B. PRELIMINARY ISSUES
14. Before reaching the question of whether Kirola has Article III standing, the Court addresses four preliminary contentions concerning the constellation of evidence which may be considered in analyzing her standing: (1) whether standing may be established by evidence that was not presented at trial; (2) whether Kirola's experience with barriers in her neighborhood is sufficient to confer standing to sue for barriers she did not encounter; (3) whether standing may be established based on the experiences of class members; and (4) whether Kirola has standing to challenge the City's alleged "overarching policy" of discrimination.
1. Scope of the Evidence
15. The City contends that Kirola's standing is to be evaluated based solely on the evidence presented at trial; namely, her in-court testimony. In contrast, Kirola argues that the Court is not limited to the trial record, and that the Court should consider evidence obtained or produced during discovery—irrespective of whether such evidence was previously presented to the Court. For the reasons that follow, the Court finds that Kirola's standing is to be determined based on the trial record.
16. Standing is a core component of Article III's case or controversy requirement, and as such, it must be established "through all stages of federal proceedings." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. For instance, general factual allegations of injury resulting from a defendant's conduct may suffice at the pleading stage; but in response to a motion for summary judgment, a plaintiff cannot rely on "'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' . . . which for purposes of the summary judgment motion will be taken to be true." Id. (citing Fed. R. Civ. P. 56(e)). "At the final stage, those facts (if controverted) must be 'supported adequately by the evidence adduced at trial.'" Id. (citing Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)).
17. An assessment of standing based on the trial record is both permissible and appropriate, particularly where, as here, the plaintiff's standing is disputed. See Maine People's Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006) ("When, as now, standing is reviewed after trial, the facts establishing standing 'must be supported adequately by the evidence adduced at trial.'") (citing Lujan, 504 U.S. at 561); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) ("'[W]here standing is challenged as a factual matter, the plaintiff bears the burden of supporting the allegations necessary for standing with "competent proof." . . . "Competent proof" requires a showing by a preponderance of the evidence that standing exists.'") (citations omitted); Biopolymer Eng'g, Inc. v. Immudyne, Inc., No. 05-2972 (JNE/JJG), 2009 WL 2916847, *3 (D. Minn. Sept. 4, 2009) ("Plaintiffs bear the burden of establishing their standing. The Court will determine whether they have satisfied that burden based on the evidence received at trial."); see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) ("The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.").
18. Here, Kirola has long been on notice that the City disputes whether she has standing and that such determination would be adjudicated at trial. Although the City chose not to pursue the standing issue in connection with Plaintiff's class certification motion, the Court's order on that motion expressly stated that Kirola's standing "[would] be made following trial based upon the evidence presented and the relief requested." Dkt. 285, 3:23-24. Despite this awareness, Kirola offered only minimal testimony at trial to establish that she suffered an injury in fact. Specifically, Class Counsel only elicited testimony from Kirola regarding: (1) three stretches of sidewalk containing "bumps"; (2) one corner that lacked curb ramps; (3) one corner that provided only a single curb ramp; (4) errant step stools at three of the City's libraries; (5) three inaccessible pools; and (6) steep paths at one park. RT 1384:13-21, 1382:4-18, 1387:2-4, 1385:3-1386:8, 1386:15-19, 1388:5-7.
19. Apparently recognizing the insufficiency of her trial testimony, Kirola now argues in her post-trial briefing that the Court must also consider evidence that was not presented at trial. Dkt. 672, 13:22-14:3, 17:16-18:4, 18:15-26, 19:12-25. More specifically, Kirola points to certain portions of her deposition testimony and the declaration she submitted in support of her motion for class certification to establish that she encountered barriers in addition to those to which she testified at trial. Kirola's post hoc effort to supplement the trial record is unavailing. The Supreme Court has made it clear that when standing is disputed at "the final stage" of a case, standing must be established by "evidence adduced at trial ." See Lujan, 504 U.S. at 561; Maine People's Alliance, 471 F.3d at 283; Perry, 186 F.3d at 829.
20. Limiting the evidence of Kirola's standing to the trial record is necessary and appropriate as a matter of due process. Both Kirola's deposition testimony and her declaration constitute inadmissible hearsay. Fed. R. Evid. 801(c); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779 (9th Cir. 2002) ("Deposition testimony, irrespective of its contents, is ordinarily hearsay when submitted at trial"); but see Fed. R. Civ. P. 32(a)(4) (providing an exception to the hearsay rule for deposition testimony where the witness is unavailable). Namely, both documents consist of out-of-court statements offered to establish the truth of the matter asserted—to wit, that Kirola did, in fact, encounter access barriers as described and consequently suffered an injury in fact. Kirola has not shown that these statements are subject to any hearsay exception, and otherwise provides no authority suggesting that it would be fair or appropriate for the Court to consider her out-of-court statements, which were not subject to cross-examination by the City at trial.12
21. In sum, the Court finds that Kirola's standing must be evaluated based on the trial record. Consequently, Kirola cannot rely on her deposition testimony or statements presented in a declaration previously filed in support of her class certification motion to bolster the trial record for the purpose of establishing her standing. See Lujan, 504 U.S. at 561; cf. Simon v. Shearson Lehman Bros., 895 F.2d 1304, 1323 (11th Cir. 1990) (when a party chooses not to present evidence at trial for strategic or tactical reasons, it is not an abuse of discretion to deny the party's request to re-open the record before entry of judgment).
12. The vast majority of the deposition testimony Kirola now wishes the Court to consider was never previously presented to the Court. Although the first volume of Kirola's deposition was submitted to the Court in connection with the motion for class certification, the second volume of her deposition, as Class Counsel now admits, was never previously provided to the Court. Dkt. 673, 1:13-17; see also Dkt. 189-2, Exh. 15. All but one alleged access barrier which Kirola now wishes the Court to consider was discussed in the second volume. Dkt. 673.
2. Neighborhood Access
22. Kirola avers that she suffered an actual injury as a result of encountering access barriers in and around her neighborhood. While recognizing that accessible programs, services and facilities may be available elsewhere in the City, Kirola contends that the City is obligated to ensure that its programs and services are accessible on a neighborhood basis. E.g., Dkt. 604, 20:8-9, 25:2-4. By extension, Kirola contends that she has standing to sue for access barriers in other areas of San Francisco that she did not actually encounter.
23. As support for her position, Kirola relies principally on Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 943 (9th Cir. 2011) (en banc) ("Chapman I"). In that case, a mobility-impaired individual brought an individual Title III public accommodations action against a retailer, Pier 1, claiming that he encountered barriers at a particular location of a national retailer that impeded his access. The court held that when a plaintiff "has suffered an injury in fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability," he has standing to sue for injunctive relief, "either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility." Chapman I, 631 F.3d at 944. Additionally, the court held that "an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability." Id.
24. Kirola argues that like the plaintiff in Chapman I, it is unnecessary for purposes of standing that she actually encountered the barriers which she seeks to address, and that standing may be established based solely on her experience with facilities in her neighborhood. Chapman I, however, is distinguishable in at least two critical respects. First, Chapman I was an individual lawsuit and thus did not address the standards for evaluating standing in a class action. Second, the claims in Chapman I were premised on Title III of the ADA, as opposed to Title II, which does not require that each individual site at which a public service is offered be accessible, so long as the program, activity or service, "when viewed in its entirety," is readily accessible. See 28 C.F.R. § 35.150(a) & (a)(1) ("This paragraph does not . . . [n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities."). "In contrast, Title III of the ADA, which governs places of public accommodation, imposes more stringent requirements aimed at ensuring that every facility is equally accessible to disabled persons." Cohen, 754 F.3d at 695 n.4 (citing Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004)) (emphasis added); see also Cary LaCheen, Using Title II of the Americans with Disability Act on Behalf of Clients in TANF Programs, 8 GEO.J. ON POVERTY L. & POL'Y 1, 119-20 (2001) ("Given . . . the fact that the unit of analysis for determining accessibility is different under Title II and Title III, Title III will often be a more stringent access standard for a particular program site than Title II.").13
25. Because the proper unit of analysis under Title II of the ADA is programs and services —not the individual sites at which they are offered—it is possible for a program, when viewed in its entirety, to be in compliance with the ADA, even if some aspects of facilities where the programs are offered are inaccessible. E.g., Daubert, 760 F.3d at 987-988 (holding that the mere fact that some of the bleachers in the football stadium were not accessible did not result in the denial of program access to the school district's football program); Bird v. Lewis & Clark College, 303 F.3d 1015, 1022 (9th Cir. 2002) ("Accessibility is not location-dependent; rather, as we have explained, the essential inquiry is whether the program overall is accessible"). Accordingly, a Title II plaintiff cannot establish standing by merely pointing to a few isolated access barriers in her neighborhood. Rather, to establish standing, a Title II plaintiff must show that the barriers she encountered amounted to a wholesale denial of "meaningful access" to the challenged program, service, or activity, when viewed in its entirety. See Armstrong, 275 F.3d at 861 (citing Alexander v. Choate, 469 U.S. 287, 295 (1985)).
26. The two out-of-circuit district court cases cited by Kirola are likewise unavailling. See Kerrigan v. Philadelphia Bd. of Elections, No. 07-687, 2008 WL 3562521, *17-18 (E.D. Pa. 2008); Westchester Disabled on the Move, Inc. v. Cnty. of Westchester, 346 F. Supp. 2d 473, 478 (S.D.N.Y. 2004). Both of those cases involved the provision of accessible polling places on a neighborhood basis, and presented issues including the threat of voter disenfranchisement and the fact that registered voters are specifically assigned to polling places near their registered addresses so as to encourage and facilitate voting. See, e.g., Kerrigan, 2008 WL 3562521, *1 (noting that the Philadelphia Board of Elections and the Commissioners of the City of Philadelphia "assign each registered voter to a specific division near his or her home" and estimating there to be between 1,000 and 1,200 polling places in the City of Philadelphia). The issues relating to the location of polling places and whether voters have access to a public entity's "program of voting" are separate and distinct from whether disabled persons have program access to the City's facilities and public right-of-way. Accordingly, the Court finds these cases to be inapposite.
27. In sum, the Court finds no merit to Kirola's contention that she need only establish that she encountered barriers within her neighborhood in order to have standing to seek injunctive relief with respect to the City's programs, services and activities at issue. She must instead prove that she was denied access to the foregoing in their entirety.14
13. In addition, unlike Title III, ADA Title II regulations also allow public entities to utilize a variety of methods to render existing facilities "readily accessible," including the "reassignment of services to accessible buildings" and the "delivery of services at alternate accessible sites," among others. 28 C.F.R. § 35.150(b); see also Tenn. v. Lane, 541 U.S. 509, 511 (2004) ("Title II does not require States to employ any and all means to make . . . services accessible or to compromise essential eligibility criteria for public programs. It requires only 'reasonable modifications' that would not fundamentally alter the nature of the service provided, and only when the individual seeking modifications is otherwise eligible for the service.").
14. Furthermore, as set forth above, the Court finds that the testimony proffered by Kirola's experts in support of Kirola's neighborhood theory lacks credibility. Not only do such experts' conclusions conflict with the law, they are unsupported by any discussion of professional or industry understandings of Title II's program access requirements.
3. Testimony of Class Members
28. Kirola argues that she may satisfy her burden of demonstrating standing based on the experiences of persons other than herself; to wit, class members. Dkt. 672, 13:22-14:3. This contention also lacks merit. "[I]n class actions, the named representatives must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Pence v. Andrus, 586 F.2d 733, 736-37 (9th Cir. 1978) (internal citations omitted); see also Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972) (holding that "the 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured."). As such, "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea, 414 U.S. at 494; Cornett v. Donovan, 51 F.3d 894, 897 n.2*6767(9th Cir. 1995) ("if the representative parties do not have standing, the class does not have standing.").
29. Kirola cites Armstrong for the proposition that the experiences of other class members may be considered in assessing whether she has standing. Dkt. 672, 13:28. In Armstrong, a class of disabled prisoners and parolees brought a class action alleging that policies and practices related to parole and parole revocation hearings violated the ADA. 275 F.3d at 854-55. The Ninth Circuit held that when prospective injunctive relief is sought, the plaintiff must show not only that he suffered an actual injury, but also that he is "realistically threatened" with a repetition of the violation which led to that injury. Id. at 861-62. A likelihood of recurrence may be shown where the injury stems from a written policy or the harm is part of a pattern of officially sanctioned conduct. Id. at 861. In discussing the latter theory of recurrence, the court explained that "[w]hen a named plaintiff asserts injuries that have been inflicted upon a class of plaintiffs, [the court] may consider those injuries in the context of the harm asserted by the class as a whole, to determine whether a credible threat that the named plaintiff's injury will recur has been established." Id.
30. Kirola's analysis of Armstrong mixes apples with oranges. Armstrong discusses two separate components to standing: First, the named plaintiff's actual injury ; and second, the realistic threat of repetition, i.e., whether the plaintiff's injury is likely to recur, which applies where injunctive relief is sought. Id. at 860-61. The court found that in connection with the latter, injuries suffered by class members may be pertinent. Id. at 861. Significantly, nowhere in its opinion did the Armstrong court state that the threshold inquiry of whether the named plaintiff suffered an injury in fact may be analyzed based on evidence of harm sustained by the class. Armstrong thus provides no support for Kirola's claim that the Court must consider the experiences of class members in determining whether the named plaintiff suffered an actual injury. The Court therefore declines to consider the testimony of other class members in assessing whether Kirola satisfied her burden of establishing that she "personally" has been injured as a result of the policies and practices at issue in this case. See Pence, 586 F.2d at 736-37 (holding that a named class representative's standing must be based on the injury he sustained, as opposed to those suffered by class members).
4. "Overarching Policy"
38. Finally, Kirola argues that she need not demonstrate her standing to challenge each of the eleven policies and procedures she identified in post-trial briefing. Rather, Kirola now asserts that the City has an "overarching policy of leaving disability access barriers in place," and that she has standing to challenge this "official" policy. Dkt. 672, 1:16-28, 5:6-20:4, 25:18-19. She denies that this is a newly-asserted theory of liability, and claims that the Court characterized the case in this manner in its order granting her motion for class certification. Dkt. 681, 2:24-3:4.
39. As an initial matter, Kirola's contention directly contradicts her prior representation to the Court that she is specifically challenging the eleven policies and practices identified in her prior post-trial briefing. Dkt. 662, 13:12-14:17. That aside, Kirola's "overarching policy" argument makes no sense. The mere fact that an access barrier is left "in place" does not automatically demonstrate a violation of Title II of the ADA. Title II emphasizes "program access," which entails reviewing the program or service in its entirety, as opposed to whether every element of a facility through which a program or service is presented is fully accessible. See Daubert, 760 F.3d at 986. Consequently, a barrier may be left in place without necessarily violating Title II.
40. Kirola cites Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008), for the proposition that this Court, in determining standing, must look at the "case as a whole, rather than picking apart its various components to separate the claims for which the plaintiff will be entitled to relief from those for which he will not." Dkt. 672, 3:9-12. Arreola involved an interlocutory review of a class certification order, and as such, the court focused on the allegations in the plaintiff's complaint to determine if he had satisfied his burden to establish standing at the pleading stage. 546 F.3d at 795. Arreola is inapposite, where, as here, the issue of standing is being evaluated based on evidence presented at trial. See Lujan, 504 U.S. at 561.
41. Irrespective of whether Kirola frames her challenge as one to an "overarching" policy or to eleven specific policies and practices, Kirola lacks standing in either instance. As will be established in the sections that follow, Kirola has not shown that she has suffered an injury in fact resulting from any access barrier she testified to having encountered. Having failed to make this showing, she cannot, by extension, demonstrate any injury resulting from any allegedly impermissible policy or practice.
5. Summary
42. Kirola must demonstrate that she has standing based upon her personal experience as set forth in her trial testimony, and not upon the experiences of class members or any extra record evidence. In addition, Kirola must establish that she was personally denied meaningful access to the challenged programs, services and activities in their entirety, as opposed to specific facilities. The Court now addresses whether Kirola has met her burden of establish standing within the meaning of Article III.
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