Cohen v. City of Culver City

• Decision Date: 06 June 2014
• Docket Number: No. 13–55079.,13–55079.
• Citation: 754 F.3d 690
• Parties: William C. COHEN, an individual, Plaintiff–Appellant, v. CITY OF CULVER CITY; Exchange Club of Culver City, a California corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

754 F.3d 690

William C. COHEN, an individual, Plaintiff–Appellant,

v.CITY OF CULVER CITY; Exchange Club of Culver City, a California corporation, Defendants–Appellees.

No. 13–55079.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 2, 2013.

Filed June 6, 2014.

Doreen L. Kushner (argued), Law Office of Doreen L. Kushner, Huntington Beach, CA, for Plaintiff–Appellant.

Byron Michael Purcell (argued) and Rupert Byrdsong, Ivie, McNeill & Wyatt, Los Angeles, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. 2:12–cv–00156–RGK–PJW.

Before: DOROTHY W. NELSON, KIM McLANE WARDLAW, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

William Cohen, an elderly man suffering from dementia who requires a cane for mobility, walked through an outdoor car show on public streets while in Culver City, California, to attend his grandson's wedding. A vendor's display at the car show blocked the curb ramp that provided disabled access to the sidewalk in front of Cohen's hotel. Cohen was injured when he tripped and fell as he tried to walk around the display and step up on to the sidewalk.

Cohen filed this action against the City of Culver City (“the City”) and the Exchange Club of Culver City (“the ECCC”), alleging violations of the federal Americans with Disabilities Act (ADA) of 1990 and various California statutes. ¹ He appeals the district court's grant of summary judgment in favor of the defendants. We must decide whether the City may have violated its obligations under Title II of the ADA by allowing the vendor's display to completely block the curb ramp, impeding disabled access to the public sidewalk, and by failing to post signs identifying alternative disabled access routes. We conclude that a genuine dispute of material fact exists as to whether the City denied Cohen access to the sidewalk by reason of his disability, and, accordingly, we reverse in part and remand.

I.

Cohen, a Florida resident, visited Culver City in May 2011 to attend his grandson's wedding. He stayed at the Culver Hotel in downtown Culver City. Four years earlier, Cohen had been diagnosed with moderate dementia. He subsequently suffered from declining cognitive function and poor balance. In February 2011, Cohen was reevaluated by his physician. He exhibited increased difficulty with his balance and lower than expected learning and memory scores.

On May 7, 2011, the City and the ECCC sponsored their annual car show on the public streets and sidewalks of downtown, including those immediately adjacent to the Culver Hotel. The streets, closed to automobile traffic for exclusive use by pedestrians, were lined with vintage automobiles and vendors' displays. Drivelines, a participating vendor, positioned its display so as to straddle the pedestrian crosswalk and sidewalk between the car show and the main entrance to the Culver Hotel. The display, which included a golf cart, several tables, and a large canopy, also completely blocked the disabled access curb ramp connecting the sidewalk to the street at that point.

On the day of his grandson's wedding, Cohen attended the car show. On his way back to the hotel, Cohen saw that the curb ramp was blocked, so he tried to walk around the vendor's display and step up over the curb on to the sidewalk. Instead he slipped and fell face first on to the sidewalk, sustaining facial abrasions and contusions. Other curb ramps connected the street to the sidewalk about twenty yards and ninety yards away in either direction, but there were no signs that might point Cohen in those directions, and the City, which deposed Cohen, adduced no evidence that he was aware of the other ramps. Drawing all reasonable inferences in Cohen's favor, he reasonably believed he had no choice but to negotiate the curb ramp.

Cohen asserts claims for damages against the City and the ECCC under Title II of the federal ADA and three California statutes: the Disabled Persons Act (DPA), the Unruh Civil Rights Act, and California Government Code sections 830 and 835.² The district court granted summary judgment in favor of the defendants on all claims.³

We address only Cohen's claims against the City under the ADA, the DPA, and the Unruh Act. The district court ruled that a genuine dispute of material fact exists as to whether Cohen is disabled under the ADA. It found, however, that Cohen could have accessed the public sidewalk by traveling a “marginally longer route” to another disabled access curb ramp twenty yards down the street. On this basis, the district court held that the City did not deny Cohen access to the public sidewalk under Title II of the ADA. Because Cohen's DPA and Unruh Act claims are based on his ADA claim, the district court granted summary judgment for the City on all three.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to the non-moving party. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir.2011). We must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Del. Valley Surgical Supply Inc. v. Johnson & Johnson, 523 F.3d 1116, 1119 (9th Cir.2008).

III.

A.

The ADA aims to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Congress enacted the statute on the premise that discrimination against the disabled is “most often the product, not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect.” Alexander v. Choate, 469 U.S. 287, 295, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Therefore, the ADA proscribes not only “obviously exclusionary conduct,” but also “more subtle forms of discrimination—such as difficult-to-navigate restrooms and hard-to-open doors—that interfere with disabled individuals' full and equal enjoyment” of public places and accommodations. Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 945 (9th Cir.2011) (en banc) (internal quotation marks omitted).

Title II is the portion of the ADA that applies to state and local governments. See42 U.S.C. § 12131. It provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132. Title II emphasizes “program access,” meaning that a public entity's programs and services, viewed in their entirety, must be equally accessible to disabled persons.⁴See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1215–16, 1222 (9th Cir.2008). A public entity must make reasonable modifications to avoid discrimination against persons with disabilities, unless it can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity it provides. 28 C.F.R. § 35.130(b)(7); McGary v. City of Portland, 386 F.3d 1259, 1265–66 (9th Cir.2004).

We construe the language of the ADA broadly to advance its remedial purpose. Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th Cir.2002). We have explained that the broad language of Title II brings within its scope “anything a public entity does.” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001) (internal quotation marks omitted). A city sidewalk is therefore a “service, program, or activity” of a public entity within the meaning of Title II. Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002).⁵

To prevail under Title II, the plaintiff must show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) this exclusion, denial, or discrimination was by reason of his disability. Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997). Title II authorizes private suits for money damages. ⁶42 U.S.C. § 12133; see Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).

As authorized by the statute, 42 U.S.C. § 12134, the United States Attorney General has promulgated a vast body of regulations implementing Title II. The regulations flesh out public entities' statutory obligations with more specificity, but a public entity may violate the ADA even if no regulation expressly proscribes its particular conduct. See, e.g., Barden, 292 F.3d at 1076–78 (applying Title II to sidewalks even though no implementing regulations specifically addressed sidewalks). We give Department of Justice (DOJ) regulations construing Title II “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065 (9th Cir.2010) (internal quotation marks omitted).

We rely heavily on two of these regulations in reviewing the district court's decision. 28 C.F.R. § 35.150 governs existing facilities. It requires the City to operate each program, service, or activity in a manner that, viewed in its entirety, is readily accessible to and usable by persons with disabilities. 28 C.F.R. § 35.150(a). To comply with this mandate, the City may make structural changes to its existing facilities, but it need not do so if other methods, such as relocating services to different buildings, would be effective. Id. § 35.150(b)(1). The City must prioritize methods of compliance that enable it to provide services to disabled persons in “the most integrated setting appropriate.” Id. If the City chooses to comply by modifying its existing facilities, additional requirements follow.

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