The Unruh Civil Rights Act (UCRA) became law in California in 1959. Along with the federal Americans with Disabilities Act (ADA), it prohibits access discrimination, prohibits discriminatory conduct by businesses against people with disabilities, and gives them the same rights and opportunities as those who are lucky enough to participate in everyday life without additional help. Unfortunately, these laws can be abused, and one blind woman, who tried to sue a hotel for damages, was told by a California appellate court that she could not collect unless she actually intended to use the services of the company she sued.

Writing for a three-judge panel in Division Two of the Court of Appeal of the State of California’s Fourth Appellate District, Associate Justice Art W. McKinster affirmed the opinion of Judge David Cohn of the Superior Court of San Bernardino County in Cheryl Thurston v. Omni Hotel Management Company on September 23.

Plaintiff/Appellant Thurston is a blind woman who needs to use a special screen-reader device to access the Internet. When she tried to use the website operated by Omni Hotels, she claims that she found it “not fully accessible” to the visually impaired due to several non-specified “access barriers.” She listed a few examples of what these could be -- lack of alternative text, empty links, or redundant links—but failed to specify which were actually absent on the hotel’s website.

In November 2016, she filed an action against the hotel chain for what she called an “intentional violation” of the UCRA and the ADA. The case went to trial and the jury denied her claim because they found she had no intent to make a hotel reservation. Her appeal was based on a jury instruction that said intent was required in order to prevail. The Appellate Court agreed that it was.

Thurston’s complaint stemmed from several unsuccessful attempts to make a reservation between May 2015 and June 2019. She said she searched websites in Palm Springs and San Diego and that she was blocked from using the hotel’s calendar or reservation functions. Importantly, however, she admitted at trial that she never tried to make an actual reservation by using one of the many alternative websites that would facilitate a reservation. These include Orbitz, Hotels.com and other providers of reservation services. She never even tried to contact Omni by phone.

At trial, Thurston explained that she never booked a hotel herself, because “her husband make(s) those arrangements and she hesitated to use alternative booking websites because she “heard you can have problems with them.”

Expert witnesses were not able to access Thurston’s computer because her husband had destroyed its hard drive in 2018. They provided a number of reasons to explain the plaintiff’s difficulties, including browser problems, out-of-date screen readers, coding issues or the user’s “proficiency with a screen reader.” They said that plaintiff’s technical difficulties, rather than Omni’s website, might have caused her problems.

During the trial, Omni admitted that it had updated its website several times and that some of those improvements were incompatible with older screen readers. However, they explained that alternative ways of making reservations, such as by phone or email, were always provided.

The attorneys for both sides disagreed on jury instructions. Plaintiff proposed two special jury instructions, one focusing on an ADA violation and the other on intentional discrimination. For the first, she had to prove that Omni’s website “contains barriers that prevent full and equal access by Ms. Thurston.., and that she personally encountered these accessibility barriers precluding her full and equal enjoyment of the website.”

For the second, Thurston needed to prove that Omni denied her “full and equal accommodations, advantages, facilities, privileges and services…that a substantial motivating reason for Omni Hotels’ conduct was its perception of Ms. Thurston’s disability and that Ms. Thurston was discriminated against based thereon…”

Omni proposed a single special jury instruction that required the jury to find that Thurston actually intended to use Omni’s reservation services. Plaintiff, however, insisted that neither the UCRA nor ADA required that plaintiff “must be a customer, client, or ‘bona fide patron’ of th[at] public accommodation.”

The trial court gave a “hybrid instruction” that explained that evidence had to show that Thurston attempted to use the website to make a reservation or to learn about prices and accommodations for the purpose of making a reservation. In closing argument plaintiff’s attorneys said she was using the website because what she was “hoping” to accomplish was to look at making a reservation at an Omni.

Defense attorneys said she never intended to book a hotel and her lawsuit was actually “part of [a] shakedown strategy to get money.” An article in Metropolitan News-Enterprise provided additional information about Thurston being a serial plaintiff. She had filed “at least six” additional lawsuits against such establishments as an online sales company in Georgia, a California restaurant, and Fiat automobile. The newspaper said that “Thurston is one of several handicapped persons” in one law firm’s “stable of plaintiffs.” These activities were not mentioned in McKister’s opinion.

Violation of the Unruh Act gives rise to a variety of remedies, including actual or even treble damages, and a minimum statutory award of $4,000 for each violation. The jury rejected Thurston’s claim and ruled in favor of Omni. Metropolitan News-Enterprise explained that Thurston sued in state rather than federal court because the federal ADA, unlike California’s UCRA, does not provide for money damages.

In his opinion, Justice McKinster went into detail about the importance and intent of the Unruh Civil Rights Act that seeks to ban discriminatory access practices by California entities. He said the law must be “liberally construed” in order to carry out its purpose. He also explained that the act requires a “relationship” between the “customer and proprietor” and that standing at the threshold of a case is limited to persons with “a concrete and actual interest that is not merely hypothetical or conjectural.” Once standing is given, however, plaintiffs must then present “sufficient evidence to overcome the online defendant’s argument that he or she ‘did not actually possess a bona fide intent to sign up for or use its services.”

McKister said that precedent requires Thurston to show “bona fide intent” to book a room and affirmed the judgment of the lower court while awarding costs of the appeal to Omni. No error was found in the trial court’s jury instructions.