Gomez v. Wunderlich

Background

Andres Gomez sued Therese Ann Wunderlich, Christopher James Wunderlich, and Gianna Marie Giovannoni under Title III of the Americans with Disabilities Act and California’s Unruh Civil Rights Act. Gomez alleged that the defendants owned or operated Napawunder and its website, napawunder.com. He alleged that he is legally blind and uses screen-reader software, but could not successfully navigate the website because its images lacked readable text equivalents, its form elements lacked functional text, and its color contrast was too low.

Gomez said he visited the website in March and July 2021 to obtain information about houses for sale in Northern California. He alleged that the website’s inaccessibility denied him full and equal access to the defendants’ services and deterred him from returning. He also alleged that he would return to the website after being told it was accessible.

Motion and Legal Standard

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. They argued that Gomez lacked standing to bring the ADA claim and that the Unruh Act claim therefore also had to be dismissed.

To establish standing, a plaintiff must show an injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable court decision would remedy the injury. For an inaccessible website, Ninth Circuit law requires a sufficient “nexus,” or connection, between the website and a physical place of public accommodation. A plaintiff may show standing by alleging deterrence from using the physical facility or an injury combined with an intent to return.

Court’s Analysis

The court held that Gomez’s complaint did not plausibly allege the required connection between napawunder.com and a physical place of public accommodation. Although the complaint said that Napawunder operated services from a physical location in California, it did not describe that location or allege that the defendants operated a physical place, such as a real-estate office, that customers could visit. It also did not allege that the private homes listed for sale on the website were public accommodations under the ADA.

The court further explained that Gomez alleged an intent to obtain information about homes for sale, but did not allege that he intended to visit a particular physical location or that the website prevented him from doing so. Gomez’s later declaration confirmed that he had no present intention to visit Napawunder’s physical office and wanted to access only the real-estate listing information on the website.

The court rejected Gomez’s argument that his status as an ADA tester automatically gave him standing. The court explained that tester status does not eliminate the ordinary standing requirements. A tester must still allege an intent to return to, or deterrence from using, the defendant’s facility. Because Gomez did not allege that the defendants operated a physical location he intended to visit, his tester status alone was insufficient.

Disposition

The court granted the defendants’ motion to dismiss. It dismissed Gomez’s ADA claim for lack of subject-matter jurisdiction and dismissed the related Unruh Act claim because the federal claim had been dismissed. The court noted that the same result would also be appropriate under Rule 12(b)(6), which concerns failure to state a legally sufficient claim.

Because Gomez had declared that he did not intend to visit a physical office or use services other than those offered online, the court said it was unclear whether the standing problem could be cured. Nevertheless, the court gave him until July 5, 2022, to amend his complaint. The order states that if he did not file an amended complaint by that date, the dismissal would be with prejudice and judgment would be entered.