section 508 of the Rehabilitation Act to require that electronic and information technology be accessible to and useable by federal employees with disabilities, as well as individuals with disabilities who are members of the public who seek information or services from a federal agency. See 29 U.S.C. § 794d (a)(1)(A)(i)-(ii). Congress further directed the federal Architectural and Transportation Barriers Compliance Board (the "Access Board") to develop regulations implementing amended section 508. 29 U.S.C. § 794d (a)(2)(A). The Access Board complied with this directive by publishing its Final Rule on Electronic and Information Technology Accessibility Standards in December of 2000. See 36 C.F.R. Part 1194.22, 65 Fed. Reg. 80500 (2000). As is relevant to our discussion here, the Access Board's regulations contain specific rules that describe how websites maintained by Federal agencies are to be made accessible. See 36 C.F.R. § 1194.22.

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To be clear: Section 508, as well as the Access Board's website accessibility standards do not apply in this case, because NFB does not, and cannot, allege that Target is a federal agency. 2. Congress, However, Has Not Taken Similar Steps To Amend Title III Of The ADA To Apply To Public Accommodations' Websites

Congress enacted the Americans with Disabilities Act in 1990. See Pub. L. 101-336. 104 Stat. 328 (1990) ("ADA"). In general, the ADA is modeled upon the Rehabilitation Act. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir 1999) ("There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act"); Green v. Graduate Theological Union, 2000 U.S. Dist. LEXIS 15937 (N.D. Cal. 2000). It is for at least this reason that the ADA provides in part that "nothing in this Act shall be construed to apply a lesser standard than the standards applied under" the Rehabilitation Act (42 U.S.C. § 12201(a)), and that courts routinely look to Rehabilitation Act case law to interpret the rights and obligations created by the ADA (Zukle at 1045 n.11). Like the Rehabilitation Act, prior to its amendment by the Workforce Investment Act, the ADA does not by its terms mention, let alone attempt expressly to regulate, electronic and information technology. Indeed, in February 2000, some two years after Congress amended section 508 to require federal websites to be accessible to individuals with disabilities, Congress held public hearings to consider whether to extend Title III of the ADA to Internet websites operated by public accommodations. See Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 2nd Sess. 65-010 (2000). Significantly, Congress has not amended the ADA to require accessibility to electronic and information technology maintained by private businesses like Target.

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B.

The Legislature Has Not Amended California's Public Accommodations Laws To Apply to Internet Websites

Much the same can be said of California law. 1. In 2002, The Legislature Amended Government Code Section 11135 To Require State Government Websites To Be Accessible To Individuals With Disabilities

4 5 6 7 8 9 10 (1) 11 12 13 14 15 16 17 18 19 (3) 20 21 22 23 24 25 26 27 28 2. (2)

We are not aware of any state statute that by its terms purports to require that Internet websites maintained by public accommodations or other business enterprises be made accessible to and useable by individuals with disabilities. In 2002, however, the California Legislature adopeted its own version of the Workforce Investment Act by adding new subdivision (d) to Government Code section 11135. As amended, section 11135(d) provides as follows: The Legislature finds and declares that the ability to utilize electronic or information technology is often an essential function for successful employment in the current work world. In order to improve accessibility of existing technology, and therefore increase the successful employment of individuals with disabilities, particularly blind and visually impaired and deaf and hard-of-hearing persons, state governmental entities, in developing, procuring, maintaining, or using electronic or information technology, either indirectly or through the use of state funds by other entities, shall comply with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Sec. 794d), and regulations implementing that act as set forth in Part 1194 of Title 36 of the Federal Code of Regulations. Any entity that contracts with a state or local entity subject to this section for the provision of electronic or information technology or for the provision of related services shall agree to respond to, and resolve any complaint regarding accessibility of its products or services that is brought to the attention of the entity. The Legislature, However, Has Not Taken Similar Steps To Amend Either The Unruh Or The Disabled Persons Act To Apply with Internet Websites

As this Court knows, the Unruh Act, and the Disabled Persons Act generally prohibit private businesses in California from discriminating against individuals with disabilities. As we explain in greater detail below, no court has held that either of these acts applies to Internet

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websites. Nonetheless, the California Legislature has chosen not to amend either statute to cover Internet websites as it did in section 11135(d)(2) for the State's own websites. It is in this legislative vacuum that NFB's complaint must be evaluated. In the sections that follow, we demonstrate that, in the absence of specific legislation, Title III of the ADA, as well as the Unruh and Disabled Persons Act, simply cannot be extended to cover Internet websites maintained by private businesses. II. NFB'S THIRD CLAIM FOR RELIEF FOR ALLEGED VIOLATION OF TITLE III OF THE ADA FAILS TO STATE A CLAIM FOR RELIEF BECAUSE THE ADA DOES NOT APPLY TO TARGET'S WEBSITE Congress enacted the ADA to provide "a clear and comprehensive national mandate for the elimination of discrimination against qualified individuals with disabilities." See 42 U.S.C. § 12101. However, as a matter of statutory interpretation, the scope of this national mandate is necessarily defined and limited by the terms of the Act itself. United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005) ("It is well settled that, in a statutory construction case, analysis must begin with the language of the statute itself; when the statute is clear, judicial inquiry into its meaning, in all but the most extraordinary circumstance, is finished.") (citations and quotations omitted). Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997) ("To determine whether a benefit plan provided by an employer falls within the prohibitions of Title III, we must begin by examining the statutory text"), cert. denied, 522 U.S. 1084 (1998). In this action, NFB's third claim for relief is predicated upon the contention that Title III of the ADA, which prohibits discrimination in places of public accommodations, somehow applies to Internet websites that, by definition, have no place at all. See Reno v. ACLU, 521 U.S. 844, 851 (1997). The legal question addressed by NFB's third claim for relief is whether Internet websites like www.target.com fall within Title III's definition of "place of public accommodation." We demonstrate in the paragraphs below that, as a matter of statutory construction, this term refers to only physical places and facilities, and not to intangible places like Internet websites.

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A.

Title III Of The ADA Prohibits Covered "Public Accommodations" From Discriminating In Physical "Places of Public Accommodation"

The starting place for this Court's analysis is Title III itself. As this Court is well aware, Title III's general rule against discrimination provides as follows: 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) (emphasis added). Under the Act, a private entity is considered a "public accommodation" if its operations affect commerce, and fall within one of 12 enumerated categories. 42 U.S.C. § 12181(7). One of these enumerated categories is "sales or rental establishment." 42 U.S.C. § 12181(7)(E). In this case, NFB alleges that Target operates "approximately 1,400 stores in 47 States, including 205 stores in California," and that these stores provide "important goods such as clothing, pharmaceuticals, and household items" for sale to the public. (Am. Compl., ¶ 11.) Hence, for purposes of this Motion to Dismiss, NFB has adequately alleged that Target itself is a public accommodation as defined in 42 U.S.C. § 12181(7)(E). B. NFB Has Not Alleged, And Cannot Establish, That Target.com Is A Physical "Place Of Public Accommodation"

But being a covered "public accommodation" is not by itself sufficient for purposes of establishing a claim for relief under Title III. Instead, as we have attempted to demonstrate graphically through the use of single and double underlining of section 12182(a) above, Title III liability can only be established if a covered public accommodation engages in a prohibited act of discrimination with respect to any place of public accommodation. 42 U.S.C. § 12182(a); see United States Dep't of Justice, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, 35551 (1991) ("The final rule defines `place of public accommodation' as a facility, operated by a private entity, whose

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operations affect commerce and fall within at least one of 12 specified categories. The term `public accommodation,' on the other hand, is reserved by the final rule for the private entity that owns, leases (or leases to), or operates a place of public accommodation. It is the public accommodation, and not the place of public accommodation, that is subject to the regulation's nondiscrimination requirements.") It is here that NFB's Title III claim for relief falters. The term "place" as used in the phrase "place of public accommodation" is defined to mean "a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the" twelve "public accommodation" categories. 28 C.F.R. § 36.104 (emphasis added). The term "facility," is further defined to include "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." Id. The plain meaning of these provisions is that the term "place of public accommodation" refers to actual physical places, and not to websites that can be accessed from anywhere, without any reference to a physical building or facility. E.g., Stoutenborough v. National Football League, Inc., 59 F.3d 580, 583 (6 Cir. 1995) ("Also the prohibitions of Title III are restricted to `places" of public accommodation, disqualifying the National Football League, its member clubs, and the media defendants"), cert. denied, 516 U.S. 1028 (1995); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (holding that "the plain meaning of Title III is that a public accommodation is a [physical] place"). The Ninth Circuit has long since recognized that, as a matter of statutory construction, Title III of the ADA only applies to cases in which the plaintiff claims to have been denied access to an actual physical place. In Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), the Ninth Circuit considered the question of whether an insurance company that administers an employer-provided disability plan was a place of public accommodation under Title III of the ADA. The court began its analysis by recognizing that Title III provides an extensive list of public accommodations in 42 U.S.C. § 12181(1), including an inn, a restaurant, a theater, an auditorium, a bakery, a laundromat, a depot, a museum, a zoo, a nursery, a day care TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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center, and a gymnasium. The court then noted that all of the items on the list have something in common: "They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services." Weyer at 1114. The court found that the principle of noscitur a sociis (know it from its associates) requires that the term, "place of public accommodation," be interpreted "within the context of the accompanying words, and this context suggests that some connection between the good or service complained of and actual physical place is required." Id. Based on this reasoning, the court found that plaintiff's claim, which was not centered on the accessibility of an actual physical place, was not cognizable under Title III of the ADA: The question then is whether an insurance company, like UNUM, that administers an employer-provided disability plan is a `place of public accommodation.' Certainly, an insurance office is a place where the public generally has access. But this case is not about such matters as ramps and elevators so that disabled people can get to the office. The disputes in this case, over the terms of a contract that the insurer markets through an employer, is not what Congress addressed in the public accommodations provisions. Id. (emphasis added).

16 The same reasoning applies here. Target itself may be a "public accommodation." Its 17 brick and mortar stores may be "places of public accommodation." However, NFB does not 18 allege in this action that individuals with vision impairments are denied access to one of Target's 19 brick and mortar stores or the goods they contain. Instead, NFB alleges in its third claim for relief 20 that individuals with vision impairments cannot gain "access" to Target's Internet website, which 21 by definition does not exist in any physical place. NFB's third claim for relief, therefore, is not 22 cognizable under Title III of the ADA because it does not allege denial of access to a physical, 23 concrete structure. Access Now v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fla. 24 2002) ("to fall within the scope of the ADA as presently drafted, a public accommodation must be 25 a physical, concrete structure. To expand the ADA to cover `virtual' spaces would be to create 26 new rights without well-defined standards.") app. dismissed, 385 F.3d 1324 (11th Cir. 2004); 27 NFB's third claim for relief should be dismissed without leave to amend accordingly. See also 28 TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1047 (9th Cir. 2000) (under the ADA "an insurance office must be physically accessible to the disabled but need not provide insurance that treats the disabled equally with the non-disabled."); Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035, 1038 (N.D. Cal. 2001) (dismissing Title III claim that cable service provider must make a list of available programs accessible to the visually impaired, and holding that "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."). III. NFB CANNOT STATE A CLAIM FOR RELIEF UNDER THE UNRUH ACT The Unruh Act in general, prohibits "business establishments of every kind whatsoever," from discriminating on the basis of a disability. Cal. Civ. Code §51(b) Here, NFB cannot state a claim for relief under the Unruh Act because: (1) the Unruh Act does not apply to Target's website; (2) NFB has not alleged, and cannot allege, intentional discrimination cognizable under the Unruh Act; and (3) the Unruh Act is plain on its face that it does not require Target to alter, repair or modify its website as NFB requests. A. The Unruh Act Does Not Apply to Target's Website

The Unruh Act prohibits discrimination in "all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). The threshold issue on NFB's first claim for relief is, therefore, one of first impression in California: Does the term "business establishment" include a retailer's website? Answering this question is not easy. The California Supreme Court has recognized that the term "business establishment" is at best "ambiguous" (Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670, 723 (1998) (Kennard, J., concurring)) and that the law interpreting the term "is a mess" (Id. at 733 (Brown, J., concurring)). NFB will undoubtedly argue that the Internet should easily be found to fall within the Unruh Act's gambit because the term "business establishment" is to be interpreted in "the broadest sense reasonably possible." Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d 72, 78 (1985) (emphasis added). But the California Supreme Court has made clear that the reach of the Unruh Act is not limitless, and that the term "reasonable" does have teeth. See Curran, 17 Cal. TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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4th at 701 ("the existing language of the Unruh Civil Rights Act -- applicable to `all business establishments of every kind whatsoever' -- cannot reasonably be interpreted to bring the membership decisions of the Boy Scouts within the reach of the Act."). Moreover, California courts recognize a dichotomy similar to that created by the terms "public accommodation" and "place of public accommodation" by recognizing that the Unruh Act may be applicable to some aspects of an entity's operations but not others. In Curran, the court concluded: Although we have no doubt that the Unruh Civil Rights Act would apply to, and would prohibit discrimination in, the actual business transactions with nonmembers engaged in by the Boy Scouts in its retail stores and elsewhere . . . we conclude that such transactions do not render the Boy Scouts a business establishment so as to bring its membership policies or decisions within the reach of the Unruh Civil Rights Act. Curran at 700. Similarly, in Ingels v. Westwood One Broadcasting Services, Inc., the court found that certain aspects of operating and publishing a commercially syndicated talk show may qualify for treatment under the Unruh Act: "for example, when addressing issues of discrimination in advertising or denial of access to facilities." 129 Cal. App. 4th 1050, 1072 (2005). The Ingels court nonetheless found that decisions regarding which callers to air on the show are not subject to the Unruh Act. Id. at 1074 (finding plaintiff's complaint that radio show host berated him for addressing the issue of age when he got on the air did not qualify for treatment under the Unruh Act). Thus, while the broad reach of the term "business establishment" may encompass Target's brick and mortar stores, this does not mean that Target's website also constitutes a "business establishment" under the Unruh Act. In fact, as we demonstrate below, two of the California Supreme Court's touchstones for determining whether an entity's operations constitute a "business establishment" -- (1) whether the operations constitute a traditional place of public accommodation, and (2) whether the proposed extension of the Unruh Act would raise serious constitutional concerns -- militate against finding the Unruh Act applies to Target's website.

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1.

The Internet Is Far Afield From The Traditional Scope of the Unruh Act, Which Encompasses Only Places of Public Accommodation

In determining whether the defendant's operations at issue constitute a "business establishment" under the Unruh Act, courts look, at least in part, to see whether the operations at issue constitute a traditional place of public accommodation or amusement that was subject to the California public accommodation statute that preceded the Unruh Act. See Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 616-17 (1995) (acknowledging that "the reach of section 51 cannot be determined invariably by reference to the apparent `plain meaning' of the term `business establishment'" and looking from a historical perspective whether "statutes prohibiting discrimination in places of public accommodation" have been applied to membership policies of private social clubs); Curran, 17 Cal. 4th at 698 (declining to extend the Unruh Act's reach to the Boy Scouts at least in part because "Plaintiff has cited no authority, and we are aware of none, that suggests an organization like the Boy Scouts would have been considered a place of public accommodation or amusement under California's earlier public accommodation law . . . ."). Here, of course, Target's website does not fall within the traditional scope of places of public accommodation because the Internet is a modern invention that does not exist in any place at all. E.g., Reno v. ACLU, 521 U.S. 844, 851 (1997) (websites are "located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet."). Target acknowledges that California courts have not limited the Unruh Act's reach to entities with a "fixed location." Burks v. Poppy Construction Co., 57 Cal. 2d 463, 468-69 (1962) (finding defendant real estate developer's sales activities were covered by the Unruh Act even though those activities had no fixed location.). But neither California's legislature, nor its courts have ever extended the Unruh Act to business operations, like Target's website, that have no location at all. Moreover, fundamental due process suggests that a decision extending the reach of the Unruh Act to the Internet is one that should come, if at all, from the legislature, not the courts. Here, NFB seeks statutory minimum damages under Civil Code section 52 amounting to $4,000 for each blind Californian who has allegedly been unable to access Target's website. (Am. TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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Compl., ¶ 44.) As we explained in our Notice of Removal, the National Eye Institute estimates that more than 356,000 blind and visually impaired individuals over the age of 40 reside in California.1 Due process and traditional notions of fairness demand that Target and other retailers be provided with reasonable clarity on whether the Unruh Act applies to their websites before they can be saddled with the magnitude of liability NFB seeks to establish here. See Curran, 17 Cal. 4th at 729 ("Organizations, and the people they affect, are entitled to know with a fair degree of certainty whether the law applies to them or not.") (Werdeger, J., concurring). 2. Interpreting the Unruh Act to Apply to the Internet Would Raise Serious Constitutional Concerns

Another test California courts employ to determine if a defendant's specific operations constitute a "business establishment" under the Unruh Act is whether the proposed application of the Act will raise serious questions regarding its constitutionality. "An ambiguous statutory term should be construed, if possible, to avoid constitutional difficulties." Curran, 17 Cal. 4th at 722 (Kennard, J. concurring in judgment that Boy Scouts' membership and policy decision do not fall within the reach of the Unruh Act because holding otherwise would conflict with the First Amendment to the federal Constitution); Ingels, 129 Cal. App. 4th at 1074 (access to a public radio show does not fall within the scope of the Unruh Act because of the First Amendment issues implicated). Here, as we explain in greater detail in section IV below, interpreting the Unruh Act to apply to the Internet would amount to a per se violation of the Commerce Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 3. First, by requiring Target to modify its website, California would be impermissibly regulating conduct occurring outside its borders because Target's website is accessible to consumers all around the country, not just those in California. Healy v. Beer Inst., 491 U.S. 324, 336 (1989). Second, regulation of the Internet is exclusively reserved for Congress because otherwise Target, and all other Internet users, could be subjected The National Eye Institute is a component of the National Institutes of Health, which is a Federal government agency, and a part of the U.S. Department of Health and Human Services.
1

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to inconsistent and contradictory state law standards. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945).2 B. NFB Has Not Alleged, And Cannot Allege Intentional Discrimination Under The Unruh Act

Even assuming arguendo that Target's website is a "business establishment" under the Unruh Act, NFB's claim would still fail because NFB has not alleged, and cannot allege the type of intentional discrimination required to support an Unruh Act violation. 1. Intentional Discrimination Is Required to Support An Unruh Act Violation That Cannot Be Predicated On An ADA Violation

The California Supreme Court has long held that "a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act." Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (1991). In 1992, the Unruh Act was amended to provide that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section." Cal. Civ. Code § 51(f). We acknowledge for purposes of this motion only that a plaintiff need not show intentional discrimination in order to make out a violation of the ADA and for that reason, the Ninth Circuit has held that "no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation." Lentini v. California Center For The Arts, 370 F.3d 837, 847 (9th Cir. 2004). However, a plaintiff is still required to plead and prove intention discrimination where, as here, the alleged Unruh Act violation cannot be premised on an ADA violation. Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824, 854 (2005) (holding in a non-ADA case that "a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.").

Target believes the Commerce Clause is dispositive of NFB's Unruh Act and Disabled Persons Act claims. If, however, NFB's claims were to survive the pleading stage, the First Amendment issues raised by NFB's claims would have to be litigated.

2

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2.

NFB Has Not And Cannot Allege Intentional Discrimination Under the Unruh Act

The California Supreme Court has held that to satisfy the intentional discrimination requirement of the Unruh Act, a plaintiff must allege and prove "willful, affirmative misconduct" that is "morally offensive." Harris, 52 Cal. 3d 1142, 1172. A plaintiff cannot satisfy the intentional discrimination requirement merely by alleging that a defendant's conduct, while equally applicable to all patrons of the business establishment, has a negative effect on a specific group protected by the Unruh Act. Koebke, 36 Cal. 4th 824, 854. In Harris, plaintiffs alleged defendant apartment managers discriminated against women by requiring a monthly income of three times the monthly rent in order to qualify for a lease. Plaintiffs alleged that a disproportionate number of families receiving public assistance are headed by females; that women generally have lower average income than males; and that defendant's income policy disparately impacted women in violation of the Unruh Act. The Harris court rejected plaintiffs' disparate impact theory for three reasons: First, section 52 of the Act states: "Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction, or restriction" contrary to the provisions of section 51 "is liable for each such offense . . . up to a maximum of three times the amount of actual damages . . . ." Cal. Civ. Code § 52. The "references to `aiding' and `inciting' denial of access to public accommodations, to making discriminations and restrictions, and to the commission of an `offense' imply willful, affirmative misconduct on the part of those who violate the Act." Harris at 1172 (emphasis added). Second, the damages provision allowing for an exemplary award of up to treble the actual damages suffered with a stated minimum amount "reveals a desire to punish intentional and morally offensive conduct." Id. Third, "the Act explicitly exempts standards that are `applicable alike to persons of every sex, color, race, religion, ancestry, national origin, or blindness or other physical disability." Id. If the Legislature had intended to include adverse impact TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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claims, "it would have omitted or at least qualified this language in section 51." Id. The California Supreme Court has also held that a plaintiff may not avoid the bar on disparate impact claims by recasting them as "disparate treatment" claims. Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824, 854 (2005). In Koebke, plaintiffs, a lesbian couple, alleged defendant country club intentionally discriminated against gays and lesbians by adopting a policy that allowed a spouse unlimited access to the Club, but denied the same benefits to committed gay couples who cannot marry. Recognizing the bar on disparate impact claims Harris established, plaintiffs alleged their claim was for "disparate treatment," not disparate impact: Plaintiffs argue that, unlike disparate impact, in which the disproportionate impact of a facially neutral policy on a protected class is a substitute for discriminatory intent, their claim is that BHCC's [the club] discriminatory intent was established by its adoption of marriage as the criterion by which to extend benefits to some of its members, but not others, because gay and lesbian couples cannot marry in this state. Thus, according to plaintiffs, BHCC's adoption of the spousal benefit policy amounted to intentional sexual orientation discrimination.

The Koebke Court, however, rejected plaintiffs' claim because "plaintiffs' argument, like disparate impact analysis, relies on the effects of a facially neutral policy on a particular group and would require us to infer solely from such effects a discriminatory intent. Accordingly, the reasons we gave for rejecting disparate impact in Harris would seem to apply with equal force to plaintiffs' theory." Id. (emphasis in original). Here, NFB has not alleged any "affirmative misconduct" on Target's part that is "intentional and morally offensive." Harris, 52 Cal. 3d at 1172. NFB only alleges Target's actions constitute intentional discrimination against the blind "in that: Target has constructed a website that is inaccessible to class members; maintains the website in this inaccessible form; and has failed to take actions to correct these barriers even after being notified of the discrimination that such barriers cause." (Am. Compl., ¶ 41.) In other words, NFB relies solely on the alleged TARGET'S MOTION TO DISMISS (CASE NO. C06-01802 MHP)
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"effects" of Target's website "on a particular group" -- here, blind individuals -- and would require this Court "to infer solely from such effects a discriminatory intent." Koebke at 854. Under Harris and Koebke, however, this Court may not do so. Indeed, NFB's claim raises the precise concerns at issue in Harris. There, the court was concerned with applying the Unruh Act, which contains damages provisions allowing for an exemplary award of up to treble the actual damages suffered with a stated minimum amount, without a showing of "willful, affirmative misconduct" that is "intentional and morally offensive[.]" Harris, 52 Cal. 3d at 1172. Here, NFB seeks to impose statutory minimum damages under Civil Code section 52 amounting to $4,000 for each blind Californian who has allegedly been unable to access Target's website, not because Target committed some willful, affirmative misconduct that was intentional and morally offensive, but because Target allegedly failed to modify its website after NFB told Target it should. (Am. Compl., ¶ 44.) In this case, NFB's Unruh Act claim could not be saved by a further amendment to the complaint. By the very nature of the Internet, Target's website is available to all consumers who log onto www.target.com, regardless of their race, sex, sexual orientation, or disability. Thus, as a matter of law, Target's website falls within Civil Code section 51(c), which "explicitly exempts standards that are `applicable alike to persons of every sex, color, race, religion, ancestry, national origin, or blindness or other physical disability." Harris, 52 Cal. 3d at 1172 citing Cal. Civ. Code § 51(c). C. The Unruh Act Does Not Require Public Accommodations To Construct, Alter, Repair Or Modify Covered Facilities

Even if the Unruh Act did apply to websites, and even if NFB's complaint could somehow be construed as alleging intentional discrimination under the Unruh Act, Target still could not be held in violation of the Unruh Act because, contrary to NFB's allegations, the Unruh Act does not require Target to modify its website.

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Civil Code section 51(d) specifically provides: Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law . . . . Here, NFB alleges Target violated the Unruh Act by failing to add "Alternative text," "image maps," "prompting information," "navigation links," and keyboard enabled functions to its website. (Am. Compl., ¶¶ 30-34.) Yet NFB has cited to no "provisions of law" requiring Target to make these modifications to its website. As such, NFB's Unruh Act claim must fail. IV. NFB CANNOT STATE A CLAIM FOR RELIEF UNDER THE DISABLED PERSONS ACT California Civil Code section 54.1 provides: Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. Cal. Civ. Code § 54.1(a)(1) (emphasis added). The alleged access barriers in Target's website cannot give rise to a Disabled Persons Act violation because the Disabled Persons Act, by its terms, does not apply to websites. As the language quoted above demonstrates, the Disabled Persons Act only applies to physical places such as hospitals, airplanes, schools, hotels, and amusement parks. Target's website is not a physical place. Cf. Harris, 52 Cal. 3d at 1160 (the legal maxim nocitur a sociis (know it from its associates) should be used in construing the reach of California's access laws). Furthermore, because the Disabled Persons Act only applies to physical places, a Disabled Persons Act claim must be premised on a California building code violation. See, e.g., Marsh, 64

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Cal. App. 3d at 892 ("[w]e conclude that the operator of a business of a type enumerated in Civil Code section 54.1 is not required by the force of that section alone to modify its facilities to allow for their use by handicapped persons. That statute requires only that the operator open its doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.") (emphasis in original; superseded by statute on other grounds); Arnold v. United Artists Theatre Cir., Inc., 158 F.R.D. 439, 446 (N.D. Cal. 1994) ("The degree of `full and equal access' to places of public acco