Kirola v. City of S.F., Case No: C 07-3685 SBA

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtSAUNDRA BROWN ARMSTRONG United States District Judge
Docket NumberCase No: C 07-3685 SBA
PartiesIVANA KIROLA, et al., Plaintiffs, v. THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
Decision Date26 November 2014

IVANA KIROLA, et al., Plaintiffs,

Case No: C 07-3685 SBA


November 26, 2014




Plaintiff Ivana Kirola ("Kirola" or "Plaintiff"), a mobility-impaired individual, brings the instant disability access class action on behalf of herself and similarly-situated individuals against Defendants City and County of San Francisco, the Mayor of San Francisco, and members of the Board of Supervisors (collectively "the City"). She alleges that the City discriminates against mobility-impaired persons by failing to eliminate all access barriers from or otherwise ensure accessibility to the City's libraries, swimming pools, parks, and public rights-of-way (i.e., the City's network of sidewalks, curb ramps, crosswalks, and other outdoor pedestrian walkways). She also complains that the City's policies and practices for ensuring access, removing access barriers, and handling public access complaints are deficient.

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The operative pleading is the First Amended Complaint ("FAC"), which alleges six claims for relief based on: (1) Title II of the Americans with Disabilities Act of 1990 ("Title II of the ADA" or "Title II"), 42 U.S.C. § 12131-12165; (2) the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794; (3) the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. § 1983; (4) the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code §§ 51; (5) the California Disabled Persons Act ("CDPA"), id. § 54.1; and (6) California Government Code §§ 11135. Dkt. 294. Plaintiff seeks declaratory and injunctive relief only. The Court has subject matter jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)-(4), and supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367. Venue is proper in the Northern District of California, as all Defendants reside and the acts or omissions complained of occurred in this District. 28 U.S.C. § 1391(b)(1), (2).

The Court previously granted class certification and appointed Kirola as the sole class representative. Dkt. 285. Thereafter, the parties presented their respective cases to the Court during a court trial. Subsequent to trial, the parties submitted post-trial briefing and proposed findings of fact and conclusions of law. Dkt. 614, 616, 617, 618, 632, 634, 635, 636, 646, 662, 681, 683. Separately, the City filed a Post-Trial Motion for Judgment, focusing primarily on whether Kirola has constitutional standing under Article III to pursue any claims on behalf of herself or the class. Dkt. 666, 672, 675. Alternatively, the City contends that even if Kirola has standing, she has failed to demonstrate the substantive merit of any of her claims.

As will be set forth below in the findings of fact and conclusions of law, the Court is persuaded by the City's arguments, and, based on the evidence and testimony presented at trial, finds that Kirola lacks constitutional standing to pursue any claims on behalf of the class. Alternatively, even if Kirola had standing, she has failed to carry her burden of demonstrating, by a preponderance of the evidence, that the City has violated the ADA or any of the other federal and state laws and regulations alleged in the FAC.

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"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The ADA is comprised of five titles: Employment (Title I); Public Services (Title II); Public Accommodations and Services Operated by Private Entities (Title III); Telecommunications (Title IV); and Miscellaneous Provisions (Title V). Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). The purpose of the ADA's various provisions is "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2).

This action is premised on Title II of the ADA, which became effective on January 26, 1992, and applies to public entities. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir. 1998) (citing §§ 108, 205, Pub.L. No. 101-336). To demonstrate a prima facie case under Section 202 of Title II of the ADA, a plaintiff must show that:

(1) she is an individual with a disability; (2) she is otherwise qualified to participate in or receive the benefit of a public entity's services, programs or activities; (3) she was either excluded from participation in or denied the benefits of the public entity's services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of her disability.

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) (discussing requirements of a claim brought under 42 U.S.C. § 12132). "This prohibition against discrimination is universally understood as a requirement to provide 'meaningful access.'" Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009). "An individual is excluded from participation in or denied the benefits of a public program if 'a public entity's facilities are inaccessible to or unusable by individuals with disabilities.'" Daubert v. Lindsay Unified School Dist., 760 F.3d 982, 987 (9th Cir. 2014) (quoting 28 C.F.R. § 35.149).

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ADA regulations recognize that "in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services." Tennessee v. Lane, 541 U.S. 509, 532 (2004). Accordingly, the regulations promulgated by the United States Attorney General to implement the requirements of Title II differentiate between structures built before the effective date of the ADA and those built or altered after.

Existing facilities constructed prior to January 26, 1992, are subject to 28 C.F.R. § 35.150, which requires only "program access." 760 F.3d at 988. Program access does not require that each and every facility is equally accessible to disabled persons. Cohen v. City of Culver, 754 F.3d 690, 694-95 & n.4 (9th Cir. 2014). Rather, it simply requires a public entity to "operate each service, program, and activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a) (emphasis added).1 "Title II's emphasis on 'program accessibility' rather than 'facilities accessibility' was intended to ensure broad access to public services, while, at the same time, providing public entities with the flexibility to choose how best to make access available." Daubert, 760 F.3d at 986 (internal quotations and citation omitted). Public entities are directed to develop a "transition plan" to "achieve program accessibility" by "setting forth the steps necessary to complete such changes." 28 C.F.R. § 35.150(d)(1); Cohen, 754 F.3d at 696.

"New construction and alterations" commenced after January 26, 1992, are subject to more exacting requirements. Specifically, under 28 C.F.R. § 35.151, "[e]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily

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accessible to and usable by individuals with disabilities, . . ." 28 C.F.R. § 35.151(a)(1) (emphasis added). To be "readily accessible," the facility "must be constructed in conformance with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), 28 C.F.R. Pt. 36, App. A, or with the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. Pt. 101-19.6, App. A." Daubert, 760 F.3d at 986 (emphasis added, citation omitted). "The ADAAG is a comprehensive set of structural guidelines that articulates detailed design requirements to accommodate persons with disabilities." Id. "[O]nly facilities that were constructed or altered after January 26, 1992, are subject to the ADAAG's requirements." Id. at 987.


The original complaint named three plaintiffs: Kirola; Elizabeth Elftman ("Elftman"); and Michael Kwok ("Kwok") (collectively, "Plaintiffs"). Dkt. 1. Three years later on February 9, 2010, Plaintiffs moved for leave to file an amended complaint, requesting, inter alia, to dismiss Kwok as a named plaintiff and to substitute Linda Pillay ("Pillay") in his stead. Dkt. 121, 3:6-8. Plaintiffs also sought to refine their class allegations and claims. Id., 3:9-16.

On March 2, 2010—before the Court ruled on their motion for leave to amend—Plaintiffs filed a motion for class certification under Federal Rule of Civil Procedure 23(a) and (b)(2), which sought to appoint both Kirola and Pillay as class representatives, even though Pillay was not a party to the action. Dkt. 187. Plaintiffs did not seek to have Elftman appointed as a class representative. Id.; Dkt. 1; Dkt. 121, Exh. A.

On April 12, 2010, the Court granted in part and denied in part the motion for leave to amend. Dkt. 238. The Court allowed Plaintiffs to narrow the class definition alleged in the initial complaint, dismiss Kwok as a named plaintiff, and clarify their allegations concerning the City's alleged failure to comply with California Government Code § 11135. The Court, however, denied their request to join Pillay, finding that Plaintiffs had failed to establish good cause to add her as a party-plaintiff. Id. Consistent with the Court's ruling, Plaintiffs filed their FAC on June 24, 2010. Dkt. 238, 294.

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During the interim, on June 7, 2010,...

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