KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

A. LEGAL OVERVIEW

1. Claims

1. Title II of the ADA 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 such entity." 42 U.S.C. § 12132. Under the ADA's implementing regulations, "no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity." 28 C.F.R. § 35.149.

2. Section 504 of the Rehabilitation Act prohibits discrimination on the basis of handicap in any program or activity receiving Federal financial assistance. 29 U.S.C. § 794. A "program" or "activity" means, in part, "all of the operations" of a state or local agency. Id. § 794(b). "There is no significant difference in the analysis of the rights and obligations created by the ADA and Rehabilitation Act." Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999); accord Armstrong v. Davis, 275 F.3d 849, 862 (9th Cir. 2001), abrogated on other grounds by Johnson v. Cal., 543 U.S. 499, 504-505 (2005).

3. Title 42, United States Code, section 1983, "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

4. The Unruh Act provides that persons with disabilities have equal access to streets, highways, public places, public conveyances, places of public accommodation, and housing. Cal. Civ. Code §§ 51, 54(a). A violation of the ADA constitutes a violation of the Unruh Act. Id. § 51(f).

5. The CDPA provides that "individuals with disabilities shall be entitled to full and equal access . . . to . . . places of public accommodation." Cal. Civ. Code § 54.1. "A violation of the right of an individual under the [ADA] also constitutes a violation [of the CDPA]." Id. § 54.1(d).

6. California Government Code § 11135 provides that no person in the State of California shall, on the basis of disability, "be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state." Cal. Gov't Code § 11135.

7. Aside from the ADA and Section 11135 claims, the parties do not specifically discuss or analyze any of the other claims, all of which rely on the City's alleged violation of the ADA. Accordingly, the Court's analysis of Kirola's ADA claim applies with equal force to the Rehabilitation Act, Unruh Act and CDPA claims.

8. The decision of whether to grant or deny permanent injunctive relief under Title II of the ADA is a matter of the district court's discretion. Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 851 (9th Cir. 2001) (affirming denial of permanent injunction where the plaintiff failed to "present facts showing a threat of immediate, irreparable harm").

2. Standing

9. The City contends that Kirola, the sole class representative, lacks standing to sue for the alleged denial of meaningful access with respect to the City's programs, services and activities, or to challenge any of the various policies which allegedly show that her injury is likely to recur. Dkt. 666. The defense of lack of subject matter jurisdiction may be raised at any time, and the court is under a continuing duty to examine its jurisdiction. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

10. "[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To satisfy the "case or controversy" requirement, a plaintiff must establish standing under Article III. Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010).

11. "[I]n order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit)." Sprint Commc'n Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273-74 (2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) (emphasis added). "This triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-104 (1998).

12. Where, as here, a plaintiff seeks only declaratory and injunctive relief, she must additionally show "a very significant possibility of future harm." Montana Shooting Sports Ass'n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013); Clapper v. Amnesty Int'l USA, — U.S. —, —, 133 S.Ct. 1138, 1147 (2013) (noting that standing may be based on threatened injury only if it is "certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.") (citations, internal quotation marks, and brackets omitted). "To have standing to assert a claim for prospective injunctive relief, a plaintiff must demonstrate 'that he is realistically threatened by a repetition of [the injury].'" Melendres v. Arpaio, 695 F.3d 990, 997 (9th Cir. 2012) (quoting City of L.A. v. Lyons, 461 U.S. 95, 109 (1983)).

13. The standing requirement applies to class representatives, who must, in addition to being a member of the class they purport to represent, establish the existence of a case or controversy. O'Shea v. Littleton, 414 U.S. 488, 494 (1974). "A plaintiff must demonstrate standing for each claim he or she seeks to press and for each form of relief sought." Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).