KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

C. ARTICLE III STANDING

43. The City challenges Kirola's standing, arguing that she has failed to demonstrate that she suffered an injury in fact or demonstrated that her injuries will be redressed by a favorable decision in this action.¹⁵ In addition, the City argues that Kirola has not established a likelihood of recurrence—an additional standing requirement in cases where prospective injunctive relief is sought.

44. The Court agrees that Kirola has failed to carry her burden of establishing standing by a preponderance of evidence with respect to the challenged programs, services and activities. See Lujan, 504 U.S. at 561; Perry, 186 F.3d at 829.

^15. Though the City mentions causation, it does not specifically address that element. Nonetheless, the Court notes that the "'fairly traceable' and 'redressability" components for standing overlap and are 'two facets of a single causation requirement.'" Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010) (citing Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)). The fairly traceable or causation requirement examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and the requested relief. Id.

1. Injury in Fact

45. To establish injury in fact under the ADA, a plaintiff must show that she has been deprived of "meaningful access" to a challenged service, program, or activity in its entirety. Armstrong, 275 F.3d at 861 (citing Choate, 469 U.S. at 295); Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir. 2014) (holding that program access requires that "the city's system of sidewalks and pedestrian walkways," when viewed in their entirety, "be 'readily accessible to and useable by individuals with disabilities.'"); 28 C.F.R. § 150(a). Whether program access is being provided "is necessarily fact specific." Pierce v. Orange Cnty., 526 F.3d 1190, 1222 (9th Cir. 2008).

46. Kirola alleges that she encountered "numerous access barriers that denied, limited or interfered with her ability to access the City's pedestrian right of way." Dkt. 672, 17:4-5. However, Kirola, who testified only briefly, offered minimal testimony at trial to establish that she suffered an injury in fact. Specifically, Kirola only briefly discussed: (1) three stretches of sidewalk containing "bumps," (2) a sidewalk where her wheelchair became stuck in a tree well; (3) one street corner that lacked curb ramps, (4) one street corner that provided only a single curb ramp, (5) errant step stools at three of the City's libraries, (6) three inaccessible pools, and (7) steep paths at one park. See RT 1384:13-21, 1382:4-18, 1387:2-4, 1385:3-1386:8, 1386:15-19, 1388:5-7.

47. Starting first with the City's system of sidewalks and pedestrian walkways, the Court finds that Kirola has failed to show that it is inaccessible and unusable in its entirety. The City's public right-of-way consists of approximately 2,000 miles of sidewalks, 27,585 street corners, and 7,200 intersections. RT 2391:23-25, 2447:6-18. Yet, Kirola only testified regarding accessibility issues she experienced with three sidewalks, a tree well, and a single street corner lacking curb ramps. RT 1381:14-21, 1384:13, 1386:22-1387:18. Even then, little, if any, testimony was offered or elicited as to the nature and extent of the uneven sidewalks from which the Court could ascertain whether the purported defect constitutes an access barrier within the purview of the ADA.¹⁶ 

48. Although Kirola testified that, on occasion, she "had to make a conscious effort to take a different route" due to uneven sidewalks or missing curb ramps, RT 1384:8-10, 1382:8-9, the probative value of such testimony is undermined by the complete lack of any facts or details regarding any alternate route that she was required to take. See Cohen, 754 F.3d at 697 ("The ADA allowed [the city of] Carlsbad to compel disabled persons to travel a 'marginally longer route' under some 'limited circumstances,' as long as its programs were still accessible as a whole. The mere fact that some city sidewalks did not have curb ramps was therefore insufficient to create a triable issue as to whether Carlsbad violated Title II.") (citing Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1341 (S.D. Cal. 1997)); ADA Title II Technical Assistance Manual, II-5.3000 Curb Ramps ("Alternative routes . . . may be acceptable under the concept of program accessibility in the limited circumstances where individuals with disabilities need only travel a marginally longer route."); c.f. Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011) (noting that standing was shown at the pleading stage where "the plaintiffs have alleged in detail how specific inaccessible sidewalks negatively affect their day-to-day lives by forcing them to take longer and more dangerous routes to their destinations.") (emphasis added).

49. With regard to the City's RecPark program, which consists of approximately 220 parks spanning 4,200 acres of park space and 400 structures (i.e., clubhouses, recreation centers, etc.), Kirola complained of accessibility issues at only one park: Alamo Square Park. RT 2264:13-17, 2302:12-16, 1385:3-16, 1394:2-4. Kirola testified only that the entrance "is steep to use" and that she was unable to enter the children's play area, ostensibly attributable to steep paths. RT 1385:3-16, 1394:2-4. The fact that Kirola was unable to access one area of the park does not establish an ADA injury. Indeed, one of her experts (Steiner) testified that "even just [access to] a small part of the park would be sufficient to provide program access." RT 717:10-21. In any event, Kirola offered no specific information regarding measurements, dimensions, or slopes of the paths at Alamo Square Park, which she admits is located on a steep hill. RT 1394:2-3. Although Kirola is not expected or permitted to offer expert testimony regarding whether the entrance and paths at Alamo Square Park are ADA-compliant, her testimony is too general to persuade the Court that she was denied meaningful access to the park, let alone meaningful access to the City's RecPark program in its entirety.

50. Equally uncompelling is Kirola's testimony regarding her experiences at Balboa Pool, Garfield Pool and Rossi Pool. She alleges that Balboa Pool is inaccessible due to its steep entrance ramp and inadequate locker rooms, and that Garfield Pool lacks sufficient clearance in the locker room and restrooms. Though Kirola has not used Rossi Pool, she was deterred from going there based on the comments of others. RT 1388:5-6, 388:7-17, 1386:12-19. The fact that Kirola may have experienced accessibility issues with these three pools is insufficient to demonstrate that she suffered an actual injury resulting from the denial of meaningful access to the City's aquatic program. None of these three pools has been designated as a fully-accessible pool, and the City does not rely on them to provide program access. DTX F16.¹⁷ In contrast, the Court is persuaded that the City's aquatic program, when viewed in its entirety, provides program access. Kirola's ability to meaningfully access the City's aquatic program is underscored by the fact that she regularly uses Hamilton and MLK Pools, which were previously renovated and designated by the City as accessible. RT 1392:17-1393:23.

51. Finally, Kirola has not shown an injury in fact resulting from the lack of program access to the City's library program. The only "barriers" she encountered were the occasionally misplaced step stools at three libraries (the Main Library and the Western Addition and Parkside Branch Libraries) which impeded her aisle access. RT 1386:1-2. However, the ADA applies to architectural barriers, not temporary or removable obstructions. See Sharp v. Island Restaurant-Carlsbad, 900 F. Supp. 2d 1114, 1126-27 (S.D. Cal. 2012) (misplaced chairs blocking the path of travel to a restroom were not architectural barriers under the ADA); see also Cal. Council of the Blind v. Cnty. of Alameda, 985 F. Supp. 2d 1229, 1240 (N.D. Cal. 2013) (noting that 28 C.F.R. § 35.133 does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs). Whether a barrier is temporary or removable presents a question of fact. See Cal. Council of the Blind, 985 F. Supp. 2d at 1240 (noting that "the duration of, frequency of, and reason for the failure of accessible voting machines to operate properly is a question of fact.").

52. Based on the record developed at trial, the Court is persuaded that the misplaced step stools encountered by Kirola are not architectural barriers. On a daily basis, the City requires its library staff to use a Daily Facility Checklist to inspect for any obstructions and to maintain the accessibility of each library facility. RT 2235:22-2237:13, 2252:10-2253:21; DTX A45. Thus, even if library staff only checked for misplaced stools once a day—which Kirola has not shown—such "barrier" would temporarily exist for no more than twenty four hours. Moreover, Kirola testified that she did not encounter misplaced stools the majority of times she used these three libraries, RT 1386:6-12, and there is no evidence that she experienced any inability or difficulty in utilizing the services at these particular libraries, or with respect to the City's library program in its entirety

53. Citing Chapman v. Pier 1 Imports, 870 F. Supp. 2d 995 (E.D. Cal. 2012) ("Chapman II"), Kirola argues that misplaced stools, in fact, may qualify as an accessibility barrier under the ADA. In Chapman II, the plaintiff brought an action against a retail store known as Pier 1 Imports ("Pier 1"), claiming, inter alia, that the store aisles were blocked by merchandise, which, in turn, impeded his access in violation of Title III of the ADA. In its summary judgment motion, Pier 1 argued that the obstructions were "only temporary," and that regulations promulgated under the Title III of ADA do not impose liability for "isolated or temporary" interruptions to accessibility. Id. (citing 28 C.F.R. § 36.211(b)).¹⁸ In addressing this argument, the court explained that a "temporary" maintenance barrier is "an object that is unavoidably placed in the aisle, but with the intention of removing it as soon as possible." Id. The court denied defendant's motion for summary judgment, finding that there was a factual dispute regarding whether the blockages were isolated or temporary, and that the plaintiff had presented evidence that the barriers were recurring and prevented him from accessing store merchandise. Id. at 1009.

54. Kirola argues that, like the merchandise in Chapman II, the stools are not merely "temporary" barriers because library staff only conduct a full inspection of facilities once per day, and therefore, the stools are not removed "as soon as possible." Chapman II is distinguishable. Whereas the merchandise in the Pier 1 store aisles was intentionally placed there by store employees, there is no evidence that the step stools were placed in the stacks as a routine matter by library staff. To the contrary, the limited testimony presented by Kirola on this issue suggests that the stools were placed in the aisle by other library patrons. In addition, unlike the plaintiff in Chapman II, Kirola has made no showing that the occasional misplaced stools interfered with her ability to access library services at a particular library, let alone precluded her access to the City's network of libraries in its entirety. 28 C.F.R. § 35.150(a).

55. In sum, the Court finds that Kirola has failed to show, by a preponderance of the evidence, that she has constitutional standing to bring any of the claims alleged in her FAC. Accordingly, she lacks standing to pursue this action individually or on behalf of the class she was appointed to represent.

^16. As an ancillary matter, Kirola complains that the City's historic curb ramp design standards in effect from 1994 to 2004 resulted in the design and installation of curb ramps that included a half-inch lip in violation of ADA regulations. Dkt. 662, 13:20-22. Although the City's current curb ramp design standards have since eliminated use of the half-inch lip, Kirola apparently takes issue with the fact that not all of the lips have been removed. Nonetheless, no evidence was adduced at trial that Kirola encountered a curb ramp having a half-inch lip, let alone experienced any difficulty navigating a half-inch lip while using a motorized wheelchair.

^17. With regard to Sava Pool, Kirola noted that the sidewalk is cracked near the facility but that the pool itself is accessible. RT 1386:22-1387:13

^18. Section 36.211 is the Title III analogue to 28 C.F.R. § 35.133, which applies in Title II cases.

2. Redressability

56. Even if Kirola had suffered an actual ADA injury, she has not shown redressability, as required under Lujan. In order to demonstrate redressability, a plaintiff must show that plaintiff "personally would benefit in a tangible way from the court's intervention." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 n.5 (1998) (citing Warth v. Seldin, 422 U.S. 490, 508 (1975)). Furthermore, any "remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established." Lewis v. Casey, 518 U.S. 343, 357 (1996).

57. Kirola seeks a broad permanent injunction relating to virtually every aspect of the City's operation and management of its facilities, programs and services. Dkt. 635. However, the nexus between Kirola's injury and the relief sought is lacking.

58. With regard to curb ramps, Kirola seeks an injunction requiring the City to, within ten years of judgment, construct an accessible curb ramp at every existing or potential curb ramp location, except for those locations where the City is able to document that a curb ramp is not required. Dkt. 632, 2:24-3:10.¹⁹ But curb ramp saturation—which is not required under the ADA—is already part of the Curb Ramp and Sidewalk Transition Plan. Although the City's curb ramp transition plan does not contain a specific deadline for completion, the City anticipates achieving curb ramp saturation within approximately twelve years. Dkt. 657, 4:12-13. There is no evidence that the marginally expedited deadline (ten vs. twelve years) proposed by Kirola would redress any supposed injury she suffered due to missing curb ramps. In fact, Kirola's sole curb ramp request (for the corner of McAllister and Fillmore) was fulfilled in less than two years and would not have been constructed any sooner under her proposed injunction. RT 1383:19-1884:8, 1391:18-1392:2. As such, Kirola's proposed remedy would not have resulted in a more expeditious response to her request.²⁰

59. Redressability also is absent with respect to Kirola's accessibility complaints pertaining to the City's sidewalks. Kirola proposes an injunction requiring the City to inspect and repair all sidewalk-related barriers along its 2,000 miles of sidewalk in 10 years, and thereafter implement a 15-year inspection cycle—rather than the current 25-year cycle under SIRP (the City's current sidewalk inspection plan). Dkt. 635, 5:1-5. She also insists that, within ninety days ofjudgment, the City identify alternative, accessible routes wherever the City contends that removal of a sidewalk barrier is unnecessary for program access. Dkt. 635, 4:6-27.

60. Underlying Kirola's proposal for a shorter inspection cycle is her failure to recognize that SIRP operates in tandem with ASAP (i.e., Accelerated Sidewalk Abatement Program). Whereas the SIRP is a "proactive" program in which the City seeks out sidewalks in need of repair, the ASAP is a "reactive" program in which the City repairs sidewalks in response to public complaints. RT 2453:18-2454:12. Accessibility complaints regarding sidewalks are given high priority and responded to immediately, and are typically resolved in ninety days. RT 2454:1-12. Here, Kirola never complained to the City about the three stretches of sidewalk she testified about. Had she done so, the trial record establishes that her complaints would likely have been addressed within a matter of months. The Court is thus unpersuaded that the remedy of requiring the repair of all sidewalks within ten years is necessary or would redress the harm allegedly caused by the three sidewalks about which Kirola testified.

61. With regard to the City's RecPark facilities and pools, Kirola seeks an injunction directing the City to: (1) conduct a survey of every pool, park and recreational facility in the City within nine months of judgment, identifying every facility containing a barrier under ADAAG; (2) prepare a program access plan within eighteen months; and (3) remove all barriers necessary to ensure program access in ten years. Dkt. 632, 7:12-28. Kirola has not established how this proposed remedy would redress any alleged injury.

62. Kirola complained about barriers at Balboa Pool, Garfield Pool and Rossi Pool. The law is clear that the City has no obligation under Title II of the ADA to ensure that each facility through which it offers its aquatics program is fully accessible. Nevertheless, at the time of trial, the City had already embarked on a barrier removal project at Garfield Pool, RT 1813:13-1814:4, and Rossi Pool and Balboa Pool have since been scheduled for barrier removal, Dkt. 658-1. As such, Kirola would not personally benefit in a tangible way from the Court's intervention, since the few barriers she encountered are already being addressed by the City on a more expeditious schedule as compared to her proposed remedy.

63. The same lack of redressability is evident in terms of Kirola's experience using City parks. The only park at which Kirola claimed to have encountered accessibility barriers was Alamo Square Park. RT 1385:5-15. Even if Kirola's vague testimony was sufficient to demonstrate that she was denied meaningful access to Alamo Square Park—which it is not—no showing has been made that her proposed remedy would correct those purported defects. In addition, a survey of Alamo Square Park to ascertain its compliance with ADAAG would not benefit Kirola because ADAAG's dimensional requirements do not apply to outdoor recreational facilities or open spaces. RT 2048:9-15; 2064:21-25.

64. Finally, with regard to the City's libraries, Kirola seeks an injunction requiring the City to: (1) complete work on both the Bayview Branch Library and the North Beach Branch Library within 2 years; and (2) rectify all alleged barriers identified by Kirola's experts within 120 days. Dkt. 632, 8:27-9:3. However, Kirola presented no evidence that she encountered any accessibility barriers at either of these libraries, or that she has ever attempted, let alone desires, to use either facility. Nor does her proposed injunction bear any relation to the injury she allegedly sustained as a result of having encountered misplaced step stools at three other libraries. As for the second aspect of the proposed remedy, i.e., to rectify barriers identified by her experts, none of them cited the presence of step stools in library aisles. As such, Kirola's proposed remedy regarding the library system would not address her alleged injury, i.e., encountering stools in the stacks at three other libraries.

65. The Court concludes that Kirola has failed to satisfy her burden of demonstrating that any of her injuries resulting from the alleged denial of meaningful access will be remedied by the relief she seeks in this action. Sprint Commc'n Co., 554 U.S. at 274-75. Thus, independent of her failure to demonstrate that she suffered an injury in fact, Kirola lacks standing based on her failure to prove redressability.

^19. Kirola asserts that she selected the ten-year time frame to allow the City to plan barrier removal in harmony with its existing ten-year capital planning process. Dkt. 672, 14:28-15:3. Trial testimony shows, however, that the City's ten-year capital plan is a mere planning tool, not a set schedule or budget, and that the City prepares a new ten-year plan each year. RT 1511:4-14, 1534:19-25.

^20. Kirola also complains that the City's Paving Guidelines inappropriately allow the City to defer curb ramp installation in connection with a street paving project for up to twenty-four months when a pre-planned project would require demolition of a newly constructed curb ramp. DTX N23 [000003]. She proposes an injunction eliminating this deferment. Dkt. 635, 5:5-20. However, Kirola acknowledges that, despite having lived in San Francisco for almost twenty years, she has "not yet encountered an inaccessible corner or curb ramp" as a result of the Paving Guidelines or shown that she is likely to do so in the future. Dkt. 672, 18:17-18. Further, no evidence was presented at trial showing that the City has actually deferred installation of a curb ramp under this policy.

3. Likelihood of Recurrence

66. Even if Kirola had satisfied the Lujan test for constitutional standing, she has failed to meet the further requirement applicable in cases where prospective injunctive relief is being sought; that is, that injury is likely to recur. "Likelihood of recurrence is established when the plaintiff shows that 'the defendant had, at the time of the injury, a written policy, and that the injury ' stems from ' that policy.'" Taylor v. Westly, 488 F.3d 1197, 1199 (9th Cir. 2007) (emphasis added, citation omitted).

67. There must be "a very significant possibility" that future harm will ensue. Nelsen v. King Cnty., 895 F.2d 1248, 1250 (9th Cir. 1990). In the absence of an immediate threat, federal courts must exercise restraint in interfering with government operations. Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 850 (9th Cir. 2001) ("This 'well-established rule' bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury." (quoting Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042-43 (9th Cir. 1999)).

68. Here, Kirola contends that her injuries are likely to recur because they arise from eleven City policies which allegedly violate the ADA. Dkt. 662, 13:15-11. Thus, to show a likelihood of recurrence, Kirola must demonstrate an injury that "stems from" each policy. See Taylor, 488 F.3d at 1199. Each policy is discussed below.

a) Curb Ramp and Sidewalk Transition Plan

70. The Curb Ramp and Sidewalk Transition Plan affirms the City's previously existing policy of achieving curb ramp saturation; that is, the practice of installing a curb ramp at every pedestrian crossing in the City. DTX G18. According to Kirola, the City's transition plan "does not comply with the three-year implementation period and the January 26, 1995 deadline established by Title II of the ADA (28 C.F.R. § 35.150(c)) for the completion of any barrier removal necessary for program access." Dkt. 662, 13:15-18.

71. Kirola has failed to demonstrate that she suffered any injury that stems from the Curb Ramp and Sidewalk Transition Plan. Program access does not require curb ramp saturation. See Cohen, 754 F.3d at 696 (holding that Title II regulations do "not require the City to build curb ramps at every corner during its transition to compliance with the ADA."). As such, the fact that Kirola encountered a missing curb ramp at one corner and bi-directional curb ramps at another is not attributable to any deficiency in the Curb Ramp and Sidewalk Transition Plan, which actually provides more access than is required by Title II. In addition, the evidence presented at trial shows that Kirola routinely and independently travels across the City, using the City's public right-of-way, public transportation systems, and paratransit service, which undermines her claim that she has been injured by the denial of program access resulting from the occasional missing curb ramp. RT 1380:12-22, 1392:17-23, 1393:12-23; see also Findings of Fact ¶ 142.

b) Historic Curb Ramp Design Standards

72. Next, Kirola complains that the City's historic curb ramp design standards in effect from 1994 to 2004 resulted in the design and installation of curb ramps that included a half-inch lip in violation of ADA regulations. Dkt. 662, 13:20-22. However, no evidence was presented at trial demonstrating that Kirola encountered a curb ramp with a half-inch lip. Accordingly, she cannot legitimately claim that she suffered an injury that stems from the City's historic curb ramp standards or any curb ramp lip that has not yet been removed under the City's current curb ramp design standards. DTX H04; RT 1981:9-1985:6, 1986:23-1991:24.

c) Sidewalk Inspection Repair Plan

73. Kirola next complains that the SIRP "only inspects and repairs access barriers on a 25 year cycle, and . . . fails to comply with the January 26, 1995 deadline for program access." Dkt. 662, 13:18-20. That argument ignores that SIRP operates in tandem with ASAP, a program which ensures that accessibility complaints regarding sidewalks are addressed and rectified, typically within ninety days. Given that there are 2,000 miles of sidewalks in the City, it is inevitable that Kirola will occasionally experience challenges resulting from cracked or uneven pavement. The fact that defects can and do arise—attributable, for example, to expanding tree roots or occasional ground movement—does not ipso facto demonstrate that there is a defect in any written policy that caused injury to Kirola.

d) Paving Guidelines

74. The City's Paving Guidelines permit the City to defer curb ramp installation for a period of up to twenty-four months in cases where there is a pre-planned project that would require demolition of the newly constructed curb ramp. DTX N23. While acknowledging that she has not been negatively impacted by this policy, Kirola nonetheless contends that she faces a "real threat of injury" given her daily use of sidewalks throughout the City. Id. at 19:1-8. However, no evidence was presented at trial showing that the City has actually deferred installation of a curb ramp under the Paving Guidelines. The mere possibility that the City will delay construction of a curb ramp and that Kirola may be injured as a result is simply "'too speculative to support standing.'" Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (quoting Friends of the Earth, 528 U.S. at 190). As the Ninth Circuit has explained, a plaintiff "cannot manufacture standing through bald assertion, contradicted by the record." Id. (finding that the plaintiff had not shown a real or immediate threat of future injury in regard to the claims asserted). The Court thus finds that Kirola has not established that there is a substantial probability that she will be harmed in the future as a result of the City's Paving Guidelines.

e) UPhAS

76. Kirola complains that the City's facilities transition plan, i.e., UPhAS, fails to require the removal of barriers that deny program access until the particular facility is scheduled for renovation. Dkt. 662, 13:27-14:4. Yet, no evidence has been presented that Kirola has been deprived of meaningful access to any program, service or activity because of the lack of access improvements at an existing facility. Though Kirola complained of purported barriers at a few libraries and pools, there is no evidence that she was denied meaningful access to other facilities within San Francisco or the City's programs and services in their entirety. Moreover, every library Kirola uses regularly was completely renovated prior to trial, and the three pools about which she complained have since been renovated or are scheduled for renovation. The Court thus finds that Kirola's has not shown that she suffered any injury that stems from UPhAS.

f) The RecPark Website

77. Kirola challenges "the City's policy as stated on its [RecPark] website that an 'accessible' park need only provide an 'accessible entrance' and 'at least one recreational opportunity[.]'" Dkt. 662, 13:4-27. Kirola asserts that the RecPark website's definition of "accessible" constitutes a City policy "of general application" relating to program access and argues that the policy is discriminatory because it does not require the City to provide mobility disabled individuals with meaningful and equal access to recreation opportunities. Dkt. 672, 16:6-12.

78. The flaw in Kirola's claim is that it fundamentally mischaracterizes the nature of the information provided on the RecPark website. Despite Kirola's claim to the contrary, the website does not purport to articulate a general policy of what the City considers to qualify as program access. Rather, the information is posted on the website simply to provide the public with information about sites they may wish to visit, and the website invites further inquiry for more detailed information. PTX 3875 [075767].

79. Even if the website defined the meaning of "accessible" as a matter of general policy, Kirola has failed to establish that she suffered any injury as a result of the policy. Of the City's 220 parks, Kirola complained only that the accessible entrance at Alamo Square Park was steep—not that it was inaccessible. RT 1385:5-8. Perhaps more fundamentally, Kirola cannot legitimately allege that she suffered any harm stemming from a website which she never used.

g) New Construction and Alterations

80. Kirola contends that "the City's policies and procedures regarding new construction and alterations . . . do not require a close-out inspection for compliance with federal disability access design standards or specific sign-off from the relevant City official that a project is in full compliance with those standards as built." Dkt. 662, 9:3-10.

81. At trial, Kirola offered no testimony regarding any architectural barriers at any newly-constructed or renovated library, swimming pool or other RecPark facility. In the absence of such evidence, Kirola cannot show that she suffered an injury in fact or that such injury stems from any City policy governing new construction and alterations.

h) Maintenance Policies

82. Kirola complains that the City's maintenance policies and procedures "do not set specific and prompt deadlines for the identification and repair of items that are broken, non-operational, or in need of repair." Dkt. 662, 14:9-11.

83. Under 28 C.F.R. § 35.133, public entities "shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities[.]" 28 C.F.R. § 35.133(a). The section, however, "does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs." 28 C.F.R. § 35.133(b); see also U.S. Dep't of Justice Technical Assistance Manual, II-3.10000 Maintenance of Accessible Features ("Where a public entity must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. An isolated instance of placement of an object on an accessible route, however, would not be a violation, if the object is promptly removed.").

84. At trial, Kirola failed to identify a single barrier that she encountered as a result of something being "broken, non-operational, or in need of repair," much less an ADA barrier that existed because of any maintenance policy. Dkt. 662, 14:9-11. The errant stools Kirola encountered on occasion at three libraries have not been shown to be broken, non-operational or in need of repair, nor did they render the particular library—or the library system in general—inaccessible. She also failed to identify any maintenance issue as to any RecPark facility.²¹ Accordingly, the Court finds that because Kirola has not shown that she suffered any injury stemming from the City's maintenance policies, she cannot show any injury resulting from those policies.

i) Grievance Procedures

85. Kirola alleges that the City's ADA grievance procedures violate Title Il's program access requirements on the ground that the City's "written complaint policies and forms make no requirement that disability access barriers be removed within any particular time period, but instead permit the City to take up to two years to remove barriers[.]" Dkt. 662, 14:4-6; Dkt. 672, 25:6-9.

86. Kirola lacks standing to challenge the City's grievance procedure.²² At trial, Kirola testified to having made a single request for the removal of an access barrier; namely, her July 2006 request that the City install curb ramps at the corner of Hayes and Fillmore. RT 1383:19-1384:8, 1391:18-1392:2. The requested curb ramps were installed in April 2008, less than two years after the requests were made. RT 1384:7-8. There also is no evidence in the trial record that Kirola was unable to traverse the intersection or that she was compelled to take a substantially longer alternative route. To the extent that Kirola is complaining about the length of time it took for the City to install the curb ramps, she has presented no evidence to substantiate any injury resulting from such delay or that such delay is attributable to an ineffective grievance procedure.

^22. As will be discussed below, even if Kirola had standing, there is no private right of action to challenge an ADA grievance procedure

j) Safety Hazards Policy

87. Kirola complains that the City has failed to adopt an overarching "written policy or procedure regarding the identification and removal of safety hazards to persons with mobility disabilities." Dkt. 662, 14:15-17.

88. At trial, Kirola failed to offer any testimony demonstrating that she encountered any "safety hazards" at any library or RecPark facility. Though Kirola complained of steep paths at Alamo Square Park, the probative value of such testimony is undermined by the lack of any objective data (such as actual measurements of those paths) to quantify her claim. Additionally, there is no evidence that those conditions denied her program access.

89. The Court is likewise unpersuaded by Kirola's testimony regarding her one-time experience in which her wheelchair was caught in an exposed tree well. The record presented at trial shows that, in fact, there was an unobstructed 48-inch-wide accessible path of travel around the tree well. RT 1383:3-12, 431:3-10; PTX 4140Y. The Court therefore finds that Kirola has failed to establish any actual and concrete injury in fact in regard to the City's policies related to removal of safety hazards. See Lujan, 504 U.S. at 560-61.

k) Self-Evaluation/Transition Plan

90. Kirola asserts that the City has not adopted or implemented a self-evaluation or transition plan in violation of California Government Code § 11135. Dkt. 662, 14:13-25.

91. Section 11135 provides, in pertinent part, 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. Code § 11135(a). Regulations promulgated to implement Section 11135 insofar as discrimination based on physical or mental disabilities is concerned, state that a transition and self-evaluation plan "should be required" by the "responsible State agency." Cal. Code Regs., tit. 22, §§ 98251(a), 98258.

92. The City argues that Kirola lacks standing to challenge any alleged non-compliance with California Government Code § 11135 or its regulations based on her failure to demonstrate that she (1) was deprived program access to any state-funded program or activity or (2) encountered any access barriers to a state-funded program or activity because of the alleged absence of a self-evaluation or transition plan. Dkt. 666, 20:20-24. The Court agrees. At best, Kirola has presented only bare and conclusory allegations of injury resulting from the City's failure to develop and implement a self-evaluation or transition plan. Moreover, there is no evidence that each of the specific programs to which she was allegedly denied access is state-funded or otherwise receives financial assistance from the state. See Cal. Gov't Code § 11135. As such, Kirola has not shown that she suffered any injury that stems from the City's alleged failure to comply with Section 11135 or its regulations.

l) Conclusion

93. Kirola has failed to establish that she sustained any injury which stems from any written policy. A fortiori, she has not shown a likelihood of recurrence, which is necessary for standing where prospective, injunctive relief is sought. Taylor, 488 F.3d at 1199. Thus, separate and apart from the Lujan requirements for Article III standing, the Court finds that Kirola lacks standing to seek the relief she seeks in this action.

4. Substitution of Class Representative

94. Kirola argues that any deficiencies in her standing as a class representative can be rectified by allowing class members who testified at trial to be substituted in her stead. Dkt. 662, 15:4-16:12. As support, Kirola cites several cases where courts permitted such a substitution where the class representative's claims became moot. E.g., United States Parole Comm'n v. Geraghty, 445 U.S. 388, 415 n.8 (1980) ("If the named plaintiff's own claim becomes moot after certification, the court can re-examine his ability to represent the interests of class members. Should it be found wanting, the court may seek a substitute representative or even decertify the class."); Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir. 1977) ("We reverse and remand for a ruling on the outstanding class certification motion, including a determination [of] whether Wade may remain as the class representative despite the mootness of his individual claim or whether putative class members with live claims should be allowed to intervene.").

95. The issue here is not mootness, however, but the lack of standing. As a result, substitution is not an appropriate solution to Kirola's lack of standing. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (finding that the class representative's lack of standing could not be cured by substituting in another class member as the named party, vacating the class certification, and remanding the case to the district court with instructions to dismiss). "[I]f a case has only one class representative and that party does not have standing, then the court lacks jurisdiction over the case and it must be dismissed; if the case only had this one class representative from the outset, then there is no opportunity for a substitute class representative to take the named plaintiff's place because this means that the court never had jurisdiction over the matter." Newberg on Class Actions § 2:8 (5th ed. 2013).

96. In view of the above, the Court concludes that Kirola cannot rectify her lack of standing by substituting additional class members as class representatives. In addition, permitting a substitution at this late stage of the proceeding would be prejudicial to the City and otherwise futile for the reasons discussed below.